Straight or gay, responsible parenting is needed

Over the weekend there were articles in both the Guardian and Sunday
Times about the Court of Appeal case I highlighted last week regarding
the lesbian couple who are in dispute with their 'donor' over access
to a child created between them (No Legislating for Feelings 7th
February ).  Charlie Condou in the Family section of The Guardian uses
his column to pour scorn on the apparent lack of thought that went
into the agreement that was made between the women concerned and their
donor, who according to the Sunday Times, was the gay ex-husband of
one of the women.   Condou himself has two children with his gay
partner Cameron and Catherine, a single, straight friend whom the men
had about two years of discussion with before going ahead with trying
to conceive.  As Condou says, "The mothers did not choose an anonymous
sperm donor – presumably because they wanted their child to know who
his father was – they chose a friend.  A friend who was present at his
son's birth and who has been active in his life.  He is a father, and
they, as mothers, don't have a right to put a limit on how he
expresses that, whatever they think they agreed over a bottle of wine.
 The child has a father who loves him and wants to be in his life, and
the child has every right to that relationship."  In fact it's all to
do with relationships and really nothing to do with sexuality.

Giles Hattersley in the Sunday Times talks to Alison Burt a solicitor
with a family law firm that is seeing an increasing number of
difficult and upsetting situations occurring with complicated and
un-thought out parenting arrangements.  Sam Dick, head of policy at
Stonewall advocates that gay and lesbian parents when seeking someone
of the opposite sex to help them have a child, have a long 'dating'
period where they get to know each other very well before deciding to
go ahead.  Condou is adamant that everyone must understand to the
letter what the term 'involvement' means.   All interviewees agree
that  "Until you have a child you have no idea of the intensity of
emotions that rise" and that everyone has to be as prepared as they
possibly can be to reconsider arrangements and compromise in the
interests of the child.  This being something the women in the current
case seem very reluctant to do.

In the meantime the lovely Elizabeth Marquardt asks Do Mothers Matter?
in this weekend's edition of The Atlantic.  I hesitate to mention her
as each time I criticise this woman armies of her supporters come out
of the woodwork to post their strongly held views about what I have to
say.  But I can't let this pass.

In the article Marquardt starts by proposing that not having a mother
was, until recently, widely regarded to be a tragedy.  She then goes
on to list ways in which children have historically been separated
from their mother and how painful this is for mother and child.  And
of course no-one would disagree that any forced separation between
parent and child where there has been a bond of love and attachment is
something to be avoided at all possible cost.  The argument then moves
from one where mother and child are separated to that of egg donation
and surrogacy where the parents are gay men and two women, neither of
them intending to be mothers, helped them to have a child.  This is a
new form of family not in the conventional heterosexual mould – yet
another way in which what we mean by family is evolving in the modern
world – but lesbian couples have been having children together for a
long time now and research shows that their children do very well.  No
father present there, unless they have chosen to co-parent.

Is there something special about a woman that makes her more likely to
be missed than a man in the family?  I don't think so.  Men cannot
breast feed but they can be equally nurturing and supportive of their
children, providing warmth and comfort as well as boundaries and
boisterous play.  I'm not dismissing the positive roles that both a
father and a mother can play in children's lives but same sex couples
are likely to bring a range of qualities to their parenting that
fulfil the needs their children have.  Heterosexual parents who are
left on their own with children find that they develop the qualities
that the other parent used to bring.  Not having a man or a woman in
the house does not necessarily mean that children are missing
anything.

Marquardt's underlying position is always that anything other than a
heterosexual couple family with children conceived with their own
gametes, is inevitably damaging for children.  Donors are viewed as
'parents' who have given up their children to be raised by others and
non-genetically connected parents are raising 'other people's
children'.  In her methodologically flawed study My Daddy's Name is
Donor and quoted in the Atlantic article, she shockingly claims that
"Compared to their peers raised by biological parents, sperm-donor
conceived persons are more likely to struggle with delinquency,
addiction and depression."  Whilst she has every right to her views on
the way in which families are changing, Marquardt has no right to make
such statements about donor conceived people in general.

