Monday, May 14, 2018

Custody Problems

Custody Problems

Sometimes, a marriage or relationship ends badly. If children are involved, however, the former spouses must still communicate and cooperate to some degree, but child custody arrangements don’t always go according to plan. Custodial interference by a parent is one of the major problems that may arise after divorce or breakup, or in some non-divorce situations involving children. Here you will find tips on what to do if the other parent doesn’t fulfill his or her obligations under your parenting agreement or violates a court order related to custody or visitation. This section also includes information on out-of-state moves in child custody situations, parental abduction, and more.

Interference with Custody or Visitation

One of the biggest child custody problems is interference. This occurs when one or both of the parents intentionally disobeys the visitation schedule, fails to take custody of the children at the agreed-upon dates, or otherwise fails to live up to the parenting agreement. Sometimes this is done in order to retaliate against the other parent or simply to extend (or limit) one’s time with the children. Since a parenting agreement carries the force of law as a court order, failure to follow its directions can lead to criminal sanctions.

Interference can happen with custody or visitation, by the custodial or noncustodial parent. But not all interference is considered a violation of the court order. For example, protecting a child from danger; being late because of bad road conditions or other such circumstances; or honoring previous agreements that deviate from the parenting plan (such as a summer trip) are generally okay.

Types of Custodial Interference

There are countless examples of custodial interference, but here are some of the more common ways in which it may occur:

  • Refusing to hand off child to the other parent for a scheduled visitation
  • Limiting child’s telephone or online contact with the other parent
  • Intentionally failing to return the child at the predetermined time
  • Visiting the child during the other parent’s scheduled time with the child

Child Custody and Relocation

It’s sometimes necessary for one or both parents to move out of the area after a divorce, often for work or for more affordable housing, but this presents a problem for child custody arrangements. Relocation is okay as long as the parents have signed a relocation agreement and subsequent change in the parenting plan. But if there is a dispute over the move, the court may step in decide whether the relocation is in the best interests of the child.

Often, the original child custody arrangement and parenting plan will stipulate whether relocation is allowed. Some states require the custodial parent to provide advance written notice of an intended move to the noncustodial parent. States have different ways of determining whether relocation is appropriate in child custody cases and the terms for doing so; talk to an attorney for more details.

Virtual Visitation

Actual, physical time spent with parents cannot be replaced. But family courts are increasingly offering “virtual visitation” as the next-best thing under certain circumstances. A virtual visitation is one that uses video conferencing (such as Skype) or other such methods to provide the noncustodial parent and child a chance to connect. In fact, virtual visitation is one way to help children stay connected to noncustodial parents who either live far away, are traveling, or otherwise unable to meet the child in person.

Free Consultation with a Utah Custody Lawyer

If you have a question about child custody question or if you need help with custodial interference, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Sunday, May 13, 2018

Parental Liability

Parental liability is the term used to refer to a parent’s obligation to pay for damage caused by negligent, intentional, or criminal acts committed by the parent’s child. Parental liability usually ends when the child reaches the age of majority and doesn’t begin until the child reaches 8 to 10 years old. Today, most states have laws relating to parental liability in various applications.

Parental Liability

Children’s offenses can be civil or criminal in nature. Civil cases are lawsuits brought by a person for money damages. Criminal cases, on the other hand, are brought by the government for violations of criminal law. Many acts can trigger both civil and criminal legal repercussions.

Civil Parental Liability

In most states, parents are responsible for all malicious or willful property damage done by their children. This is called civil parental liability because it’s non-criminal. The parent is obligated only to financially compensate the party harmed by his or her child’s actions.

Laws vary by state regarding the monetary limits on damages that can be collected, the age limits of the child, and the inclusion of personal injury in the tort claim. Hawaii’s parental liability law remains one of the most broadly applied as it doesn’t limit the financial recovery and imposes liability for both negligent and intentional torts by the minor child.

Criminal Parental Liability

Laws making parents criminally responsible for the delinquent acts of their children followed the civil liability statutes. In 1903, Colorado was the first state to enact a law against “contributing to the delinquency of a minor.” At least 42 other states and DC now have laws against contributing to the delinquency of a minor.

