Grandparent‘s Rights – Visitation, Custody and Adoption

Most people recognize that a strong relationship with grandparents greatly enriches a child’s life. What happens to that relationship, however, when a child’s parents separate, or when one parent dies?

Many grandparents become concerned when situations such as these occur because they know it will have an effect on how often they see their grandchildren. After such an event, a grandparent may go from seeing grandchildren every day to seeing them only on holidays. These types of drastic changes take an emotional toll on the entire family.

Ohio courts are beginning to step in to prevent such devastation to the family. Some grandparents are able to get a court order allowing them to continue spending time with their grandchildren.

Visitation

A grandparent concerned about losing valuable bonding time with a grandchild may ask a court for visitation. If the court finds that visitation is in the best interest of the child, it will issue a court order. When a visitation order is in place, the grandparent is allowed a certain amount of time with the grandchild. The length of each visit, the number of visits each year, and where the visits may occur are explained in the court order.

Grandparents may seek court-ordered visitation if the child’s parents are unmarried, if the child’s parents are divorced, or if one of the child’s parents has died.

In addition, prior to a divorce becoming final, a grandparent can intervene in the parent’s divorce case and ask the court to award them their own visitation schedule with their grandchildren.

Grandparent visitation is not automatic. It will be granted only if the court, after evaluating several factors including the parent’s wishes, determines that visitation is in the best interest of the child.

Also, it is important to note that a stepparent adoption will terminate grandparent visitation rights, unless the natural parent is deceased. So, for example, if your former daughter-in-law remarries and her new husband adopts your grandchild, your visitation rights will be terminated.

An important point to highlight about grandparent visitation is that there is no right to it if the family is intact. So, if your grandchild’s parents are married and refuse to allow you to visit, you cannot seek a court order.

Custody

If visitation is not sufficient, grandparents may wish to seek custody of a grandchild. If custody is granted, the grandchild lives with the grandparent and the grandparent is responsible for the grandchild’s primary care.

It is difficult in most cases for a grandparent to get custody. A custody action must be filed in juvenile court. Custody will be granted only if the court finds that both parents are unfit, and that it is in the best interest of the child for custody to be granted to the grandparents. Courts find parents unfit usually only upon a clear sign of abuse or neglect.

Adoption

In Ohio, grandparents may also seek to adopt a grandchild. If the adoption is granted, you become your grandchild’s parents. All parental rights of the child’s biological parents are terminated.

Grandparents seeking to adopt must file a petition for adoption. Proper notice must be given to the child’s parents, a home-study will be conducted, and the adoption must be in the child’s best interest.

Once the adoption is completed, the child’s birth certificate will be changed to show that the grandparent(s) are the child’s parents. This means that (1) the child will inherit from you; (2) you are now ultimately responsible for caring for the child; and (3) the child can receive any benefits that a naturally born child would have through you, such as social security and health care benefits.

Ohio law as it relates to grandparents’ rights is still evolving. Therefore, it is important that you seek the advice of an attorney prior to starting any type of court action.

Who gets my property if I die without a will?

It is a common misconception that the State of Ohio gets your property if you die without a will. In most cases, this is not true. The State of Ohio will receive your property only if you leave no surviving relatives.

If you die without a will, your property will be distributed according to Ohio’s intestacy laws.

Ohio’s intestacy laws identify who receives your estate, beginning with a surviving spouse, if there is one.

The amount your spouse will get depends on whether or not you leave children:

1. If you leave no children, your surviving spouse receives your entire estate;
2. If you leave one or more children, all of whom are also the children of your surviving spouse, your entire estate will pass to your spouse;
3. If your surviving spouse is the natural or adopted parent of at least one, but not all of your children, your spouse receives the first $60,000, plus one-third of the remaining estate;
4. If you leave one child who is not the natural or adopted child of your surviving spouse, your surviving spouse receives the first $20,000 plus half of the remaining estate;
5. If you leave more than one child and your spouse is not the natural or adopted parent of any of them, your surviving spouse will receive the first $20,000, plus one-third of the remaining estate.

If you are unmarried, your estate passes to your children in equal shares.

If you have no children, your estate passes in the following order to:

1. Parents
2. Brothers/Sisters
3. Nieces/Nephews
4. Grandparents
5. Other next of kin such as aunts, uncles or cousins
6. Stepchildren
7. State of Ohio

Before your relatives receive any of your property, your estate must pass through probate. Probate is the court procedure that must be followed in order to distribute your probate property. Probate property is any property that does not pass directly to a named beneficiary upon death. “Non-probate” property includes property held joint with rights of survivorship or transfer on death property.

Non-probate property passes outside of the probate process because it is governed by the laws of contract. For example, if you purchase a life insurance policy you designate a beneficiary. When you purchase the policy, you are entering into a contract with the insurance company. As part of that contract, the life insurance company must pay the policy to your beneficiary following your death.

Probate property is not governed by contract law, and so must pass either by the terms of your will (if you leave one) or by Ohio’s intestacy laws (if you do not leave a will). Probate property includes real property (land) and personal property (bank accounts, cars, jewelry, etc.).

