The Legal Guide to Supporting Your Family

Guardianship can be a complicated matter for any family to navigate. It’s often thought of as interchangeable with custody, but there are key differences between the two. While a custody decision determines parental rights and visitation rights plus thorny issues of where a child will reside in cases of divorce, guardianship often pertains to instances where either or both parents are unable to care for a child anymore, either through death or severe disability or inability to provide a stable and healthy environment for the child, though there are different types of guardianship depending on the circumstances.

Why Might a Guardianship Be Needed?

For many, it’s unclear exactly what guardianship is and why it might be necessary. Generally, parents establish a legal guardian in their Will in case of their death. Otherwise, without directions from parents, the courts will determine a legal guardian for children, and that might not be the person that the parents had in mind. Whoever is the chosen legal guardian of a child will have considerable responsibilities as well as control over assets left to that child, usually until they turn 18. That’s why it’s so important for parents to make clear their wishes for the guardianship and care of their children in a Will. 

• Temporary Guardianship: When a child or incapacitated adult needs care for a specified period.
• Emergency Guardianship: when a child or adult is in immediate danger.
• Guardianship of a child: until that child reaches the age of 18.
• Adult Guardianship: when adults are unable to provide for their own care and needs.
• Guardianship of a person: taking care of their medical and basic daily needs.
• Guardianship of the estate: managing the financial affairs of a child or adult unable to do so.
• Guardian ad litem: is a lawyer appointed by a court to represent an incapacitated individual or minor child.

How do you establish guardianship?

In the case that a parent is not able to responsibly are for their child, it may be necessary for a loved one to file a petition with the court to establish emergency guardianship over that child. Obtaining guardianship can be complicated, involving interviews and home visits plus, often the objections of the parent(s). It’s a drastic measure, even if done with the child’s best interest at heart, so it’s best to consult with a lawyer before trying to obtain guardianship.

When deciding who to appoint, you should consider if the guardian:

• Is an adult
• Knows your child
• Shares your personal values for raising children
• Is financially stable
• Is both physically and emotionally healthy
• Will present a daily life that you can see your child enjoying
• Will the person be raising your child
• Has a family structure that you envision working well for your child
• Lives in a geographically suitable location
• Loves your child

Adult Guardianship

Questions of guardianship aren’t limited to children either. In cases where adults are left severely impaired or disabled without an advance directive, their legal guardianship is often necessary to make important decisions about ongoing care and end-of-life treatment. Families also have to consider when a loved one is unable to manage their personal affairs or basic needs due to cognitive impairment, as is the case with Alzheimer’s or dementia. It may be necessary for a family member to seek guardianship for that person’s finances and personal care, as well as their medical treatment.

As with questions about the care of children, it’s best to plan for any and all possibilities by crafting the right legal documents with a lawyer to ensure your family isn’t left in the lurch should the worst happen.

Custody isn’t as simple as where your kids are sleeping at night. Questions of parental custody are divided into physical custody—the decision as to which parent a child will live with—as well as legal custody. So what’s the difference, and how are custody decisions made.

• Either parent can petition for child custody as the custodial parent.
• One parent can have sole or primary physical custody as the custodial parent, with the noncustodial parent granted visitation rights.
• While the assumption (particularly among dads) might be that the courts will automatically favor the mother, the system has progressed somewhat with the times, with one in six custodial parents being the father.
• Generally, the rights of the noncustodial parent to visitation are upheld and agreed upon by both parties as best for their children, unless one of the parents represents a risk to their child or are deemed unfit to care for them.

Navigating Custody and Child Support it’s never an easy decision to end a significant relationship, particularly when there are kids involved and questions of child custody and support are raised. Both parents want what’s best for the child but are rarely in agreement. Too often kids become pawns in an ongoing contest between parents as to who can “win” the breakup or inflict the most pain on the other. Whatever the state of your relationship, it’s important to remember as you engage on divorce and child custody, the wellbeing of your children is the most important thing. However you may feel about your soon-to-be-ex-spouse, they’re still a parent to your child and likely to be an important part of their life.

and pertains to decisions made about a child’s upbringing, care, and education. In a split between parents, there is more likely to be joint legal custody unless one parent seeks sole legal custody on the grounds that their ex is not communicative about decisions that should be made jointly, or is negligent or abusive. (If you do think that your former partner is a threat to your child’s wellbeing, you can seek an ex parte custody order for temporary emergency custody.) The issue may be complicated if the child’s parents never married, or if the child’s parentage is in question.

Parents can make their own custody arrangements

to submit for approval by the court. Without an agreement, the issue will go to family court to be decided upon by a judge. An arrangement made between parents is more likely to be agreeable to and adhered to by both parties, so it’s advisable for divorcing parents to work together on a custody agreement, if possible.