Other examples of criminal liability include firearm access and Internet crime related laws. Twenty-eight states and DC have child firearm access prevention laws that, generally, make it illegal for a parent to leave a firearm within reach of his or her child. Modernly, in some Internet access and computer hacking laws cases, a parent can be responsible for their child’s online crimes.

Minors and the Law

Parental liability only applies to your minor or underage children. The age of majority is the age at which a minor, in the eyes of the state law, becomes an adult. This age is 18 in most states. In a few other states, the age of majority is 19 or 21. You may want to check your state’s legal age of majority laws.

A minor is considered a resident of the same state as the minor’s custodial parent or guardian. If your minor child spends time with two parents in two different states, each parent is responsible for the child’s actions while in their care.

Insurance Coverage

Since homeowners or renters insurance includes both property and liability coverage, wrongful acts of children or negligent supervision claims may be covered even if the act took place away from a policyholder’s home. These policies typically cover legal liability in the event that anyone suffers an injury while on the insured property, even if the injury was committed by another household member or the result of negligence on the part of the policyholder.

Free Consultation with a Family Law Lawyer

If you have a question about parental liability in Utah, divorce, custody or other family law matters, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Saturday, May 12, 2018

Domestic Violence and Gun Ban

Domestic Violence and Gun Ban

In the United States, federal law prohibits domestic violence offenders from purchasing, owning, or using guns. Domestic violence gun laws vary somewhat from state-to-state, some stricter and some less strict, but all states must accept the basic federal rules. The domestic violence offender gun ban requires one of two things:

  1. That the abuser has been convicted of a domestic violence felony/misdemeanor.
  2. That the victim has a restraining order against the abuser.

If you are a victim of domestic violence, please read ahead to understand how you can keep guns out of your abuser’s hands. Deadly weapons are frequently used to threaten and potentially injure victims in domestic violence cases (sometimes out of revenge for having contacted the authorities). Understanding the domestic violence gun laws may help protect you and your family from harassment and future violence.

Did the Abuser Commit a Domestic Violence Misdemeanor?

The domestic violence offender gun ban is a permanent ban (on purchasing, owning, or using a gun) if the abuser has been convicted of a domestic violence misdemeanor. But what is a domestic violence misdemeanor?

A domestic violence misdemeanor involves the use or attempted use of physical violence or force, or the threatened use of a deadly weapon, against a person who is in a close personal relationship with the abuser (for example, a spouse, parent, girlfriend or boyfriend). Basically, if the abuser was convicted of a crime for threatening or committing violence against a close relative or significant other, then it’s highly likely that this conviction would count as a domestic violence misdemeanor. If you know the state in which the abuser was convicted, you can also try contacting the district attorney’s office to confirm whether the abuser was involved in a domestic violence misdemeanor.

One of the benefits of a domestic violence misdemeanor gun ban is that the ban applies to abusers in law enforcement, the military, and government employment in which guns are issued. Because of this, domestic violence misdemeanor offenders who are in these positions may get fired — if they are banned from using a gun, then they cannot perform their duties. If you are a victim and you know that your abuser has been convicted of a domestic violence misdemeanor but is working in a job where a gun has been issued, please contact your local police. The abuser could still pose a danger to you and your family with a workplace-issued gun.

Did You Get a Restraining Order?

If you’ve gotten a final restraining order or an order of protection against the abuser, you may be able to prevent the abuser from purchasing, owning, or using a gun for as long as the order lasts. The restraining order has to meet certain requirements, however:

  • The abuser has to be close to you in some way – they should be a current or ex-spouse, the mother or father of your child, or have lived with you at some point.
  • The abuser should have been notified about the restraining order hearing so that they get a chance to attend.
  • The restraining order should specifically prohibit behavior that threatens or creates a fear of physical injury (and should identify the abuser as a threat to the victim’s or child’s physical safety).

Keep in mind that, unlike with domestic violence misdemeanors, the restraining order gun ban does not apply if your abuser is in law enforcement, the military, or government employment in which guns are issued as part of the official duties of the position. State laws vary, however, so please explore your available options with a qualified local attorney. To help you determine if the language of your particular restraining order qualifies for the gun ban, contact a local attorney or a helpline such as the National Center on Protection Orders.

