On this page you will find various short articles which have been composed by Lynn Swank as a monthly feature to discuss topics of interest in this type of legal practice. Please read the current monthly article and then check often for new ones. When a new article appears, the current essay will be moved into the ‘Archives,’ where it can still be accessed conveniently. The information discussed in these articles should be used only as a starting point. The material is not an in depth treatment of the subject and is not intended to create an attorney-client relationship. Your comments, suggestions and contributions are welcome. Please use the ‘comments’ section on the first text page of this website, directly e-mail, or write. Every aspect of law is an ongoing process of education, analysis and review. We welcome the opportunity to network ideas.

Topic: Family Law

TIMING - WHY DO COURT PROCEDURES TAKE SO LONG? 

Civil cases in Georgia courts are filed within a certain procedural framework designated by law and Court rules. The purpose of the system is to create an environment of fairness to all parties, to allow settlement of controversies without a judge involved, but, as a last resort, to allow persons with real claims to have a trial and an appeal, if necessary. 

Delay on beginning action: 

When a claim is discussed with an attorney, why is it not filed in Court that same day? You have made the decision and are ready to go. Some reasons may be: 

1. The attorney must review, collate, and analyze the facts. Attorneys in Georgia can be held personally and professionally liable if they file a frivolous case (and harm results) no matter how convincing the client may have been.

2. Some times witnesses should be interviewed or have their statements confirmed. Often if the witness interview is held off until after the lawsuit has commenced, then other people will have spoken with or taken statements from your witness – sometimes impairing their recollection or voluntary participation on your behalf.

3. It may be necessary to collect information, exhibits, or certified copies to be submitted with the petition. Failure to include required affidavits or evidence can often terminate a case.

4. The attorney may need to issue pre-litigation demands or notices. Often, particularly in adoptions or actions to terminate parental rights, there may have to be publication of legal notices or issuance of written warning by personal service or certified/overnight delivery. The accuracy and completeness of this notice may be crucial to your case.

5. The attorney may be making strategic decisions regarding the appropriate court and placement of the case.

6. The law or rules should be researched. Frequently the application of legal principles to the facts of a specific case can be complex and have different sequences depending on the goals set by you and later choices made by the opposing party or parties.

7. The attorney may be waiting for payment of costs, retainer or written authorization to proceed. This may seem ‘greedy,’ foolish, or insensitive, but in fact many people commence cases without any anticipation that they will pay any thing after the retainer (or sometimes any thing at all). Unconsciously they are acting on the belief that ‘it is an emergency,’ ‘I need help today,’ ‘my spouse is violent,’ or ‘the person who is only going to be in my area for a short period,’ ‘my story is so ghastly and my need so great’ or, possibly the most common ‘the other side is going to pay it when we win.’ In reality most attorneys are not wealthy and cannot indefinitely handle cases without payment. Just as you would not continue going cheerfully to a daily job with no anticipation of a paycheck,, it may be very hard for an attorney to give full attention to a case on which he or she is basically footing the bill and did not choose to do so. The problem from the attorney’s perspective is not simple -- not getting paid is only a part, Georgia law and Rules of Court provide that an attorney cannot quit or leave a case (once started) without following a procedure and asking permission of the court. Occasionally (particularly if the case is close to trial), permission to withdraw from a case will be denied by the Judge even though the attorney has not and will not ever be paid by the client.

8. Finally, the attorney may be creating a ‘cooling off’ period. In divorce, custody, and contempt of court petitions especially, the Petitioner often asks for legal help while he or she is very angry or frightened. If the filing is too fast, then when the parties later take a quiet time to talk they may reconcile or alter their plans. Then the public legal case must be dismissed with a loss of the court filing costs and attorneys fees. Further, the filing of a divorce action is a public records entry which may affect your ability to get mortgage financing or purchase a home since it implies to the world that you are having serious domestic problems and that instability is a factor.

Slow progress after initial filing:

Delay while the action is ‘served.’ Under our legal system, there are very few cases which can proceed in court until the other person or parties have been delivered an official copy of the lawsuit.