Can also come about due to a remarriage, a move out of state, or a new job with longer hours. Generally any material change to a parent’s life that affects a custody arrangement. Parents can also work out their own changes to submit to the court, though without an agreement the matter will go before a judge for a final decision. Barring that, though, legal custody and decisions should be shared in the spirit intended, which is always what’s best for the child.

Both physical and legal custody can be either sole or joint

Depending on what the parents request and what the court deems appropriate. In the case of joint physical custody, the children will split their time between households on days/weeks agreed to by the parents or, if they fail to agree to, a schedule imposed by the courts. As with most things related to your children in a divorce, it’s ideal if the parents can come to an agreement that works best for the kids rather than having the court intercede.

In the event that a child’s parents are unable or unwilling to provide adequate care, a close family member can go to court to seek custody of the child. The relative must demonstrate the unfitness of the child’s current parent or guardian and why the child’s best interests would be served with a new arrangement.

Child Support

Child support is another big hurdle in the process of splitting from a partner with whom you have a child (or children). Once the matters of the custodial parent are settled, the court may require that the non-custodial parent pay support for the care and upkeep of their children.

Given that there are likely hard feelings and considerable love lost between you and your ex, it may be a tough pill to swallow to send money each month to their former partner. But it’s worth considering that these funds are to help take care of your child, which should always remain the top priority of any separated couple no matter how they feel about one another.

The courts will determine the amount due for child support based upon state guidelines, although it can deviate if there are mitigating circumstances, such as an increase or decrease in income or a change in the cost of living. On average, payments for child support run around $430 a month. In the case of non-payment, the courts and support enforcement agencies from the state will seek to garnish wages or seize physical property and tax refunds until the owed amount is paid.

Family law matters are difficult to navigate, particularly if you want to push for custody or ensure that your parental rights are preserved. Working with a lawyer is the best way to make sure you’re fairly represented throughout the process.

As your children grow up they gain independence, and with that autonomy comes the legal issues that adulthood (or near-adulthood) brings. Parents never stop worrying about their kids, and having teenagers brings the possibility of a name change; cyberbullying at school; traffic tickets as a young and inexperienced driver, and landlord issues that can arise as a first-time tenant. And as much as you want them to be able to learn by making mistakes on their own, you need to ensure that they’re protected against any serious legal repercussions.

Your name is how the world identifies you, but it’s not always the case that your name matches how you see yourself, or how you wish to be seen. There are a lot of reasons for a name change; whether you want to change your name to match your new family or your personal pronouns, there’s a relatively straightforward process for doing so legally.

Reasons You May Need A Name Change

Marriage is the reason we most associate with the name change process, but there are a number of other reasons for people to seek a name change for themselves (or their child):

• Divorce
• Conforming with your identity
• Adoption
• Personal preference

Whatever the reason, there’s a process to change your name to something of your choosing, and while it may seem simple, you want to be sure you get the name change process right to avoid any mistakes.

What is Cyberbullying?

Bullying has long been a problem that worries every parent, and technology has only made it easier for kids to be victims of bullying in and out of school. While many of us are no stranger to harassing online behavior—4 in 10 adults have been subjected to online harassment—it’s not something that we want our kids to have to experience, given the effects it has on adolescents and teens. Fortunately, there are increasing legal options for parents to protect their kids against cyberbullying.

What constitutes cyberbullying?

As terrible as classroom or school yard bullying are, it used to be that at least students could be safe within the walls of their own home. Sadly, with the advent of cyberbullying, a child being bullied can receive hurtful, demeaning, or even threatening messages through: Text Messages, Messaging Apps, Social Media, Email.

Cyberbullying presents particular harm in that it enables persistent targeting, and social media offers a forum where those messages can be amplified and malicious statements, even if untrue, can live permanently. Critically, all of this takes place outside of the purview of parents and teachers, which means adults may have no idea of the source of a child’s depression and anxiety, even if they can plainly see the effects.

• Withdrawal from friends and family;
• Changed behavior in schoolwork or home life;
• Nervousness or secrecy about digital devices and what happens on them; or
• Changes in mood, appetite, and sleep.

We can’t stamp out cyberbullying entirely, but parents and guardians can help kids to avoid and fight back against it when the bullying arises. As much as your child may hate it, parents should be aware of what kids are doing online. Also, look for the warning signs outlined above, particularly if those mood and behavior changes correspond with device use.

In cases of bullying through social media, parents should use the block and reporting features offered by most platforms and document instances of bullying for use with school administrators or law enforcement.

Parents can also avail themselves of anti-bullying policies in place at schools and possibly anti-bullying and cyberbullying laws that may be on the books in their state. Even though cyberbullying may occur after hours and off school grounds, it often takes place between classmates and can be magnified by other students. Most schools have their anti-bullying policies available online, and any responsible administrator will treat the issue with the seriousness it deserves.

