The More The Merrier Revisited: Tri-Custody in New York

Posted March 31, 2017 in Family Law by Michael Lonich.

Blog

March 31, 2017
The More The Merrier Revisited: Tri-Custody in New York
Read more »

 

As we have discussed on this blog before, California allows a child to have more than two legal parents.  With the rise of assisted reproduction and wider recognition of non-traditional family units, it is growing apparent that children may receive substantial physical and emotional care from more than two people.

In California, the Martinez v. Vaziri case concluded that a child’s biological mother, biological father, and third person—the man who cared for the child and was the child’s only father figure—could all claim legal parentage.  The case’s holding was grounded in a California statute (Family Code Section 7611) that allows children to have more than two legal parents if recognizing only two parents would be detrimental to the child.

Now, New York has stepped up to the plate in a case involving a polyamorous family.  After a lengthy custody battle, a judge awarded custody of a child to three different people.  When the child was born, the three people had been involved in a longstanding intimate relationship.  Two of the people were married, and the remaining person lived next door.  The married woman (Wife) could not conceive, so the family decided that the married man (Husband/Father) would impregnate the third woman (Mother), and the family would raise the child together.  Ultimately, Mother gave birth to a boy, but then, Wife and Husband/Father got divorced while Wife and Mother continued their relationship.  Even though Wife continued to see her son during his custodial time with his biological mother, Wife wished to formalize her own legal link to the boy.

Concluding that the child viewed both women as his mothers and would be devastated if any of his three parents were removed from his life, a New York judge granted parental rights to Wife, Husband/Father, and Mother.  Unlike in California, this decision is not grounded in a statutory right to have more than two parents, but the case evidences an emergent shift in the judiciary’s interpretation of what constitutes a family unit.

If you have any questions about establishing your child’s legal parentage, please contact the experienced family law attorneys at Lonich & Patton—we can help you understand and secure your and your child’s legal rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

SOURCE:

http://www.cnn.com/2017/03/14/health/three-parent-custody-agreement-trnd/

This article has no comment.

Share |

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

Posted March 21, 2017 in Estate Planning, Family Law by Michael Lonich.

We have outlined the spousal fiduciary duty on this blog before; now, we’re delving a bit deeper to discuss the impact of the spousal fiduciary duty on estate planning.  Traditionally, California courts rely on a common law burden-shifting framework when confronted with the possibility that a spouse has unduly influenced his/her spouse’s estate planning decisions.  However, a 2014 case from a California Court of Appeal—Lintz v. Lintz— took a different approach, and instead, relied on the statutory spousal fiduciary duty articulated in California Family Code section 721 to resolve an estate planning/undue influence claim.

The common law framework provides that the person alleging undue influence bears the burden of proof.  However, the challenger can shift the burden to the proponent of a testamentary instrument by establishing, by a preponderance of the evidence, three elements: 1) a confidential relationship, 2) active procurement of the instrument, and 3) an undue benefit to the alleged influencer.

Departing from the common law, the Lintz court—faced with an allegedly abusive wife who intimidated her husband into amending his trust to her tremendous benefit and to the extreme detriment of her stepchildren—looked to Family Code section 721 when it decided in favor of the husband’s estate.  Section 721 creates a broad fiduciary duty between spouses that demands a duty of “the highest good faith and fair dealing.”  Further, neither spouse may take unfair advantage of the other.  As a result, if any inter-spousal transaction advantages only one spouse, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence.  The presumption is rebuttable—the advantaged spouse can demonstrate that the disadvantaged spouse’s action was freely and voluntarily made, with full knowledge of the facts, and with a complete understanding of the transaction.

California Family Code section 850 describes three categories of inter-spousal transactions: 1) community property to separate property, 2) separate property to community property, and 3) separate property of one spouse to separate property of other spouse.  Notably, the section does not consider transferring community or separate property to trusts.

The court concluded that section 721 applies because section 850 does include property transferred to revocable trusts—in Lintz, Wife’s undue influence caused Husband, via his trust, to transmute a large part of his separate property to community property.  Accordingly, the court held that Family Code section 721 creates a presumption of undue influence when one spouse names the other as a beneficiary in a revocable trust.

Criticism of the decision abounds—all estate plans that name a spouse as a beneficiary, by their very nature, benefit one spouse.  In turn, use of the Family Code undue influence presumption threatens to disturb all testamentary instruments, and litigation may flood the family courts as spouses seek to rebut the seemingly automatic presumption that Lintz creates.  On the other hand, some commenters believe Lintz does not indicate a new paradigm, but rather, showcases a court’s eagerness to remedy the serious injury inflicted by a spouse’s egregious influence.

At the very least, the Lintz case does demonstrate that estate planning and family law are deeply intertwined.  Consulting with an attorney to learn how a marriage or divorce can impact your testamentary wishes is always wise.  If you have any questions about your family law and/or estate planning needs, please contact the experienced attorneys at Lonich & Patton—we offer free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

SOURCES:

California Family Code section 721

California Family Code section 850

Lintz v. Lintz (2014) 222 Cal.App.4th 1346.

This article has no comment.

Share |
Phone:
408.553.0801
Address:
1871 The Alameda, Suite 475
San Jose, CA 95126
Email:
contact@lonichandpatton.com