(a) Service by a uniformed Sheriff’s Deputy: If the Defendant is local and not hiding, then service by a Sheriff’s deputy may take only a matter of days. If the address is not valid, the Defendant has moved, he or she is hiding out, or there are other problems, then service can take an extensive period of time and may even require the efforts of a private process server. The action does not officially get moving until service of the petition and two court notices attached to it (“summons” and “process”) occur.

(b) Acknowledgement of Service: The Defendant can agree to accept the documents without requiring that he or she be tracked down by a Deputy. The signing of this form can expedite the service issue and reduce costs but does not usually change the person’s right to object to the lawsuit or file defenses or counterclaims.

Delay while the Defendant responds: 

From the date of service (whenever it may be), a Defendant in a civil case has the right to file an Answer and possibly a counter suit. The period is typically 30 days from the date of service but there is a short period after that time when the case can be reopened. If no answer is filed then a default results which may give the complaining party everything he sought. The default may also provide less relief but, being unopposed, it can be moved to final status with relative speed. 

Delay for Mediation 

In civil cases in many counties in Georgia, a case cannot move before a Judge until it has gone through Mediation. This is a process where the parties, their attorneys and a neutral trained mediator confer together in an effort to settle the case without trial. Mediation is very successful in certain types of lawsuits.

In Fulton County, Georgia (Atlanta) there is a special court which has been set up for Family law which specifically moves cases such as divorce, child support, visitation and child custody through the procedure on a much faster path. This Family Court does not, at this time, hear adoption and parental rights termination cases.  

Delay for Discovery 

In Georgia civil cases, the parties have the right to ask questions of each other in sworn written or verbal form, or to require that certain documents be produced for examination. Similar procedures can take place to get information, evidence or records from third parties such as banks, insurance companies, schools, and so forth. Subpoenas can be used to compel uncooperative witnesses to respond.

Normally the rules provide that discovery occur within the six months which occur immediately after the Defendant responds to a complaint. This period can be lengthened if the parties request, and, in fact, the parties can continue investigating right through the point that the trial occurs if they wish.

Court calendars and scheduling by the Judge 

No matter how fast the parties wish to have their case heard, if they cannot settle they must go onto a court calendar with all the other unresolved cases. If you are placed on a calendar of thirty cases which will be heard on a certain date, then some of them will be settled at the last minute, some will ask to wait until the next time, and some will be heard that day. If twenty cases remain, though, and each case wishes to have an hour in which to tell their side, then obviously the Judge cannot handle them all and some will be reset. 

Criminal cases usually have priority over civil cases. Jury trial cases require special procedures. So the Judge may not hear civil cases more than one week a month. Despite the respect they are due, Judges are human and cannot make a thirty hour hearing fit into one 9 to 5 workday even if they wished. You don’t want the Judge tired, thirsty and crabby while you are presenting your evidence.

Conflicts by the other attorney 

This is one of the most irritating and costly forms of delay. Attorneys often have little control over the frequency and location of their court cases. All too often a popular trial attorney will need to be in three or four places at the same time. There is a procedure for prioritizing these cases but inevitably, the attorney who needs to be in the courtroom for your case may be down the hall or across town with a case in front of another judge. When this happens you may have to just wait, or your case may be reset to another date. This unfortunately means that if you are present with your witnesses and evidence, you may have to inconvenience them all to have them return again. The problem intensifies when there are a number of parties with separate attorneys on a case. The more attorneys who need to be present, the more likelihood of a scheduling conflict. 

Completion of Hearing without an Order 

In most cases the Judge will issue an Order at the conclusion of the trial or hearing but in some cases, particularly those with many pieces of evidence or complicated legal issues, the Judge may ‘reserve’ his ruling so that he can consider all of the points carefully before giving his Order. If this happens, the Order may be issued promptly or several months later. Every Judge has his or her own style and some have the assistance of law clerks to help with the workload.  

Appeal 

This may be the most aggravating delay of all. The case is won. You have an Order which defines the outcome but the other side files a notice of appeal. There are many forms of appeal. Some require the consent of the trial judge to file. Some may be filed in the form of an application to have the appellate court take the case (discretionary appeals), and others are direct appeals where there is a right to have the case reviewed – even if the appellate court did not wish to do so.  