In instances that rise above social media blocking and reporting to school, cyberbullying may be a legal issue, and parents can choose to take steps to resolve the problem. Almost every state has laws regarding cyberbullying. While not each has language covering off-campus incidents, federal law allows schools to take action in cases where off-site bullying affects the ability of students to learn and function at school. Cases involving threats of violence, invasion of privacy, sexually explicit photos or messages, or hate crimes rise to the level of criminality and should be reported to the police.

We try to do what we can to protect our kids from anything that threatens their health and happiness, but occasionally we need help in doing so. With questions about how to handle cyberbullying, reaching out to a lawyer to discuss options ensures that the proper steps are taken to stop and prevent the problem.

Traffic tickets are an unfortunate reality of life. Given that many of us start driving at sixteen and continue to drive for five, six, even seven decades thereafter, it’s inevitable that we’re going to have to deal with speeding tickets, parking violations, and fender-benders not just for ourselves but, our children as well. Knowing what to do when these problems arise and knowing when we need a lawyer can help us keep our families on the road and out of trouble (and traffic court).

Traffic Terms You Should Know

There are multiple types of offenses in traffic law that are handled depending on the severity:

Infractions: Most of what we think of when we think about traffic tickets — getting pulled over for speeding, missing a stop sign, or having a headlight out — can be considered an infraction. These are less serious than violations but, a breaking of the rules nonetheless, and subject to fines and possibly a court date, if the driver wishes to challenge the ticket.

Violations: These fall into the non-moving and moving categories. Non- moving violations include parking tickets and faulty equipment in your car. As the name suggests, moving violations occur when the car is in motion; ranging from a simple red light ticket to the more serious instances of driving under the influence (DUI) or vehicular homicide, which can rise to the level of a felony.

Fines: Even in less serious cases, dealing with the fines associated with traffic tickets or a day in traffic court is a burden on the average family. Tickets can cost anywhere from a couple hundred to a couple thousand dollars, depending on where you live and the severity of the offense. And even if you can afford to simply pay it, that act is considered an admission of guilt and the points associated accrue to your license, which can lead to higher insurance rates and possibly the suspension of your license.

Should I argue my case in traffic court?

Given the stakes, it’s understandable that people want to go to court to fight a traffic ticket and avoid the mark on their record. Traffic court might seem less daunting than “regular” court, but it’s certainly not the place to test out your skills at self-representation if you’re uncertain of the case you’re trying to make. Drivers are afforded the right to have legal representation at their proceeding, and in cases where the outcome might result in the loss of license and/or considerable fines and punishment. Also for new or young drivers, the impact can be magnified in terms of high insurance or restrictions.

Drivers can look to get their ticket dismissed by arguing that the ticketing officer didn’t have the necessary vantage point to see the infraction or that their subjective judgment was off, or that mitigating factors are responsible for the violation, like an emergency condition that caused you to inadvertently break the law.

• Your name, address, and driver’s license information
• Date and time of day
• Location of the police officer relative to your car
• Weather conditions
• Road conditions and lighting
• Traffic conditions
• Readings from their radar
• Insurance information

A traffic lawyer might seem unnecessary or unaffordable, but if you’re concerned about the potential revocation of your driver’s license, you should consider legal help in working through the traffic court process and presenting your case for dismissal to a judge. And, at the very least, getting professional advice on how to handle your case and the nuances of traffic court can help a driver’s confidence.

Moving out on your own at eighteen is a huge milestone in the life of any young adult, and while finding your own place is a big deal, it’s also a significant responsibility. Living in a space not owned by your parents brings the possibility for landlord-tenant disputes that could turn ugly if not properly resolved.

With any luck, you’ve entered into an agreement that outlines both your and the landlord’s responsibilities and the penalties that result from failure to meet those requirements. While it might be tempting to take a dispute into your own hands, particularly for egregious violations, that approach can lead to bigger issues, even for a seasoned tenant. There are laws that can and must be adhered to if the matter is going to require resolution from the legal system.

New tenants should be cautious entering into any lease to avoid ending up at the mercy of a bad landlord. Terms in a lease don’t just protect landlords; they lay out what the tenant is owed and what they’re protected against, provided that they honor the agreement. As a tenant, you have not only the right to a safe and habitable premises and privacy, you’re protected against discrimination and having to pay a security deposit beyond state limits.

While there are several avenues for resolving a dispute with a landlord, most issues between landlord and tenant are dealt with in a simple conversation between two people, without the law getting involved, provided that there has been good communication and a solid relationship over the tenancy. But in cases where a landlord is acting in bad faith; refusing to negotiate; or meet the terms agreed to in the lease, you can work with a mediator to resolve the issue before taking your dispute to arbitration or pursuing a case in small claims court. Whatever path you choose, it’s good to seek help with landlord-tenant disputes from a legal expert who understands what your next steps should be.

