Emily Clark Cuellar

I Just Took a DNA Test, Turns Out it was Irrelevant to the Determination of Legal Parentage

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The relationship between parent and child is not only foundational to how we view our family structures but is an important legal designation which brings with it many rights and responsibilities. However, perhaps unlike biological parentage, there are many different ways to make a legal family. Some people may be surprised to learn that DNA and gender have no relevance to legal parentage.

In 2017, the Oregon legislature updated the parentage statutes to account for the legalization of gay marriage and the increasing use of assisted reproduction in the creation of families. As far as this author knows, all states have at one time had a statute which declares that when a man and woman are married the husband is presumed to be the father of any children born during the marriage. However, for couples who are not cisgender and heterosexual, this statutory presumption has historically omitted them—requiring the non-birthing party to formally adopt a child, even if the parties were married. The statutory change in 2017 resolved this issue by changing the presumption that any person married to the birthing party is presumed to be the legal parent to a child born during the marriage. No one can challenge the presumption of the spouse’s parentage while the parents remain married, except with the permission of the spouses—even if that person is biologically related to the child.

In practical terms this means that a child born to one member of a married couple will automatically have two legal parents regardless of the parents’ genders—no adoption required. Importantly this child’s parents will be their legal parents for all purposes—child custody, child support, and intestate succession, to name a few. For this reason, an understanding of the legal parentage statutes is important not only for those working with families, but for personal representatives and trustees who need to make determinations about who may constitute a beneficiary’s descendant. When dealing with same-sex families, personal representatives and trustees should not make assumptions about who a beneficiaries’ parents or children are but should gather all the necessary facts when determining parentage. These facts include whether the parties were married at the time of birth (or within 300 days before birth), whether there was ever an adoption, and whether there was a subsequent action regarding a party’s parentage.

If you have questions about how legal parentage may affect your legal matter, the attorneys at SYK have a wide breadth of knowledge in family law, probate administration, and estate planning, and would be happy to assist you with your issue.

Oregon Appellate Court Requires that a Judge Give Specific Reasons Before Denying a Name or Gender Marker Change

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City Hall - Portland Pride - Gender Choice

In 2017, the State of Oregon made it significantly easier for someone to change their name and gender marker by streamlining the process and providing statewide forms for use in every county. However, a judge may deny a change of name or gender marker if the change is not in the “public interest.” A judge in Marion County denied the change of an imprisoned woman’s name and gender marker, finding that it was “not in the public interest for [her] name and sex to be legally changed.” However, the court did not explain why it was not in the public interest seeming to rely only on the fact that she was in prison. The Oregon Court of Appeals found that the mere fact that a petitioner is incarcerated does not mean a change of name or gender marker is inconsistent with the public interest. Instead, the Court held that

[A] court may deny a petition for change of legal name or sex only where the record contains evidence that the change of legal name or sex is inconsistent with the “public interest”—that is, where the record contains evidence that change of legal name or sex is sought for some purpose harmful to the wellbeing of the general public, including, but not limited to, fraud, dishonesty, misrepresentation, evading creditors, or interfering with the rights of others.

Matter of Jondle, 317 Or. App. 303, 304 (2022). The Court of Appeals sent the case back to the trial court to make findings that the name/gender marker change was or was not in the public interest.

The State of Oregon’s forms for a name and gender marker change ask a petitioner to state whether they owe child support arrears; have a protective order, stalking order, or restraining order in effect against them; are currently on probation, parole, or under post-prison; or are required to register as a sex offender. However, answering yes to any of these questions does not mean the request to change one’s name or gender marker will be denied. These are only ways for the court to determine whether the public interest will be implicated. The Court of Appeals has now affirmed that someone cannot be denied outright without giving a reason why a denial is in the public’s interest. If you have concerns that you will be denied a name or gender marker change for one of these reasons, or another reason, you may want to enlist the help of an attorney with experience in name and gender marker changes.

The CARES Act & Divorced or Separated Parents

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“Perhaps due to the speed with which the law was passed, the Act is silent on how it will distribute the rebate money to parents who are divorced or separated.”

On March 27, 2020, Congress passed the CARES Act, a sweeping piece of legislation aimed at providing relief to individuals, families, and businesses adversely affected by the Coronavirus pandemic. The Act will have different repercussions for individuals in different circumstances, but the provision with perhaps the broadest impact is the recovery rebate. More commonly referred to as a stimulus payment, the recovery rebate is a one-time payment to US citizens and residents. For most the recovery rebate is good news, but for unmarried, divorced, or separated parents sharing custody of their children, the rebate may usher in unwelcome complications.

Individuals who make less than $75,000 will receive $1,200 plus $500 for each child that qualifies for the Child Tax Credit. However, many parents who share equal parenting time with their children alternate which parent claims the Child Tax Credit from year to year. Perhaps due to the speed with which the law was passed, the Act is silent on how it will distribute the rebate money to parents who are divorced or separated.

