LegalMatch: Family Law

Paternity Leave: The New Frontier of Modern Parenting?

2010-07-01T13:57:52-07:00

Most people have heard of the term Maternity Leave, and have a vague understanding of what it means generally. But have you ever heard of Paternity Leave?

Paternity leave is essentially the same thing as Maternity Leave, and allows a father to take time off to spend with his newborn child. With the recent celebration of Father’s Day, many are taking the time to examine the current status of Fatherhood in the U.S. Even President Obama addressed the issue, and as he was raised primarily by his mother and maternal grandparents, the issue is undoubtedly a personal one for him.

In certain European countries the state funds leave for new parents, and some countries are adding the requirement that a certain portion of the leave be used by fathers, not just mothers. If they don’t comply the families will loose the paid-leave time altogether. In countries with such restrictions, the use of paternity leave has gone up, while certain studies note decreases in divorce rates and increases in joint custody for divorced couples.

In Sweden, paternity leave has been in place since the 1970s. There are still stories about how companies will subtly discourage their male employees from using the leave, but the stigma on daddy time is decreasing. However, this model stands in stark contrast to the U.S. model in which there is no federally mandated paid leave for new parents, mother or father.

In the U.S., the Family and Medical Leave Act of 1993 (FMLA) sets out guidelines for unpaid leave for new parents (its also used for situations in which an employee falls ill, or has to take care of a sick, immediate family member). Any company with over 50 employees is subject to the FMLA. However, there are no requirements on who uses that leave and as such, it is more than likely to be used by the mother, if at all. Since it is unpaid leave, not every family can afford to take advantage of the policy.

Many states supplement the FMLA with their own state specific laws. California has a paid family leave mandate, while other states have expanded upon the number of companies covered under their state specific regulations, to include smaller companies or government agencies.

For the sake of future generations, the FMLA should definitely be revisited. But despite recent positive statistics regarding the implementation of state mandated paternity leave in foreign countries, it remains to be seen if those policies have long lasting positive social implications. There is also the question of how such an expensive policy could be implemented in tax-adverse America, where more groups are seeking benefits and protections every day, and no one wants to pay for it.

By: Kris Calson

How To Get A Restraining Order

2010-06-22T13:45:39-07:00

Maybe it the rising temperatures around the country or the fact that our economy is still teetering slowly back and forth like a drunken unicyclist, but the latest statistics from LegalMatch show a jump in the number of litigants seeking attorneys who specialize in harassment cases. By the way, apologies to those who clicked that last link hoping to see a drunken unicyclist; hope this one makes up for any unintentional confusion.

Anyway, with the rise in the number of people seeking legal counsel to resolve their harassment issues, it seems fitting to write a blog explaining the first line of offense utilized when one is confronted with such disputes: the restraining order.

They are one of the most commonly granted court orders issued in our judicial system, and with good reason. Restraining orders can put an end to threats from angry neighbors, harassing phone calls, loiterers outside your coffee shop, creepy and obsessive ex-boyfriends seeking to win your heart back, and almost everything else in between. In all seriousness, a well-worded restraining order can do wonders in making people feel safer and sleep better.

Restraining orders prevent unwanted contact to you, your home or business by people who have been continuously harassing you by imposing penalties on those who violate the restraining order. These penalties can vary from fines up to imprisonment.

In most states, getting a restraining order requires that you provide the court with the name of the person who you’re trying to get a restraining order against, the type of harassment that person has been doing against you, and some sort of proof or justification. That last requirement can vary a lot from state to state, but typically you’ll need to be able to prove the ongoing harassment in order to get a permanent restraining order (more on that later).

What is considered harassment is very broad, as well. The harassing conduct itself doesn’t necessarily have to be continuous in order to get a restraining order. In most states, if the harasser’s acts place you in fear for your life, then just one act or even a well-established justification is all that is necessary for the court to issue a restraining order against your harasser.

For example, if you’re a key witness against a defendant in a murder trial, the court would likely be willing to grant your request for a restraining order against the defendant simply on the basis that you feel the defendant may harm you due to your testimony against them. What is considered harassment can encompass many different sorts of behavior depending on your local laws. Generally though, the laws defining this term are very expansive simply because the government wants to deter people from being able to scare or unduly annoy innocent private citizens.

There are two types of restraining orders: temporary and permanent. Temporary restraining orders generally only last for the duration of any case you’re litigating against you’re harasser, but usually can be extended for good cause (hence “temporary”). But the good thing about these is that you can get them issued by the court without the other party being present at the hearing. In lawyer terms, it’s called getting the order ex parte.

Permanent restraining orders on the other hand require the other party to be present at the trial because these restraining orders have larger consequences against the accused. Unless the accused doesn’t show up of course, then you can get one through a default judgment (which is sort of like forfeiting a game if you don’t show up). And the though the name would make you think these restraining orders last forever, generally that’s not these case. Permanent restraining orders normally are issued to last between 3-10 years, and only on rare occasions will a truly permanent restraining order ever be issued. One last note, most courts usually give temporary restraining orders automatically when a litigant applies for a permanent restraining order.

And the best part about restraining orders is generally, the paperwork required to get one isn’t very complicated in the legal sense, so even non-lawyers can petition the court with ease. Most courts nowadays have a self-representation assistance department that can help guide you through the process. So remember folks, you don’t have to live in fear.

By: Andrew Dat

Legal Separation and Divorce: What is the Difference Anyways?

2010-06-08T14:20:00-07:00

For those of you in need of some political gossip...Al and Tipper Gore announced that they are separating after 40 years of marriage. As with most announcements that have such a personal nature, it left everyone with lots of unanswered questions. I though it would be helpful to first dissect what this announcement really means.