To return to the questions raised at the beginning of this post, it is
vital that men and women, straight and gay, understand what they are
doing when they bring children into the world.  Adult relationships
may be evolving but children's needs for love, nurture and security do
not change.  I believe these needs can be met by same sex as well as
heterosexual couples, those who are not genetically connected to a
child as well as those who are.  Mums and dads (in same or different
sex couples) are those people who are there for their children day in
and day out.  Donors are important too but in a different way.  They
are not parents who have abandoned their children but contributors of
a vital ingredient of life.  They deserve thanks, recognition for
their gift and (hopefully) their willingness to make a connection with
a young person who needs to know more about them.  Mature responsible
parents; mature, responsible donors.  Happy children.

For more information on these matters, please call our office at 305 548 5020.

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Where there’s a will there’s a way to con

Death, like politics and religion, is not widely mentioned in polite society.

It's on a par with blocked drains and smelly toilets – a known fact of
life, but a subject to avoid at all costs.

Research shows that a staggering 60 per cent of people die without
making a will, leaving it open season for the government to cash in on
the value of their worldly possessions.

Many people avoid making a will because they think it's complicated
and expensive.

But as others find out to their cost, unscrupulous predatory firms
specialising in will writing can arrange to plunder their estate even
before they pass away.

It's a little known fact that anyone can set up in business to provide
will writing, probate, and estate administration services.

Ever since they passed out of the hands of solicitors in the late
1980s, successive governments have made a virtue of applying 'light
touch' legal services regulation, leaving the door open to a
significant number of crooks and con artists poised to rip the public
off.

No sooner than the ink was dry ending the monopoly of solicitors in
this area of law, the rogue element started to move in.

According to the Trading Standards Institute's Bryan Lewin, first out
the starting blocks was serial fraudster Simon Harris, who on his
release from prison saw the gap in the market and founded the Quill
Group will writing franchise.

All the companies in the Quill Group were finally put out of business
in the early 1990's when the Department of Trade and Industry
compulsory wound them up in the High Court.

But where Mr Harris moved in, others were sure to follow.

Enter Gerald Barton – a disqualified director – and his string of
franchises going under the names of Willmakers Ltd and National Legal
Services.

By the time Harris and Barton had been unmasked as will and probate
rogues, thousands of clients were left out of pocket, and without
access to their wills.

Undeterred another plausible will writing outfit, Stephen Share's
Solicitors Probate Services Ltd, ended up in the High Court in 2008
after a rigorous investigation by the Solicitors Regulatory Authority.
They discovered that the ex-solicitor – who was finally banned from
practising law for life in 2009 – had named himself or his company as
executor in more than 4,500 wills.

Another dodgy trio behind will writing services formed Willmakers of
Distinction UK. They were subsequently found to have stolen thousands
of pounds from dead people.

Two of the men involved, David Nash and Nicolas Butcher, were
sentenced in 2010 at Lincoln Crown Court to three and a half years
behind bars, while the third, Raymond Prince, was handed down a one
year suspended sentence.

While recourse to a friendly will writer does by no means guarantee
you'll automatically be fleeced of all your worldly wealth, the
situation is serious enough for the Law Society to campaign for the
regulation of will writers.

In July 2011 the Legal Services Board (LSB), having given due
consideration to the advice they received from their consumer panel,
started a statutory investigation into how best to protect consumers
from will writing and probate services spivs.

After sifting through the evidence, the LSB is recommending to the
government that regulation is re-imposed in the form of licensed
activity by legal professionals under the 2007 Legal Services Act.

But that may be easier said than done.

The Institute of Professional Will Writers (IPW), a self-regulating
trade body, claims now that the genie has been let out of the bottle
it is very difficult to get an accurate picture of the scale of the
problem and size of the will writing sector.