What to Do if You Think the Abuser Has a Gun

Once you determine that you have a) a restraining order, or are sure that b) the abuser was convicted of a domestic violence misdemeanor or felony, contact local law enforcement and let them know the reason why you believe the gun ban applies. Law enforcement will then investigate the situation. The important thing is that you determine whether there’s a strong possibility of a gun ban in your case. The police can sort out the details. Contacting a domestic violence attorney or legal aid group is also a good option, whether for guidance on what to do legally or simply to receive counseling.

The domestic violence offender gun ban is a useful tool for protecting you and your family. The gun ban removes a potentially deadly weapon from the hands of your abuser and sends a clear message: you have the law and local law enforcement authorities on your side.

Free Initial Consultation with a Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Friday, May 11, 2018

Paternity

As a Child Custody Lawyer, I’ve often asked about family law and paternity questions. The term “Paternity” refers to the legal establishment of who is the father of a child. While the identity of a child’s biological mother is usually by nature easy to establish, the father’s identity may in some cases be uncertain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.

Paternity

Paternity Actions in Utah Courts

An action to establish paternity is a civil proceeding. Most states require that paternity be established by a “preponderance of the evidence,” which means that it must be more likely than not that the man is the father of the child. Other states, like New York, apply a higher standard, requiring clear and convincing evidence of paternity. In reality, however, the different standards have little practical impact in light of recent developments in scientific testing.

DNA Testing and Utah Paternity

The advent of DNA profiling was a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child’s genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father’s paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.

Establishing Paternity in Utah

DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or “alleged”) father in a paternity action that is the basis for child support collection may require proof that he is the child’s father before he consents to payment of support. In other cases, the mother may contest the putative father’s paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.

Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child’s mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer.

Free Consultation with a Utah Paternity Lawyer

If you have a question about child custody question or need family law or paternity help, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Thursday, May 10, 2018

Offer in Compromise or Bankruptcy?

Tax settlement firms love to advertise the offer in compromise, a method for resolving IRS back taxes that theoretically involves payment of a small portion of the outstanding tax bill owed and forgiveness of the rest. Tax settlement firms love to imply that the IRS will simply forgive the majority of your back taxes once they get involved. Oh, if only this were true! Although it’s not impossible to get an offer in compromise approved, there are some big hurdles for taxpayers in the quest for tax debt relief.

Offer in Compromise

Can an Offer in Compromise Help Me Avoid Bankruptcy?

Tax Masters was accused of fraud and deception for false advertising, in large part because the company claims to be able to settle tax debt for pennies on the dollar when in most cases this isn’t possible. Similarly, TV’s “Tax Lady”, Roni Deutch, found herself in hot water after misrepresenting the abilities of her law firm to hundreds of customers. Nevertheless, most promises of tax settlement, whether fraudulent or not, refer to offers in compromise. How likely is that your offer to the IRS will actually be approved? Unfortunately, the majority of offers in compromise are turned down. In most years, less than 20% of settlement offers are accepted by the IRS.

Eligibility for an Offer in Compromise

As a threshold matter, you’ll need to prove to the IRS that you’re eligible for an offer in compromise. In order to do this, you’ll have to demonstrate that there is serious doubt that your tax bill will EVER be paid. That’s right, the IRS only accepts offers in compromise when it’s become readily apparent that the taxpayer simply can’t pay the full balance owed. All assets must be disclosed to the IRS as part of the process, if you fail to disclose assets and the IRS later finds out about it, you risk revocation of a successful offer. The bottom line is this: if you have resources you’ll likely have to pay the full balance of your back taxes in installments (with late penalties and interest) or the government will levy your property by garnishing wages or repossessing a car. Think of it as a matter of public policy. If it were easy to escape a tax bill, people wouldn’t pay taxes and the IRS certainly doesn’t want to incentivize people to skip out on their “civic duty.” Death and taxes, death and taxes, remember?

Amount of a Utah Offer in Compromise

If you’re dead set on pursuing an offer in compromise, despite the rather long odds, it is important to be strategic about how much you offer. The amount of the offer must be equal to the present net value of your assets plus the present value of the total sum the IRS could collect under a monthly payment plan. To put it simply, the IRS will evaluate the value of your assets minus any debts that encumber the property as well as your income. If you owe $50,000 in back taxes but make $150,000 per year in annual salary and own a home with significant equity, your offer will be rejected unless it contemplates 100% payment. Taxpayers that have assets in excess of their tax debt will very likely have their offer to the IRS rejected.