Appeals are usually in month long delay segments. These time periods vary based on the type of case being appealed and the courts involved. In Georgia civil cases the appealing party has thirty days to file the notice that he plans to appeal. Then the transcript must be prepared which often takes 30 to 60 days. Then a Brief from the appellant must be filed. At this point the party who wants to keep the lower court ruling intact has a time period of another month in which to respond. Then there may be another exchange of briefs with additional times for each. If the Court allows oral argument, there may be another two to three months before that occurs. At that point, with all information being before the Court which it is allowed to consider, the Court can issue its decision whenever it is ready to do so – weeks, months or longer. The Appellate Court can ask for more information, it can transfer the case elsewhere, it can dismiss the appeal. At the least, four to five months can elapse before a decision is rendered. . .

WHICH MIGHT SEND THE CASE BACK TO THE LOWER COURT FOR PARTIAL OR COMPLETE RETRIAL. 

Summary: Delays in legal actions can be enormously frustrating. Even without problems of Defendants taking bankruptcy, parties dying, attorneys coming into and leaving the case, and general catastrophes, the system is not rapid. Mediation, arbitration and settlement are all preferable methods which put some degree of control back into the litigant’s hands. You should know what you are getting into when you commence a court action and should make inquiries at all times during the process to remain informed.

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Control of Emotions Takes Practice
By Lynn M. Swank  

Attitude is the key factor in surviving stress. The emotional conflicts of life will continue to pound you even when the facts are all on your side – so occasionally the best course is to accept and deal with the issue in the most positive manner possible. An author named Bill Borcherdt has created a very readable, helpful book entitled The REBT Resource Book for Practitioners, 2000, [published by Albert Ellis Institute, New York, New York]. In this book he develops a listing of concepts for coping. I have used some of the items in his list (paraphrased – my apologies to him) along with some of my own suggestions. In custody and any emotional litigation, use of these ‘attitude adjustments’ can be extremely helpful. 

1. What is past is behind me. My opportunities consist of today and my future.

2. Better for me to concentrate on what I’m doing today rather than on what I did or didn’t do yesterday or in times past. 3. Better to live productively in the present than to stew about the past.

4. The past isn’t going to get any better. 5. Announcing excuses about the past, and casting blame on others, will not make me a better person today.

6. Poor decisions and unfortunate events in the past do not have to be repeated in the present.

7. Negative gossip about others (true or not) will not make me a better person and may only fuel conflict which should have died away.

8. Because something once happened doesn’t mean that it will occur again or has to continue to happen. 9. No matter how bad any event was, I do not have to allow it to continue to have a negative influence on my life.

10. I cannot rewrite history and change what has already happened.

11. Whining and screaming about the injustices and unfairness of the past will only take a bad situation and make it worse.

12. Having been treated unfairly in the past is all the more reason to be fair to myself and others from this moment forward.

13. Now that I have experienced how not to treat people, I can have a better understanding of how they should be treated.

14. I can use what did not kill me in the past to make myself emotionally strong in the present.

15. I may have suffered some hurt or insult in the past, but I do not have to continue to inflict it upon myself emotionally.

16. Feeling sorry for myself, angry toward others, guilty, or ashamed due to something in the past will only continue to keep me from achieving happiness in the present and future.

17. What I tell myself today is much more important than what others have told me in the past or may say about me in the future.

18. Past experiences do not represent me. Rather, they represent things I have experienced; they do not make me into a better or worse person.

19. The enemy is not my past; the enemy is my way of thinking about myself.

20. What has happened to me is not nearly as important as what I decide to do with it.

21. There is no shame or defeat in seeking help from a counselor, psychologist, support group, friend, or other caring person. Many things in life are accomplished by teamwork.

22. Living well is the best “revenge!” 

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Topic: Estate Planning

APPLICATION FOR SOCIAL SECURITY DISABILITY BENEFITS

The application process for disability benefits begins with an interview and the completion of some required paperwork.   Now you can obtain Disability Report (SSA-3368) online along with instructions and suggestions on how to use the form.   This is an official social security site, written in plain language, and will allow you to cut significant time off both the interview and the application process time period.   http://www.ssa.gov/disabilityformhelp/

Estate tax changes after the 2001 Congress

By Lynn M. Swank

A catchy title would have been nice but this article is intended to sensitize individuals to the changes made by Congress to the Internal Revenue Code during the current year. Estate planning should be direct and predictable – unfortunately Congress did not include simplicity in its goals. The estate and gift tax changes are part of the Economic Growth and Tax Relief Reconciliation Act of 2001, termed by many as the most sweeping restructuring of the federal tax laws in the past 20 years.

