Paternity refers to the legal determination of who is the biological father of a child. Normally, the identity of the biological mother is known yet the father's identity might not be certain. When I started my law practice in 1978, the type of testing available then would only determine if you would be more likely than not to be the biological father.
Today, we have sophisticated DNA testing that allows for a 99.9% certainty of parentage. The DNA sample taken from the child and potential father is examined by a scientist trained to determine the significance of the test samples. DNA testing is generally only done if a party contests paternity. Typically, a presumed father will ask for DNA testing to ascertain the parentage of the child and to insure that if he is legally responsible to pay support, he is paying support for a child that is his.
A potential father may also demand testing to establish that a child is his in order to have legal standing to ask for custody and visitation with the child.
Paternity issues, like most family law issues can have far reaching implications, both financially and emotionally. For these reasons, it is important to secure the services of a qualified attorney experienced in the area of family law.
Tuesday, December 29, 2009
Tuesday, December 22, 2009
Divorce and Health Care for the Unemployed: More Help From Congress
More help for unemployed and divorced spouses
COBRA CONTINUATION HEALTH COVERAGE
In 1986, Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA) health benefit provisions. The law amends the Employee Retirement Income Security Act, the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage that otherwise might be terminated.
WHAT COBRA DOES
COBRA provides certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.
Under COBRA, participants, covered spouses and dependent children may continue their plan coverage for a limited time when they would otherwise lose coverage due to a particular event, such as divorce (or legal separation). A covered employee’s spouse who would lose coverage due to a divorce may elect continuation coverage under the plan for a maximum of 36 months. A qualified beneficiary must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation. After being notified of a divorce, the plan administrator must give notice, generally within 14 days, to the qualified beneficiary of the right to elect COBRA continuation coverage.
EXTENDED COVERAGE PASSED BY CONGRESS
Congress, under pressure to provide additional help for people who have lost their jobs and health benefits, passed legislation to extend federal subsidies to help people pay for their former employer’s health insurance. Lawmakers also agreed to extend the eligibility period to sign up for assistance.
As part of the stimulus bill passed in February 2009, the federal government subsidized 65 percent of the cost for unemployed people who opted to continue their employer’s health insurance coverage. A person can pay to stay on his or her former employer’s group policy — generally for a maximum of 18 months - through the Consolidated Omnibus Budget Reconciliation Act, a federal law better known as Cobra.
But the assistance program was open only to people who lost their jobs through the end of 2009, and the subsidy lasted only nine months, so starting Dec. 1 2009, many people were faced with ending their insurance coverage or paying the full amount.
CONGRESS EXTENDS ELIGIBILITY FOR THE UNEMPLOYED
The new law extends the eligibility to sign up for the program through the end of February 2010, so people who are laid off in January and February will qualify. It also adds six months of subsidies, extending coverage assistance for a total of 15 months.
The Senate passed the legislation on Saturday to extend the program as part of a $636 billion defense spending measure, which was signed by the president later that day.
The House had passed the proposal last week.
Without subsidies, the average monthly Cobra payment for a California family is $1,107, similar to the national average, according to Families USA, a consumer advocacy group. With the federal subsidy paying 65 percent of the cost, that payment drops to $388.
The extra help is important because even if a health overhaul bill is passed before the end of the year, it's not likely to help people immediately, said Anthony Wright, executive director of Health Access California, a consumer advocacy group.
Early Monday, Senate Democrats prevailed 60-40 in a procedural vote that showed they had the votes they need to pass the Senate's overhaul bill.
The measure, which is on track to be passed before Christmas Eve, would still have to be reconciled with the health care bill passed by the House in November.
"This is an important bridge, not just for folks who are unemployed but those who find their new job or temporary job and do not have health coverage," said Wright, adding that many of the key proposals in a reform bill won't go into effect for several years.
Wright said the extra aid is especially helpful for those in California, where the unemployment rate was 12.3 percent last month. The national average is 10 percent.
MORE INFORMATION ON YOUR COVERAGE
Divorced spouses may call their plan administrator or the EBSA Toll-Free number, 1.866.444.EBSA (3272) if they have questions about COBRA continuation coverage or their rights under ERISA.
COBRA CONTINUATION HEALTH COVERAGE
In 1986, Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA) health benefit provisions. The law amends the Employee Retirement Income Security Act, the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage that otherwise might be terminated.
WHAT COBRA DOES
COBRA provides certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.