During the probate process, the court will appoint an administrator to gather estate assets, pay debts, and distribute the estate. The court will appoint the surviving spouse as administrator. If the surviving spouse declines or there is no surviving spouse, a relative will be appointed.

Although it may be reassuring to know that the State of Ohio probably will not get your estate if you do not make a Will, it makes much better sense to create a Will. Ohio’s intestacy laws only provide for relatives. Loved ones who are not related to you by blood, marriage, or adoption (such as friends and significant others to whom you are not married) will not receive any of your property.

Even if you want your property to pass to relatives, you should create a Will to designate the property that you want each relative to receive. You may want certain relatives to receive land or money, and others to get personal property that has sentimental value.

It is important to remember that your estate will consist of property that you worked over your entire lifetime to accumulate. Do not leave it up to the State of Ohio to determine who receives your hard-earned property. n

Life Insurance Trusts Can Make Sense for Those in Second Marriages

Estate planning can be difficult for remarried individuals. Many people in second marriages have children from a first marriage, and find it hard to meet the needs of both families in an estate plan. There are many estate planning tools available, however, that will provide for both a spouse and children.

A life insurance trust is commonly used in such a situation. In a life insurance trust, the grantor (the person who creates the trust) contributes money to the trust to purchase life insurance. The grantor appoints a trustee to purchase the life insurance, which is used to fund the trust. The trust owns the life insurance policies. Your spouse or children (or both) can be named beneficiaries of the trust, which can be drafted to address your unique situation.

As with any trust, a life insurance trust must be carefully drafted to minimize or avoid gift taxes.

Will-Making Software Cannot Replace Lawyers

Sales of computer software designed to create wills are strong. Because the software is widely available, many people believe that attorneys are no longer necessary to create an estate plan.

For many reasons, computer programs are no replacement for sound legal advice.

Computer software cannot know your unique situation.

No two people have exactly the same needs when it comes to drafting a will. The software you choose cannot be equipped for every situation, and many important issues may be overlooked that could affect your estate. For example, if you have minor children, you may need to create a trust as part of your will (a “testamentary trust”) that will preserve your assets until your children are old enough and responsible enough to handle them. This is a complex document that should not be completed on your own, but requires an attorney’s skill.

Will software may not follow Ohio law.

To be valid, a will must meet certain formal requirements. These requirements vary by state. Ohio is very specific about the requirements necessary to make a valid will. Most computer programs do not follow Ohio law. For example, the software you choose may not indicate that you need two witnesses to your will, or that Ohio law gives a surviving spouse certain rights over property that cannot be defeated by a will. These types of things should be explained by a lawyer.

Computer software may not provide all of documents necessary for a basic estate plan.

Most people first visit my office asking only for a will. They do not realize that along with the will, they usually need a Living Will, Health Care Power of Attorney, and Power of Attorney for Financial Matters. If you choose to draft your will yourself, your software either will not include these other documents, or will charge you extra for them. If your software includes them, they too will probably be invalid under Ohio law.

Will-making software can in the long-run cost you more than hiring a lawyer.

Will-making software packages can cost anywhere between $30.00 and $300.00. A few things can happen after you have paid for your software:

1. You realize that the finished will is inadequate for your needs, so you end up hiring a lawyer anyway, thus paying for the lawyer’s services and the software;
2. A few years after creating the will an important life event occurs that requires an update to your will, so you are forced to purchase the newest version of the software to complete the update; or
3. You never realize that your “do-it-yourself” will did not meet your needs or was invalid under Ohio law, and after your death there are unnecessary expenses to your estate and heartache to your loved ones that could have been avoided.

In short, hire a lawyer for your legal needs. As stated on the Ohio State Bar Association’s website (www.ohiobar.org), “No sensible person would engage “just anyone” to fill teeth, take out an appendix, or adjust a sensitive and complicated instrument. The person who wants these services performed with a minimum of risk to self and property will engage a trained professional person. The drafting of a will requires professional judgment. A lawyer can help you avoid pitfalls and choose the course best suited for your situation.” n

Save the Dream – Get Help if Facing Foreclosure

The foreclosure crisis is affecting many Ohio families. You probably know someone who lost their home to foreclosure, or you may be struggling to keep up on your mortgage payment.

If you are in danger of foreclosure, it is important to get help immediately.

It is never too late to get help. If you are behind on your mortgage payment – or even if you have already received a foreclosure notice – there may be options available.

If you are having trouble paying your mortgage payment, immediately contact your mortgage servicer. In most cases, the servicer will work with you. Your mortgage company would rather keep you in your home than suffer a financial loss in the event of foreclosure.

Speak to someone in your servicer’s Loss Mitigation Department. Ask if you can participate in a “work out” resolution or get a loan modification. A “work out” resolution involves resuming payments and arranging to pay the past-due amount over a short period of time. A loan modification might lower your interest rate or extend the final due date of your loan – making your monthly payments lower.

In addition to contacting your servicer, you should call the State of Ohio’s Save the Dream hotline at 888-404-4674 or visit www.savethedream.ohio.gov. You will be referred to a housing counselor who can explain your options. If you have already received a foreclosure notice, you will be referred to an attorney who can help with your case.