The most publicized portion of this tax act is the rebate provision. Checks for $600 to married couples, $500 for heads of household, and $300 for single persons will be mailed by September. However, the Act had far reaching estate and gift tax consequences.

Just as with prior estate tax law revisions, the new law has a phase-in period. Over ten years, there will be differing aspects of the law which apply. The outcome for an estate or gift will be subject to that year’s special rules. If you do make a Last Will and Testament, then you need to review the provisions based on the size and distribution plans of your estate relative to each of these time periods because federal revenue laws and your State rules will not use the same rules from one year to the next.

Specifically for individuals (without considering spousal by-pass trusts):

Year	Exemption Amount	Maximum Estate Tax Rate
2002	$1 million	50%
2003	$1 million	49%
2004	$1.5 million	48%
2005	$1.5 million	47%
2006	$2 million	46%
2007	$2 million	45%
2008	$2 million	45%
2009	$3.5 million	45%
2010	REPEALED	REPEALED

· Then in 2011 the law reinstates all taxes which exist as of the date of enactment -- a ‘spring back’ to the rules of 2001.
 

The first years under this Act will be a chaos of re-planning, however it is very doubtful that the last part of the decade will occur as outlined in this legislation. Congress will stir the mix several times before many of the effective dates are reached but for now it means that long term planning will be vague, unreliable, and subject to numerous revisions..

There are obvious problems with the changes caused by the new law:

· Inherited capital gains: The real concern is that in 2010 the problem of inherited capital gains issues may resurge. Today, you're not taxed on inherited capital gains. At present, tax is at the estate level but not on the capital gains accumulated in assets during the lifetime of the deceased. There are some exceptions and permitted transfers under the Act, but simply put, in 2010 and beyond even if estate tax is not due, there may be capital gains tax to be paid by heirs on what they take from estates. An example of the problem is that a parent would have to be very careful in dividing his or her estate among the children.

For example:

Marion dies in 2010 (under the current law) and leaves $100,000 in a bank account to Mary, $100,000 in real estate to Tom which the parent purchased for $30,000, and an IRA with $100,000 in it to Susan. Only Mary actually receives an inheritance of $100,000. Tom would pay capital gains tax on $70,000 of his inheritance so he would be out of pocket by approximately 28% of $70,000 [ $19,600 in federal tax without even considering any state income tax], Susan would pay personal income tax (Federal and State) on the IRA as it comes available to her.

· State death tax credits: Under present law most state death taxes are contained inside the federal estate tax bill. A portion of what should be paid to the Internal Revenue Service is paid to the estates and deducted dollar for dollar from the federal total due. However, the new law gradually reduces the state death tax credit between 2002 and 2004. Then in January of 2005 there will no longer be a credit for state death taxes but merely a deduction against the gross estate up to certain maximums. Previously state death taxes have been almost invisible and ‘painless.’ Now many states are anticipated to enact their own separate assessments so that their revenue does not cease after year 2004. If there are no Federal rules to apply, then States must develop their own, perhaps localized rules.

· Deduction for family owned businesses: this complex calculation is scheduled to end effective January 1, 2004. The assets which have been protected inside family owned business enterprises will be taxed, if at all, more heavily and rapidly than before.

· Other changes affect generation skipping transfers, payment of estate taxes, and exclusion on sales of principal residence and issues on conservation easements.

There are levels of exemption and change. The best way to view the estate tax planning arena from today through this statutory phase-in is that all plans must be made on an individual basis and reviewed frequently. The composition of assets and the anticipated size of the estate are factors which will evolve in most people’s lives as time passes

WHAT SHOULD YOU DO?

 Maintain and standardize your financial records. Your estate may legitimately need to demonstrate your cost and improvement basis in assets. Issues of potential capital gains tax to heirs are real. These heirs should have access to reliable, usable, readable, information (with underlying receipt and documentation) so that they can minimize any tax impact.