Many writers operate as 'one man bands' from home, and firms have
hundreds of practitioners working for them on self-employed contracts.

The IPW has identified about 750 will-writing firms, and their
research has uncovered another 158 companies with 'Will' in the name
that had been dissolved in the last ten years.

The response to the LSB's concerns from the government has not been
encouraging, despite unearthing considerable evidence of poor quality
wills and dubious advertising practices.

Christopher Matthews, an associate solicitor with Churchers
solicitors, Fareham, is concerned that consumers deterred by false
claims about solicitor's charges, are being put at risk in the will
writing free-for-all .

He said: 'I strongly recommend your will is prepared by a solicitor or
legal professional who is a member of Solicitors for the Elderly so
you have the peace of mind knowing you are dealing with an expert who
can advise on all the circumstances affecting your estate.

'Never pay for your will upfront or let a sales person pressurise you
into additional cost, any genuine professional will be happy to
receive payment once the work is complete.

'If the cost of the will sounds too good to be true it probably is.'

For more information on these matters, please call our office at 305 548 5020.

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How to avoid a dispute when using a known sperm or egg donor

Submitted by prideangel.com

The courts are all talking about same sex parenting disputes. The
Court of Appeal has this week been hearing from a donor applying for
contact with his biological son against a lesbian couple who say they
feel "bitterness and betrayal" (the case has not yet been decided but
you can read the coverage in the Telegraph here). This follows the
decision just a few weeks ago by High Court judge Mr Justice Hedley
(in P&L (minors) 2011, available here in full) which dealt with a very
long and bitter dispute about the role of gay donor dads to two
children (aged 10 and 6) being raised by their lesbian mothers. The
courts are feeling their way with what they call new models of
alternative parenting, and trying to develop an approach for these
types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and
those who end up in dispute) we see some wonderfully successful
co-parenting arrangements. But where they go wrong, they go horribly
wrong. What is interesting, though, is that parents always seem to
fall into one camp or the other. I can honestly say that none of the
clients we have advised at the planning stage has ever come back for
legal representation later. Equally, not one of the clients we have
represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known
donation arrangement a successful one, and how to avoid ending up in
court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don't rush into trying to conceive. Get to know each other, have
honest conversations about the roles you will have and how much
involvement you all want. Be as clear as you can about your
expectations and be honest with each other and yourselves. If things
don't feel right, have the courage to walk away. There are always
other options. You could find another donor or co-parent, or choose
unknown donation (as mums) or surrogacy (as dads) if what you really
want is parental autonomy.

Understand what roles you will all have

Justice Hedley was keen to "stress the importance of agreeing the
future roles of the parties before the first child is born". And this
fits with our experience. Almost all the cases we have seen which have
ended up in dispute are ultimately about status. Is the biological dad
a father or a donor? Are you equal co-parents, or primary and
secondary parents, or parents with another adult role model? Make sure
you talk about how you see yourselves and each other, as well as the
day to day practicalities of managing your child's care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents
(and what goes on the birth certificate) depends on the facts,
including how you conceive and the birth mother's marital status.
There may be all sorts of different options, both for choosing who the
legal parents are and for giving some parental status to the other
co-parents if you want to, and problems can often arise where parents
have expectations (for example about what goes on the birth
certificate) which can't be met. Take legal advice, or check out the
free information on our website about this.

Put in place a written agreement

Donor agreements may not (strictly) be legally binding, but they are
incredibly useful. I have always advised parents that putting
something in writing helps with the planning, facilitates honest
conversations and sets a framework which everyone will feel morally
bound by, giving clarity and transparency and setting a really strong
foundation.

However, it now seems they may be more legally binding than we
previously thought. Although the issue is still untested (the parents
in P&L did not have a written agreement, which I suppose comes back to
my point that it is not the parents with properly prepared legal
agreements who end up in court) the case suggests that the court will
pay attention if there is one. Mr Justice Hedley said, in the
strongest indication yet, that "the court will be bound to give
careful consideration and weight to any such agreement".

