Wednesday, January 21, 2015

Do Grandparents Have Visitation Rights? Understanding Grandparents’ Rights in Oregon.

Grandparents’ Rights in OregonGrandparents’ rights in Oregon are complex and difficult to understand. Do grandparents have visitation rights with regard to their grandchildren? Can grandparents take custody of a child? While there are no specific laws governing grandparents per se, there is case law addressing the rights of third parties who have established “emotional ties creating a child-parent relationship.”  These third parties can be related or non-related to the child. Grandparents, stepparents and other relatives or legal guardians can be vital to a child’s well being in situations where parents are either unable to properly care for a child or are absent altogether from a child’s life.  In these situations understanding your legal rights as grandparents, both in regards to visitation and custody, is essential.
Grandparents’ rights in Oregon are difficult because there is a presumption that the legal parent (mother or father) acts in the best interest of the child.  Thus, if a parent objects to grandparents having visitation or custody of a child, the grandparent must overcome the presumption the legal parent’s decision is in the best interest of the child. This is very difficult to do because the law puts great weight on parents’ rights to make decisions about their children. In determining whether to award custody or visitation to a grandparent, the court may consider several factors such as whether the grandparent has been the child’s primary caretaker; whether it would be detrimental to the child if the relief is denied; whether the legal parent has fostered and/or unreasonably denied the relationship between the child and the grandparent; and whether the legal parent is unwilling or unable to care adequately for the child.

In 2011 (See link HERE), the Oregon Court of Appeals denied the grandparents’ petition for visitation rights of their grandchild, despite grandparents being the child’s foster parents for over a year when the parents were unable to care for the child.  The court found grandparents had not proven the child would face a "serious present risk of harm" if visitation were denied. Grandparents also did not show the child's relationship with his parents would not be harmed if their request for visitation were granted.

The above result is not uncommon in Oregon but every case is very different due to the unique set of circumstances families face. If you are a grandparent or another third party with questions about visitation or custody of a child you should contact Gevurtz Menashe today. Our qualified attorneys specialize in many areas of family law, including third party custody and visitation rights, in Oregon, Washington, and Idaho.  Call 503-227-1515 for our Portland office or 360-823-0410 for our Vancouver office today!

Paige De Muniz, Shareholder

Friday, January 16, 2015

5 Things to Know before Setting up an Irrevocable Family Trust

Keep it in the family- your money, that is!  When it comes to protecting your assets for future generations, most often your children or grandchildren, an irrevocable family trust can be a powerful tool.  Setting up a family trust is a complex process, however, so the assistance of an experienced estate planning attorney is highly advisable. Before setting up a family trust, you should consider the following:

  1. The Key Players – Every trust, family trusts included, requires three key players: the Settlor, the Trustee and the Beneficiary (or Beneficiaries). The Settlor is the person who establishes the trust; typically the Settlor is the person who owns the property initially contributed to the trust. The Trustee is the person or entity who manages the trust according to the Settlor’s wishes. The Trustee is usually a family member, but sometimes a professional Trustee or institution administers the family trust. The Beneficiaries are those persons who stand to benefit from the trust, usually children, grandchildren and other relatives of the Settlor.

  2. The Assets – One of the primary reasons for forming an irrevocable family trust is to protect assets, either from creditors or from exposure to taxes. Assets that you own can be sold or gifted into the trust, effectively allowing the Trustee to manage and distribute the property according to the terms of the family trust agreement. If the family trust is structured and administered properly, assets in the trust can be protected from creditors and can avoid estate and income taxation.
  3. Know the Risks – Like most things in life, irrevocable family trusts are not foolproof.  In order to enjoy the asset protection and estate tax reduction benefits, careful compliance is required.  The assistance of a knowledgeable trust attorney and accountant is crucial.  Failure to properly establish and maintain a family trust can result in negative income and estate tax consequences and can expose your family’s assets to creditors.  You must also make sure that the Trustee is reliable. Once you contribute property to the family trust, you generally lose the right to control or benefit from that property.
  4. Know the Demands– While there are many benefits to establishing an irrevocable family trust, they are not for everyone.  Setting up a family trust can be complicated, and regular maintenance is required to ensure they function properly.
  5. Hire the Right Attorney – Gevurtz Menashe’s family trust attorneys can not only assist with the initial formation of irrevocable trusts, but also with the maintenance and termination of trusts. Contact us today for more information or to schedule a consultation.

    John Christianson, Of Counsel (Estate Planning)