 Review your Last Will and Testament and any trusts. Under current law, married couples can cut their estate taxes by leaving money to children in a bypass trust. The income from the trust goes to the surviving spouse for life. Improper planning or leaving an estate under an old, outdated plan can leave the bulk of the estate to the children’s trust and very little to the surviving spouse. The outcome could be the reverse of your intentions. Your spouse accidentally left at the economic mercy of your children due to changes in the tax laws.

 Re-evaluate any gift giving program. Previously parents might consider depleting their estates by making annual gifts to heirs and beneficiaries. Depletion of estate for federal estate taxes may have less purpose now. (This brief article does not address issues of qualification of the elderly for Medicaid assistance with nursing homes and long term care).

 Evaluate pre-marital agreements, ownership status of assets, and potential acquisition of new assets. Some assets should be controlled by a surviving spouse and others may have better uses. With individuals living longer and more actively, retirement planning may need to cover as much as one half of an individual’s adulthood.

© 2001 Lynn M. Swank, attorney

"If Patrick Henry thought that taxation without representation was bad, he should see how bad it is with representation."

--- The Old Farmer’s Almanac
 
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Topic: Adoption 

The Good and the Bad of Step-parent Adoption
By Lynn Swank 

Children who have only one parent usually dream of having two. Single parents who had help once but lost it due to separation, divorce, or perhaps the spouse's death, look forward to having the assistance of a new adult partner in their home. Parents who never had a spouse may look forward to the creation of a more traditional household. In all of this, the child wants to be part of the family, not a part who is connected to one grownup and not to the other. Children are very sensitive to the different status of other children in the household as well. Issues can be very complicated, such as:

'fairness' in the amount of funds available for support of each child,
the gifts or family relationships which may vary between step-children's extended families,
the problem of multiple last names,
different and often conflicting visitation schedules, and
different health care providers and health insurance programs.

Step-parent adoption is often the choice in these situations. It is more common in Georgia that a new husband adopts the children of his wife but, of course, it can be either parent who adopts. For the purposes of this article, the adoptive step-parent will be considered to be the husband and the legal parent will be the 'wife/existing mother.'

There are certain conditions which must exist for step-parent adoption to occur:

1. the legal father of the child must consent or be in a position where his parental rights can be terminated by court action,
2. if there is no legal father, then the possible biological father (or fathers) must have notice and an opportunity to legally form (or abandon) a relationship with the child
3. the child, if age 14 or older, must consent to the adoption,
4. the child's parent and the step-parent must be legally married,
5. the adopting person must have lived in Georgia for more than six months prior to filing the petition, and
6. the adopting person must be at least 10 years older than the child being adopted¹

When a step-parent adoption is granted by a Court, the child's name can be newly designated in whole or in part as that chosen by the newly adopting parent and spouse. One of the most public reasons for step-parent adoption is to give the child the same last name as other members of the household (particularly if there are children of this new marriage). A new birth certificate is created which shows the child's new name and status.

By this adoption the former step-parent has moved into a legal position equivalent to that of the biological parent. This is one of the major problems which is often ignored by the happy couple considering the procedure. Most parents focus on getting the 'old' dad out of their lives. He may be delinquent in payment of child support, in jail, never around or (from their point of view) a dangerous influence on the child. These are 'negative' reasons for adoption. The parent and step-parent usually have positive reasons for adoption by often cutting out the prior parent is the driving force. 

The result of the step-parent adoption is that the new husband and the child's biological mother are placed on equal footing regarding the child's support, custody and legal needs. In the even that a separation or divorce ever occur between the adoptive husband and the mother, there is no assurance that the custody would be placed by a court in the biological parent. There have been cases all over the state where the adopting step-parent has received custody in the event that the marriage fell apart, and the biological parent been ordered to pay child support. "Fair" is not the issue. Judges are directed to make their decision based on the best interests of the child, which may not lie with the biological parent. 

There is a flipside to this issue. In the event that the marriage should not sustain itself after the adoption has occurred and the biological mother should receive or be conceded custody, then the adoptive father will be compelled to pay child support just as if he were the original biological parent. The obligations do not ever go back to the biological parent when such a marriage breaks down after a final adoption. The effect of the severance of parental rights which occurred in that adoption, legally disconnected the child from his original birth father. 