One of the most important things you can do for your family is also one of the least pleasant: planning for a time when you’re no longer there to care for them. No one is too young or too poor to create an estate or a Will, particularly if there are children involved that need care after your passing. Having an estate planning checklist helps to ensure that your loved ones and property are handled according to your wishes and not left up to family bickering or court cases.

Most people recognize that a Last Will & Testament is an important thing to have, and yet only 4 in 10 Americans have a Will, with that number even smaller among young people. Grim as it may be, creating a simple Will manages your property, children, and pets in the case of your untimely death. As, without a Will, you’re leaving the disposition of all of those things up to a court to determine. In other words, if you’re old enough to have assets, you need a Will.

A Will requires:

• A Declaration of yourself as being of sound mind and body, and of your identity and that of your heirs.
• An Executor to manage and safeguard your assets and distribute them according to your wishes.
• A Guardian to care for your young children if any.
• Beneficiaries who will receive your assets.
• An accounting, or list, of your Assets.
• A listing of Bequests, the gifting of certain items to specified beneficiaries.
• Any Administrative Provisions regarding the duties and powers of your executor or trustees.
• Your specified Funeral Wishes (burial vs. cremation, funeral home).
• Trust Provisions to care for any children.

It’s important to find people that you can trust and rely upon for the key roles outlined in your Will. The executor needs to be someone who knows, not only where to find your Will in the case of your untimely death, but also how to properly and fairly follow through on its terms. In addition, knowing how to manage what might be a challenging and possibly contentious time for your family is critical.

For parents of young children, a guardian whom they and their kids both trust is essential. Parents of young children may also choose to set up a trust in their will, where the assets designated for the children are left in the care of an executor until they are of age to assume control. As a guardian, an executor must be someone that the parents trust to look out for the needs and care of their children.

Wills aren’t exclusively for after we’ve passed on. A Living Will also known as an advance directive, differs from a last will & testament because it outlines wishes for treatment in the event we’re incapacitated and need life-sustaining care. You can also appoint a health care agent using a Healthcare Power of Attorney (POA) to ensure that your Living Will is adhered to and for any decisions that might fall outside of its purview. In the event that you change your mind about decisions regarding your treatment, you can revoke or cancel your Living Will with the help of a lawyer.

If you have wishes regarding what treatment you would or would not like to receive in the event that doctors need to take life-saving measures, you can let those be known through a Physician Orders for Life-Sustaining Treatment (POLST) document. The POLST is completed by your physician in talking with you about your preferences and needs to be signed by both parties in order to have effect.

You also have to consider hospital privacy; specifically, ensuring that family and legal representatives are able to get needed information about your condition in order to make any necessary decisions about treatment. A Health Insurance Portability and Accountability Act (HIPAA) release form allows designated individuals to get otherwise guarded information from doctors; without it, they may be left in the dark, no matter how close they are to you.

These forms are very important as your children graduate from high school and turn eighteen because you can no longer receive any medical information on your adult child without proper HIPAA release. In addition, the same living will and health care POAs need to be executed, preferably before they depart for college or the job market.

Generally there are four types of Power of Attorney: Durable, General, Specific, Springing.

Depending on your needs, you can have a specific or springing POA to deal with a particular matter, with a springing set to enact under a specified future event and a specific POA only for a set period of time. You can also have a durable POA, which offers greater latitude to your designated representative to handle your medical and/or financial affairs once you are incapacitated. Again, this is not just for parents, everyone including adult children should create appropriate POAs.

You may not always be able to handle every bill or financial transaction, whether due to hospitalization or other reasons, and that’s why you should have a Financial Power of Attorney in place as well as a healthcare POA.

FINANCIAL POA

A financial POA gives an agent of your choosing the ability to handle your financial matters if you are incapable of doing so yourself. While the agent has a fiduciary responsibility to act in your best interest in their decisions, it’s still important to pick someone trustworthy and reasonably knowledgeable.

HEALTHCARE POA

A healthcare POA gives the agent the power to make decisions for your medical care and treatment for the period when you’re incapacitated. Like a financial POA, you want to make sure you choose someone you trust, plus someone with the knowledge and ability to comply with your wishes.

If you’re looking to plan for any possibility—and you should—you will want to make sure that you have a durable POA. Other Powers of Attorney cease to be effective once you’re incapacitated, which is when you definitely need someone acting on your behalf. A Durable Power of Attorney can go into effect immediately or once you’ve become incapacitated and will grant your agent the power to handle your assigned affairs for that period of incapacitation.

Planning for the end of your life can be complicated, and more than a little depressing, but it’s important that you openly discuss this for you and any adult children. Don’t leave your family with an even greater burden than your loss already represents.

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