Under COBRA, participants, covered spouses and dependent children may continue their plan coverage for a limited time when they would otherwise lose coverage due to a particular event, such as divorce (or legal separation). A covered employee’s spouse who would lose coverage due to a divorce may elect continuation coverage under the plan for a maximum of 36 months. A qualified beneficiary must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation. After being notified of a divorce, the plan administrator must give notice, generally within 14 days, to the qualified beneficiary of the right to elect COBRA continuation coverage.
EXTENDED COVERAGE PASSED BY CONGRESS
Congress, under pressure to provide additional help for people who have lost their jobs and health benefits, passed legislation to extend federal subsidies to help people pay for their former employer’s health insurance. Lawmakers also agreed to extend the eligibility period to sign up for assistance.
As part of the stimulus bill passed in February 2009, the federal government subsidized 65 percent of the cost for unemployed people who opted to continue their employer’s health insurance coverage. A person can pay to stay on his or her former employer’s group policy — generally for a maximum of 18 months - through the Consolidated Omnibus Budget Reconciliation Act, a federal law better known as Cobra.
But the assistance program was open only to people who lost their jobs through the end of 2009, and the subsidy lasted only nine months, so starting Dec. 1 2009, many people were faced with ending their insurance coverage or paying the full amount.
CONGRESS EXTENDS ELIGIBILITY FOR THE UNEMPLOYED
The new law extends the eligibility to sign up for the program through the end of February 2010, so people who are laid off in January and February will qualify. It also adds six months of subsidies, extending coverage assistance for a total of 15 months.
The Senate passed the legislation on Saturday to extend the program as part of a $636 billion defense spending measure, which was signed by the president later that day.
The House had passed the proposal last week.
Without subsidies, the average monthly Cobra payment for a California family is $1,107, similar to the national average, according to Families USA, a consumer advocacy group. With the federal subsidy paying 65 percent of the cost, that payment drops to $388.
The extra help is important because even if a health overhaul bill is passed before the end of the year, it's not likely to help people immediately, said Anthony Wright, executive director of Health Access California, a consumer advocacy group.
Early Monday, Senate Democrats prevailed 60-40 in a procedural vote that showed they had the votes they need to pass the Senate's overhaul bill.
The measure, which is on track to be passed before Christmas Eve, would still have to be reconciled with the health care bill passed by the House in November.
"This is an important bridge, not just for folks who are unemployed but those who find their new job or temporary job and do not have health coverage," said Wright, adding that many of the key proposals in a reform bill won't go into effect for several years.
Wright said the extra aid is especially helpful for those in California, where the unemployment rate was 12.3 percent last month. The national average is 10 percent.
MORE INFORMATION ON YOUR COVERAGE
Divorced spouses may call their plan administrator or the EBSA Toll-Free number, 1.866.444.EBSA (3272) if they have questions about COBRA continuation coverage or their rights under ERISA.
Monday, December 21, 2009
Recession and Divorce: Help Is on the way
Help from the Government may be a silver lining
No one can argue with the fact that this nation has suffered the worst recession since the Great Depression. Everyone has experienced some kind of financial setbacks. Many have lost their jobs, homes, and their sense of worth.
Even harder hit are people going through a divorce. Even in the best of economies, the financial and emotional toll taken on people engaged in a divorce is high.
Washington is responding in their own way to the problems by creating stimulus programs to ease the pain. One of the programs on the verge of phase out may be getting new life and be broadened to include other steps to help those in need of financial relief. The programs I am referring to includes the First Time Homebuyer Credit and Unemployment Benefits.
This program is being extended by H.R. 3548.
The House is poised to send the White House a bill extending aid to over a million people in danger of exhausting jobless benefits and additional tax credits for prospective homebuyers crucial to rejuvenating the housing market.
The $24 billion package also contains tax credits aimed at struggling businesses. The House is scheduled to vote on the legislation Thursday, a day after the Senate passed it 98-0.
With some 7,000 people running out of unemployment benefits every day and the current $8,000 tax credit for first-time home buyers set to expire at the end of the month, President Barack Obama is expected to quickly sign the measure into law.
House Majority Leader Steny Hoyer, D-Md., said the bill was "vital to Americans who have lost their jobs as a result of the deepest recession in over three-quarters of a century."
The bill would provide every American running out of unemployment insurance benefits this year with an additional 14 weeks. The out-of-work in states with jobless rates at 8.5 percent or greater would get six weeks on top of that.
It would also extend for seven months the $8,000 tax credit for first-time homebuyers that were enacted as part of the $787 billion stimulus package passed last February. The program would be expanded with a $6,500 credit for homebuyers who have lived in their current residences for five years.