That is one other issue which is often not considered by the couple when choosing to adopt. Although step-parents have no legal rights to control or consent for the child, they also have no legal obligations to support. The relationship is social and the step-parent's extended families can also be very close to the child. The child may have a set of Dad's family, Mom's family and the new step-Dad's family - all supportive of the child's needs. Even if the biological father is a disinterested and non-paying, his relatives may have connections to the child, and the child to them. The impact of adoption is to terminate the biological links and gorge new legal ones. Sometimes this is very hard on the child and on those biological relatives who have strived to maintain a connection.

After adoption the new dad has legal rights to consent to medical care, to enroll the child in school, and to take parental responsibility for acts done to and by the child. All of these are very valuable and important rights. Typically the child gains a tremendous amount in the process and the mother gets legal, financial and emotional support as a parent. But just as the adoptive step-parent is making a serious commitment, so is the biological parent who allows the adoption - she should be very aware of the risks which co-exist inside the benefits. 

¹ Adults can be adopted in a much more simple procedure, however that is not the scope of this article. 

 

Changed Citizenship Rules for Adopted Children 
By Lynn Swank

When an American adult plans an adoption, the intention is to expand the family, to add a child who will grow up to have all rights and privileges of any other person in this Country. The issue of citizenship has always been a very complex aspect when the child to be adopted is located in another country.

As of February 2001 with the implementation of the Child Citizenship Act of 2000 the rules changed. Now most children who are legally adopted through the process in their home country will return to the United States with their new American parents and automatically have full rights of citizenship. Most – not all. Expert assistance should be sought to evaluate each situation and verify that all procedural steps are properly taken. However, as a generalized explanation, this new legislation amends the Immigration and Nationality Act (INA) to liberalize certain procedures.

For the child to have automatic United States citizenship, all of the following must be true:
 

	At least one adoptive parent of the child is a United States Citizen (by birth or naturalization)
	The child must not have reached his or her 18th birthday,
	The child must be living in the United States in the physical and legal custody of the US citizen parent and was lawfully admitted when he came into the US as an immigrant for lawful permanent residence.
	If the child has been adopted, the adoption must be final.

If an adoption has not been finalized but the child has been properly admitted into the US, then citizenship will be automatic when the adoption has been completed or when the last of the requirements have been satisfied. The sequence of events listed above is not a requirement as long as all of them occur. If the child has not entered the United States then this provision does not apply regardless of finalization of the adoption or status of the adoptive parents.

What proof or documentation is needed when the child needs to prove that citizenship has been acquired? Does the adoptive parent need to apply for a Certificate of Citizenship? NO, the Immigration and Naturalization Service indicates that when the child needs to have a passport or proof of citizenship, the adoptive parent must merely produce
 

1. evidence of the child's relationship to a U.S. citizen parent (a certified copy of the foreign birth certificate for children born to an American or, if adopted, a certified copy of the final adoption decree);
2. the child's foreign passport with INS's I-551 stamp or the child's resident alien card; and
3. the parent's valid identification.

The foreign passport entry stamp or resident alien card are the proof of lawful entry into the United States. As a practical matter, the parent must also be able to demonstrate that the child had not reached the age of 18 at the time at which admission into the US or adoption occurred.

The Act's Other Provisions

Another section of this new law provides that children (biological or adopted) of U.S. citizens who are born and reside abroad (that is, they do not enter the U.S. as permanent residents) and who don’t become U.S. citizens at birth can apply to INS for a certificate of citizenship if the following conditions are met:
 

1. At least one parent of the child is a U.S. citizen, whether by birth or naturalization.
2. The U.S. citizen parent has been physically present in the U.S. for a total of at least five years, at least two of which are were after the age of 14. If the child's U.S. citizen parent cannot meet this requirement, it is enough if one of the child's U.S. citizen grandparents can meet it.
3. The child is under the age of eighteen.
4. The child resides abroad in the legal and physical custody of the U.S. citizen parent and has been lawfully admitted into the United States as a nonimmigrant.

Non-resident children who acquire citizenship under this new provision do not acquire citizenship automatically; rather, they must apply to INS for a certificate of citizenship and go through the naturalization process.

For additional and more specific information see the Web site of the US State Department http://travel.state.gov/childcitfaq.html

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