The Gores did not make an announcement of divorce, but rather a separation. These are legal terms of art that mean very different things. Plus, one does not become the other after a certain period of time.

Couples that opt for legal separation are still legally married, but begin to live separately and usually deal with property divisions like divorcing spouses. A legal separation is a court order that outlines the rights and responsibilities of each party regarding issues such as: child custody, child support, visitation schedules, health insurance benefits, life insurance benefits, and spousal support. In some instances, property issues aren't even addressed in a separation, and the court order simply serves notice that the spouses are severing their economic community from that point on.

What is similar about legal separation and divorce is the court process. Both start with filing a petition, summons, and other documents with the court (and of course, paying the fee). What is important to note when parties are filing these documents is that the issues agreed on for the separation may set a precedent for what is decided in the divorce.

A recent study conducted by LegalMatch revealed a high interest in divorce and legal separation and because these two options have different and confusing legal ramifications, I am glad that people are reaching out to attorneys to help sort through the realities of their choices during such an emotional time. To add to the confusion, there are four types of separation to choose from: trial separation, legal separation, permanent separation, and living apart.

Although I have not personally experienced the stress of a legal separation or a divorce, I think that a trial separation is a good step to allow couples to deal with the legal and social stress of a divorce and decide if the permanency of divorce is best for them.

By: Violet Petran

Tiger Woods Should Go To Jail in New Hampshire

2010-01-08T15:30:06-08:00

So from the title of my blog, you are probably thinking I will be writing all about the “transgressions” of Tiger Woods. Although I love to keep up with pop culture and celebrity gossip, even I am sick of all the exposure his personal life has gotten in recent times! The media just loves to cover famous cheaters!

I will say that Tiger is lucky that he wasn't living in New Hampshire. New Hampshire still makes it a crime to commit adultery and although the wrongdoer won't face jail time, it is classified as a misdemeanor and carries a $1,200 fine. If you think that seems steep, when the law was first enacted, the adulterer was forced to stand on the gallows for an hour with a noose around his or her neck, received up to 39 lashes, and could spend up to a year in jail or a fine of 100 pounds!

Although the New Hampshire law, and other states that still criminalize adultery (including South Carolina, Alabama, and Georgia) are rarely if ever enforced, some lawmakers think it is important to keep laws like this on the books in order to send a message of the inappropriateness of adultery. By repealing the law, there is the notion that society has somehow taken a different stance on the issue or diluting the importance of marriage.

Those opposed to the adultery law say that laws should not be regulating sex, love, and marriage laws. Although laws have always regulated such things, the recent passage of gay marriage in New Hampshire (the sixth state to do so) is cited as a reason that love and marriage can take on many forms and we should have laws that allow it rather than limit it.

A recent LegalMatch study revealed an interest in adultery-related divorces. Those states that require a showing of "fault" for a divorce all too frequently list "adultery" as a reason. Additionally, the presence of adultery in a marriage is also a factor many state courts consider when determining alimony / spousal support, meaning the cheater will pay for his past mistakes in a big way!

I am in total unison with the lawmakers and think adultery is and always will be a bad thing. I also believe that it is an intensely private and personal matter that should be dealt with in the home, and not a matter of an individual lawsuit. When the issue does arise, it is best handled in divorce court when determining settlements, alimony, and other related issues.

Significant Number of Grandparents Seeking Visitation Rights for Grandchildren

2009-11-24T15:46:51-08:00

It should be obvious that most child custody and visitation disputes are between the parents of the child or children at the heart of the dispute.

This makes perfect sense, as biological or adoptive parents have the strongest interest in being able to visit their children, and it is usually assumed that it is generally (though certainly not always) in the best interests of the children to have both of their parents involved in their lives, regardless of the marital problems that the parents are going through.

However, according to recent LegalMatch case data, there are also a significant number of grandparents fighting for the right to visit their grandchildren. The law on this subject is fairly complex, and varies from state to state. The first, and most important, consideration is consistent, however: before granting child visitation rights to anybody, including grandparents, a court must determine that it would serve the best interests of the child to do so.

In making this determination, courts will consider a number of factors, such as the nature of the relationship between the grandparent and grandchild, whether the grandparent has assumed certain roles normally taken on by parents, whether both parents are currently involved in the child’s life, and several other factors.

The fact that a relatively large number of grandparents are seeking visitation rights raises some interesting questions about society’s concept of family, especially when we let the law define a term which means so many different things to different people.

Do grandparents have some inherent right to visit their children? I would say probably not, or at least not as strong a right as parents have.

On the other hand, grandparents often serve very important roles in the family, which go way beyond spoiling their grandkids at Christmas. After all, older people obviously tend to have more life experience than younger people – this is valuable to children and their parents. Grandparents, who, by definition, have raised children before, can often impart some wisdom onto their children, who can in turn use that to better raise the grandchildren.

Of course, this is not always the case, and every family is different. It seems that if the parents of a child decide, for whatever reason, that a grandparent is not a positive influence in the child’s life, their decision should be granted substantial weight by the courts. However, as mentioned earlier, the ultimate consideration in such decisions should be the best interests of the child.

In the end, the decision to grant someone a right to visit the child against the wishes of the child’s parents is not one to be made lightly. It is well settled that parents have a fundamental right to control how their children are raised. However, this right is not absolute – hence laws against child abuse and neglect. The needs of a child can sometimes outweigh the rights of the parents. This holds true when it comes to visitation – if a grandparent has become an essential figure in a child’s life, they should be allowed to visit the child, the preferences of the parents notwithstanding. Whatever reasons the parents have for opposing visitation should be worked out between the parents and grandparents. After all, every responsible parent sometimes does things they don’t like for the sake of their children (thanks for taking me to see the Power Rangers movie when I was 9, Mom).