Finally, it would allow businesses that have incurred losses in 2008 and 2009 to seek refunds for taxes paid on profits over the past five years.
The package, said Sen. Jeanne Shaheen, D-N.H., a leader on the unemployment issue, will "help nearly 2 million Americans who are still unable to find work, protect small businesses struggling in this challenging economic climate and stimulate economic activity to help create jobs and grow our economy."
The extension would be the fourth since June of last year and could result in giving an out-of-work person in one of the harder-hit states up to 99 weeks of benefits, well above the previous record of 65 during the 1970s.
Supporters argued that this help was necessary when 15 million unemployed are competing for about 3 million jobs and the unemployment rate continues to inch up despite some signs of economic recovery.
"There is no place today in the United States that does not see a serious crisis in unemployment," said Democratic Sen. Jack Reed of Rhode Island, where the 13 percent unemployment rate exceeds the national rate of 9.8 percent.
The $2.4 billion cost of extending unemployment benefits is offset by extending through June 2011 the federal unemployment tax that employers pay for each employee.
All families struggling with job losses, devalued homes and continued economic uncertainty will benefit from this bill. The Bill is clearly good news for those people trying to sell their home as part of a divorce settlement and trying to make ends meet while they look for new employment to support themselves and their children.
No one can argue with the fact that this nation has suffered the worst recession since the Great Depression. Everyone has experienced some kind of financial setbacks. Many have lost their jobs, homes, and their sense of worth.
Even harder hit are people going through a divorce. Even in the best of economies, the financial and emotional toll taken on people engaged in a divorce is high.
Washington is responding in their own way to the problems by creating stimulus programs to ease the pain. One of the programs on the verge of phase out may be getting new life and be broadened to include other steps to help those in need of financial relief. The programs I am referring to includes the First Time Homebuyer Credit and Unemployment Benefits.
This program is being extended by H.R. 3548.
The House is poised to send the White House a bill extending aid to over a million people in danger of exhausting jobless benefits and additional tax credits for prospective homebuyers crucial to rejuvenating the housing market.
The $24 billion package also contains tax credits aimed at struggling businesses. The House is scheduled to vote on the legislation Thursday, a day after the Senate passed it 98-0.
With some 7,000 people running out of unemployment benefits every day and the current $8,000 tax credit for first-time home buyers set to expire at the end of the month, President Barack Obama is expected to quickly sign the measure into law.
House Majority Leader Steny Hoyer, D-Md., said the bill was "vital to Americans who have lost their jobs as a result of the deepest recession in over three-quarters of a century."
The bill would provide every American running out of unemployment insurance benefits this year with an additional 14 weeks. The out-of-work in states with jobless rates at 8.5 percent or greater would get six weeks on top of that.
It would also extend for seven months the $8,000 tax credit for first-time homebuyers that were enacted as part of the $787 billion stimulus package passed last February. The program would be expanded with a $6,500 credit for homebuyers who have lived in their current residences for five years.
Finally, it would allow businesses that have incurred losses in 2008 and 2009 to seek refunds for taxes paid on profits over the past five years.
The package, said Sen. Jeanne Shaheen, D-N.H., a leader on the unemployment issue, will "help nearly 2 million Americans who are still unable to find work, protect small businesses struggling in this challenging economic climate and stimulate economic activity to help create jobs and grow our economy."
The extension would be the fourth since June of last year and could result in giving an out-of-work person in one of the harder-hit states up to 99 weeks of benefits, well above the previous record of 65 during the 1970s.
Supporters argued that this help was necessary when 15 million unemployed are competing for about 3 million jobs and the unemployment rate continues to inch up despite some signs of economic recovery.
"There is no place today in the United States that does not see a serious crisis in unemployment," said Democratic Sen. Jack Reed of Rhode Island, where the 13 percent unemployment rate exceeds the national rate of 9.8 percent.
The $2.4 billion cost of extending unemployment benefits is offset by extending through June 2011 the federal unemployment tax that employers pay for each employee.
All families struggling with job losses, devalued homes and continued economic uncertainty will benefit from this bill. The Bill is clearly good news for those people trying to sell their home as part of a divorce settlement and trying to make ends meet while they look for new employment to support themselves and their children.
Tuesday, December 15, 2009
Email and Texting Privacy: User Beware
In 24 hour 7 day a week online communication systems, participants using e mail and texting may forget that the information and photos they regularly send out may be seen by people they never thought would view the material.