Offer in Compromise or Bankruptcy?

Can an offer in compromise help you avoid bankruptcy? Well, yes, assuming you can get the offer approved and the primary debt problem you face is tax debt. Tax debt is only dischargeable in bankruptcy if it is at least three years old and the following conditions are met:

  1. The tax must have been due and owing for a period of more than 3 years (think April 15th of the following tax year, your 2006 taxes are due April 15th of 2007). The taxes that meet this rule would be taxes where the due date is more than three years before the bankruptcy case was filed;
  2. The tax return for the tax debt at issue must have been filed more than 2 years before the bankruptcy case was filed;
  3. The tax debtat issue has been assessed by the taxing authority for more than 240 days prior to the filing of the bankruptcy case (federal taxes are usually assessed within 6 weeks of the filing of the return, the States vary);
  4. The debtor, in filing the return must not have attempted to evade the paying of the tax nor can the return filed by the debtor be a willfully “fraudulent” return. The above is a brief summary of the rules or criteria that must be met before a personal income tax may be discharged in a bankruptcy case.

Assuming the above conditions are satisfied, your back taxes will be dischargeable in bankruptcy. However, if your returns haven’t been filed or the tax debt at issue is not yet three years old, a successful offer in compromise would help avoid bankruptcy and resolve your outstanding tax debts. However, as we’ve seen, the problem is getting the offer in compromise approved.

Free Consultation with a Utah Attorney

If you are here, you probably have an offer in compromise issue or a possible bankruptcy you need help with, call Ascent Law for your free tax law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Wednesday, May 9, 2018

When is Bankruptcy an Option for a Small Business?

When a business owner is thinking about bankruptcy, the best next step to take is to talk to a Bankruptcy Lawyer. The next question to ask is whether the business is a corporation, a partnership, or a proprietorship.  Corporations, limited liability companies and partnerships are legal entities separate from their shareholders or partners.  They can file Chapter 7 or Chapter 11 bankruptcy in their own right.  Proprietorships, however, are just an extension of the owner:  they can’t file bankruptcy alone. The proprietor must file bankruptcy, since the assets and the liabilities of the business are really just one form of assets of the proprietor.  The individual owner may file Chapter 7 bankruptcy, Chapter 11 or Chapter 13 (if the debt limits are met).

When is Bankruptcy an Option for a Small Business

Reorganize or liquidate your Business?

The next question is whether the business should be reorganized or liquidated. To answer this question, you have to know what has caused the problems the business now faces and what are the prospects for change. Reorganization can’t create a market; increase gross revenue, or make up for a poor fit between the skills available and the skills required to run the business.  On the other hand, reorganization could free up cash from servicing the old debt to permit current operations; permit rejection of leases or contracts that are no longer advantageous (an expensive facility lease or improvident equipment purchase); or prevent the loss of vital assets or cash to creditor collection actions.

In between Chapter 7 liquidation and reorganization, a liquidating Chapter 13 or Chapter 11 could provide a breathing space for the owners to sell the business as a going concern or its assets in something other than a fire sale.  The resulting proceeds could pay taxes or unpaid salaries; sale of the business could provide ongoing jobs for the work force under new ownership.  The bankruptcy could then be converted to Chapter 7 or dismissed if bankruptcy protection is no longer needed.  The court will probably condition dismissal of the case on payment to creditors of the sale proceeds.

One must also ask whether management has the resources and desire to engage in the reorganization process. Bankruptcy reorganization in Chapter 11 requires significant time on the part of the owners and managers to comply with the requirements of the bankruptcy system, interface with counsel, and negotiate with creditors.  It is usually expensive as well.

Bankruptcy and Businesses

The ‘bankruptcy bargain’ is that, in exchange for the protection of the automatic stay and other bankruptcy protections, the debtor provides full disclosure of its financial condition to creditors and the court, both at the beginning of the case and on a monthly basis thereafter,  and operates as a fiduciary for its creditors while the bankruptcy is ongoing.