There is no standard format for a donor or co-parenting agreement, but
having something which is accurate and personal to you (and prepared
with a solid understanding of how the law applies in your particular
circumstances) will be much more helpful than any standard pro forma.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Back to Basics: Family and Medical Leaves

BY STEVE PELTIN

In the first of a four-part series on the Family and Medical Leave Act
(FMLA) and related Washington law requirements, we addressed the
fundamentals of the FMLA, including coverage, permitted reasons for
leave, and significant definitions. In this installment, we will
cover the process for requesting leave, granting or denying leave,
employee rights during the leave, and reinstatement rights after the
leave. More detailed information is available on our website.

How does an employee request FMLA leave?

If leave is foreseeable, the employee must provide at least thirty
days notice before the leave is scheduled to begin, unless it is
impracticable. If impracticable, the employee must give notice as
soon as practicable.

The notice must make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. The employee ordinarily need not use any magic words or even
mention "FMLA." The employer is required to determine whether the
employee qualifies.

The employer may require an employee to comply with its usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, the employer may require
notice in a certain format or directed to a specific individual.

Before taking foreseeable leave for medical treatment, the employee
must make a reasonable effort to schedule the treatment so as not to
unduly disrupt the employer's operations.

When the need for leave is unforeseeable, the employee must notify the
employer as soon as practicable. If the employee is unable to give
notice in person, notice may be given by the employee's
"spokesperson."

How does the employee show medical need for leave?

Generally, if an employee requests FMLA leave for medical reasons, the
employer may require a certification from the health care provider of
the employee or relevant family member. Deadlines for notifying the
employee of certification requirements and for the employee response
are found here.

Certification should be "complete and sufficient." If an employee
omits information or provides "vague, ambiguous, or non-responsive"
answers, the employer should notify the employee in writing and
explain what additional information is necessary. If the employee
does not rectify the deficiencies, leave may be denied. The content
of the medical certification is described here.

If the employer has reason to doubt the certification, it may, at its
own expense, require a second opinion from an independent health care
provider. Disagreements between opinions may be resolved by a third
independent opinion.

An employer may request recertification when reasonable, but generally
no more often than every thirty days. An employer may request
certification if the employee seeks an extension of leave,
circumstances have changed significantly, or new information casts
doubt on the stated reason for leave or on the certification.

How does the employer respond to the request for leave?

The employer ordinarily must notify the employee within five business
days of whether he or she is eligible for FMLA leave. The employer
also should provide a notice to the employee that explains rights and
responsibilities under FMLA. The contents of the notice are found
here.

Assuming that the employee is eligible for leave, the employer next
must determine whether he or she qualifies for leave. Here the
employer examines whether the employee has a serious health condition
or fits under any of the other reasons for FMLA leave.

If the leave request is denied, the employer must notify the employee.
If the request is granted, the employer must designate leave as
FMLA-qualifying and notify the employee, specifying the information
found here.

The employer must designate leave as FMLA-qualifying based solely upon
information provided by the employee (or his or her spokesperson). If
there is insufficient information to make a designation, the employer
should inquire further.

If an employer fails to timely or properly designate leave as
FMLA-qualifying, it may do so retroactively with appropriate notice,
provided the failure does not harm or injure the employee. The
employer and employee also can agree to retroactively designate leave.

What happens during the leave?

An employee generally is entitled to receive health insurance benefits
while on leave. An employee who chooses to maintain health coverage
is still responsible for any employee-paid premiums. If the employee
fails to return to work after the leave, the employer may collect from
the employee the premiums paid on his or her behalf during the leave.

An employer may require an employee on FMLA leave to periodically
report his or her status and intent to return to work. If the
employee needs to take additional leave, he or she should give the
employer at least two days notice when practicable.

What happens after the leave?