A highly publicized case in point would be the recent events surrounding Tiger Woods. The Daily Beast reported Wood's purported mistress has text messages and voicemail from Woods. The source believes that some of them contain expressions of real affection from Woods—perhaps even professing love to her or mentioning that he was considering leaving his wife. Such disclosures would likely be a marriage-ender for Woods.
In less time than it takes to write this blog, the news and tabloid machinery acquired and published both personal and embarrassing voicemail and text messages claimed to be authored by Tiger. You may ask yourself why this case would be of any concern to you since you might not be a public figure known all over the world. Consider the case being weighed by the U.S.Supreme Court. At issue in the case accepted by the high court is ones privacy expectation for texting.
The U.S. Supreme Court agreed Monday to take its first look at workplace privacy in more than 20 years, granting review in the case of a California city whose police department read one of its officers’ text messages.
A federal appeals court ruled in June 2008 that a wireless company had violated the officer’s rights by revealing messages, some of them sexually explicit, that he had sent to co-workers. Police officials in San Bernardino County had also violated his rights by reading them.
The Supreme Court denied the company’s appeal Monday but agreed to take up the city’s appeal. A ruling is likely by June 2010.
The case has “potentially very broad application in the area of new technology,’’ said Kent Richland, a lawyer for the city.
What the court must decide, said Dieter Dammeier, a lawyer for the officer and several of his colleagues, is whether text messages are more like e-mails — which an employer can examine when they’re sent on company computers — or like phone calls, which are generally shielded from surveillance even on company equipment.
These days, Dammeier said, “a text message is pretty much the same as having a telephone conversation. … There shouldn’t be less of a privacy expectation.’’
But Richland said the police officers had no reason to assume their text messages would be private, because the city had a policy that allowed it to read all communications on city-owned equipment.
The case concerns only government employees, but the court could issue a ruling that affects the private sector as well.
Even if the Supreme Court comes down on the side of the officer in this case, the message that your on line activities and texting can be viewed by others is clear. Using e mails and texting on work or personal equipment opens up a host of problems if the information you post is something you'd rather keep private. The obvious question you should ask yourself is: If I post this, would I want the whole world to see it?
A highly publicized case in point would be the recent events surrounding Tiger Woods. The Daily Beast reported Wood's purported mistress has text messages and voicemail from Woods. The source believes that some of them contain expressions of real affection from Woods—perhaps even professing love to her or mentioning that he was considering leaving his wife. Such disclosures would likely be a marriage-ender for Woods.
In less time than it takes to write this blog, the news and tabloid machinery acquired and published both personal and embarrassing voicemail and text messages claimed to be authored by Tiger. You may ask yourself why this case would be of any concern to you since you might not be a public figure known all over the world. Consider the case being weighed by the U.S.Supreme Court. At issue in the case accepted by the high court is ones privacy expectation for texting.
The U.S. Supreme Court agreed Monday to take its first look at workplace privacy in more than 20 years, granting review in the case of a California city whose police department read one of its officers’ text messages.
A federal appeals court ruled in June 2008 that a wireless company had violated the officer’s rights by revealing messages, some of them sexually explicit, that he had sent to co-workers. Police officials in San Bernardino County had also violated his rights by reading them.
The Supreme Court denied the company’s appeal Monday but agreed to take up the city’s appeal. A ruling is likely by June 2010.
The case has “potentially very broad application in the area of new technology,’’ said Kent Richland, a lawyer for the city.
What the court must decide, said Dieter Dammeier, a lawyer for the officer and several of his colleagues, is whether text messages are more like e-mails — which an employer can examine when they’re sent on company computers — or like phone calls, which are generally shielded from surveillance even on company equipment.
These days, Dammeier said, “a text message is pretty much the same as having a telephone conversation. … There shouldn’t be less of a privacy expectation.’’
But Richland said the police officers had no reason to assume their text messages would be private, because the city had a policy that allowed it to read all communications on city-owned equipment.
The case concerns only government employees, but the court could issue a ruling that affects the private sector as well.
Even if the Supreme Court comes down on the side of the officer in this case, the message that your on line activities and texting can be viewed by others is clear. Using e mails and texting on work or personal equipment opens up a host of problems if the information you post is something you'd rather keep private. The obvious question you should ask yourself is: If I post this, would I want the whole world to see it?
Tuesday, October 20, 2009
California Child Custody Laws
California Child Custody Laws
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn’t the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.
According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.
The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states, 3040. (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.
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