A reorganization can drain an already stressed organization of management’s time to participate in bankruptcy proceedings and money since the legal expenses are significant.  Most reorganizations fail, usually for lack of a real plan to solve the problems.

One should also consider whether the business is one that could be started up again after a liquidation of the current business.  Businesses that require little capital, have few assets, or are really just extensions of the owner’s skills and personality might not be amenable to being reorganized.  The owners may be better off liquidating the business, in or out of bankruptcy, and starting over in a fresh entity.  This can be a complex issue and requires good professional advice to do correctly.

Chapter 7 may be best, either for the individual or a corporation, when:

If the business has no future, it has no substantial assets or qualities that cannot be reproduced after bankruptcy, or the debts are so overwhelming that restructuring them is not feasible, reorganization won’t help.

Individuals can get a discharge of the dischargeable debts and a chance to start over.  However, corporations don’t get discharges, so a corporation won’t get a fresh start in a Chapter 7, the way an individual does. Nonetheless, a Chapter 7 can provide an orderly liquidation under the direction of the trustee and at no expense to the shareholders.  Creditors are assured that they will be paid to the extent of the assets available and the priority of their claim.  Former management is assured that the assets that are available go (after the expenses of the Chapter 7) to pay taxes for which the individuals may be liable.

Meet With a Bankruptcy Attorney

Like any decision pertaining to bankruptcy, whether or not to seek bankruptcy protection for your small business is an issue which should be discussed thoroughly with a bankruptcy attorney.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,

Tuesday, May 8, 2018

Parenting Agreement

The vast majority of child custody cases are able to be resolved before a case needs to go to court. This can happen as a result of informal negotiations between the parents or other parties (and their attorneys) or through alternative dispute resolution processes like mediation or collaborative law. Below is a discussion about parenting agreements and court approval of the same in child custody cases.

Parenting Agreement

What Is a Parenting Agreement or a Parenting Plan?

If the parents or other parties in a custody dispute (and their attorneys) negotiate and resolve all issues related to child custody and visitation, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written agreement. This agreement may be referred to as a “settlement agreement” in some states, while in other states the document may be called a “custody agreement” or “parenting agreement.”

What Should the Parenting Plan Include?

Although one should keep in mind that parenting agreements will vary widely from case to case, these agreements typically cover the key areas affecting the parents’ children, such as:

  • Where the child will live (called physical custody);
  • Visitation schedules
  • Who will be involved in major decisions related to the child’s upbringing and welfare (called legal custody);
  • With whom the child will spend major holidays, birthdays, and vacations (including schedules)
  • How contact with grandparents, family friends, and other third parties will be handled; and
  • How disputes and changes to the agreement will be handled.

Keep in mind that the above are simply some of the most common and important issues dealt with by parents who are splitting up. Parents can customize an agreement in countless ways to their and their children’s specific needs.

Parenting Agreements and Court Approval

The parenting agreement is usually submitted to a judge for final approval. If the custody agreement is part of the parents’ divorce, the agreement is filed in court in the county/district branch of state court where the divorce petition was filed. An informal court hearing may follow, during which the judge may ask some basic factual questions, including whether each party understands and chose to voluntarily sign the agreement. As long as the judge is satisfied that the agreement was fairly negotiated and that it was made with the best interests of the child in mind, the agreement will almost always receive court approval.

Violating a Court-Approved Parenting Plan

In most states, the custody or parenting agreement then becomes a binding court order or “decree,” dictating the parents’ (or other parties’) rights and obligations under the agreement. The parties to the agreement must stick to it or they may face legal consequences. For example, if a parenting agreement has been converted into a court order, and the agreement is violated by a father who repeatedly fails to return his daughter on time after weekend visits, the mother may go to court to enforce the agreement and resolve the matter.

Get Legal Help Drafting a Parenting Agreement

Having a parenting agreement can definitely save you a lot of time, money, and anxiety during a divorce proceeding. However, it’s not always easy for separated parents to speak to each other, let alone come to an agreement. That’s where family law attorneys can make a big difference as they have experience obtaining agreements even in the most contentions of separations. Get help today and find an experienced family law attorney near you.

Recent Posts

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Posted by at No comments:
Labels: ,
Subscribe to: Posts (Atom)