The employer may require certification from a health care provider
stating that the employee is healthy enough to return to work or
perform specific tasks, so long as the requirement policy is uniformly
applied. An employee who remains unable to work after exhausting FMLA
leave has no right to restoration, and failure to provide a
fitness-for-duty certification disqualifies an employee from
reinstatement. If leave is intermittent, the employer may only
request a certification of fitness to return to duty once every thirty
days and only if there are "reasonable safety concerns" regarding the
employee's ability to perform job duties.

If the employee is medically able to work, he or she is entitled to
return to the position held before the leave or to one with similar
requirements, pay, and benefits. However, an employee has no greater
right to reinstatement than if he or she had been continuously
employed. If the employee would have been terminated if still at
work, the employer has no duty to reinstate. In fact, the employer
may terminate an employee during FMLA leave so long as the reason for
termination is unrelated. An employer also may deny reinstatement to
certain highly-compensated "key" employees to prevent "substantial and
grievous economic injury" to employer operations.

For more information on these matters, please call our office at 305 548 5020.

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Common Estate Planning Myths and Superstitions

We wanted to share some common myths and superstitions about estate
planning. Most Americans know the story of Groundhog Day: if a
groundhog comes out of its burrow this morning and sees its shadow, it
will retreat back into the burrow and six more weeks of winter weather
will follow. On the other hand, if the groundhog does not see its
shadow and remains aboveground, winter will soon end.

Most of us recognize that the ability of a groundhog to accurately
forecast the weather is just a myth. (The reality is that groundhogs
get it right only 39% of the time.) However, many people still believe
in the following estate planning myths and superstitions (or at least
use them as an excuse not to plan):

#1: You are more likely to die once you complete your estate planning.
This is simply absurd; generally, the only people who die shortly
after executing an estate plan are people who waited ALMOST too late
to plan in the first place.
#2: Estate planning is only for the wealthy. When you hear the word
"estate," do you think of a palatial mansion or fine jewels? The truth
is that if you own a home, a car, a bank account, life insurance,
etc., then you have an "estate".
#3: Estate planning only matters after death. A big part of the estate
planning we do at our firm is planning for possible future disability.
Wouldn't you like to leave directions for how you want to be treated
if you become incapacitated as well as for who gets your stuff when
you're gone? What about requests for who will care for you and/or your
children?

Please feel free to post comments on our Facebook or Twitter or make
an appointment if you have individual questions or concerns. Call our
office at 305 548 5020.

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Know your legal rights

A LEGAL firm is warning unmarried couples in the borough to make a will - or they may lose out.

More than half of unmarried couples wrongly believe their assets are protected by the law and between half and two-thirds of adults have not made a will.

Under the Inheritance (Provision for Family and Dependants) Act 1975 if you are a couple who has lived together for two years or more and one of you dies without making a will, then spouses, children, civil partners and cohabitees are entitled to make an application for 'reasonable financial provision' in court. Similarly if you are married without a will you will not automatically inherit your partner's estate - this only happens if a couple hold their assets in joint names.

Howard Burns, wills and probate partner at Lewis Hymanson Small, in Manchester, said: "Until the law changes and unmarried couples have the same rights as married ones they have a moral obligation to their family and their security to draw up a will.

"This will stop any unnecessary litigation and disputes. Be prepared for the future especially if you have children and own property."

For mote information on these matters, please call our office at 305 548 5020.

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About Background Contact Us Maps Videos Facebook, Privacy, and Family Litigation: A Few More Points to Know

By familyllb 

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party's profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs' Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his "friends" to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user's Facebook "privacy settings" were irrelevant to the court's ability to order the information and photos produced.   The mere fact that the plaintiff was willing to "share" his photos and other personal information with the public via a social networking website – even if only to a limited pool of "friends" – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as "ziplining".   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision inSchuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a "fishing expedition".  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party's username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

For more information on these matters, please call our office at 305 548 5020. 

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