The recovery rebates are based on taxpayers’ 2019 tax return (or 2018 for those who have yet to file their 2019 return). The most likely result is that the parent who claimed the children in 2019 will receive the additional money for their qualifying children. This payment is a fully refundable tax credit, meaning it can be received by taxpayers regardless of what tax is owed. The rebates are technically a prepayment by the IRS of a 2020 tax credit; whichever parent claims the children in 2020 will have the rebate factored into their 2020 taxes. For parents who claim their children in alternate years, the tax rebate poses a unique problem that the IRS has yet to address. The parent who claimed their child in 2019 will probably receive the rebate if they have not already. However, the parent who will claim the child 2020 is also likely to receive the rebate after filing, if they did not receive it previously. What is unclear is whether the IRS will require the return of any overpayment, if not both parents may benefit from the stimulus.

The IRS may address this issue in future guidance, but we recommend that amicable co-parents be proactive in discussing how they will use the rebate money so that it can best benefit the child. A frank conversation about how to use the money may prevent disagreements in the future. While we encourage parents to reach out to their attorney with questions related to the rebate, it is likely that the cost of litigation to resolve this issue will far exceed the amount of the rebate.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

A Pandemic Economy: Modifying Spousal or Child Support Awards

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Oregon’s unemployment rate has risen to a historic high of almost 15{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} in the wake of the COVID-19 pandemic, leaving many in a state of uncertainty about how they will make ends meet. For those who are party to a child or spousal support award, a change in employment may be grounds for modifying the terms of their support award. When there has been a significant, unanticipated change in economic circumstances, the court will consider a petition to modify a child or spousal support award. You would be hard pressed to find anyone who anticipated the COVID-19 pandemic. If you have lost your job or are otherwise significantly impacted by the pandemic, you may consider requesting a child or spousal support modification.

Courts determine the child support awards using a formula based on the income of both parents as well as other factors. Because courts deviate from this formula only in extraordinary circumstances, parents who wish to modify their child support obligations should run the numbers to see if their change in income will result in a change to their child support award. The Oregon Department of Justice provides a useful calculator to help parents determine child support awards.

The guidelines for spousal support are less formulaic than those for child support. Courts will modify spousal support after a change in economic circumstances, if the modification supports the original purpose of the award. Some parties’ judgments do not specify the original purpose of the award. In those cases, the court will assume the award was based on an attempt to distribute the incomes of the parties fairly. The court may then modify the award if either party has a substantial change in income. However, if both parties have a substantial decrease in income, then the court will be less likely to modify the award because the relative position of both parties has stayed the same.

For both child and spousal support modifications the court has the authority to modify the award retroactively, but only to the date of a party’s modification request. This means if you were laid off in March or April and you do not file to modify until July, the earliest date the modification will be effective is July. Filing a motion as soon as you learn about a significant change in income is important because a retroactive award allows you to receive money for the time that motion is in court.

The first step to modifying child or spousal support is to file motion with the court and give notice to a co-parent or ex-spouse. Many courts in Oregon are currently closed or operating on limited hours due to the pandemic. If you are planning to file with your county court, you may wish to check the status of your court on the Oregon State Courts website. We encourage anyone interested in making a request for support award modification to consult an experienced family law attorney.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Family Law Experts Issue Recommendations for Co-Parenting During Pandemic

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Lots of families are struggling with how to best protect and parent children as the world responds to the COVID-19 pandemic. However, divorced parents may have additional concerns, such as “Is it safe to allow my children to travel to their other parent’s house for parenting time?,” “How can supervised parenting time continue if it was usually held at a restaurant?,” and “When is spring break, anyway?”

While each family may decide to approach these issues differently, the Oregon Statewide Family Law Advisory Committee (“SFLAC”) has issued recommendations for families who cannot reach their own agreements. Some common issues are addressed, such as:

  1. Definition of Spring Break, Summer Break/Vacation or Holidays: While the schools are closed, parenting time shall continue as if the children are still attending school in accordance with the school calendar of the relevant district. ‘Spring break,’ ‘summer break/vacation’ or other designated holidays, means the regularly calendared breaks/vacations or holidays in the school district where the children are attending school (or would attend school if they were school aged). The closure of the school for public health purposes will not be considered an extension of any break/vacation/holiday period or weekend.
  2. Parenting Time in Public Places: Governor Brown has forbidden all nonessential gatherings, regardless of size. If the parenting plan states that parenting time will occur in a public place, parenting time should continue at locations that are permitted under the health and safety guidelines for the state, such as a large park or nature hike. Public places where people routinely touch common contact surfaces (such as parks and play equipment) should be avoided. However, activities where parents and children can maintain social distancing and avoid such surfaces are encouraged. If that is not possible, then the parenting time should be conducted virtually via videoconferencing or by telephone.
  3. Governor’s Executive Orders regarding Travel: The Governor has issued executive orders that restrict travel except for essential activities, which generally include caring for minors, dependents and/or family members. Therefore, unless otherwise directed by the Governor or other executive order, the parties should continue to follow the parenting plan as written while such orders are in effect.
  4. Transparency: Unless the parties are restrained from communicating, parents are encouraged to communicate about precautions they are taking to slow the spread of COVID-19. A parent is not permitted to deny parenting time based upon the other parent’s unwillingness to discuss their precautionary measures taken, or belief that the other parent’s precautions are insufficient.

The full list can be found here: http://courts.oregon.gov/programs/family/sflac/SFLAC{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6}20Documents/SFLACGuidelineForParentsDuringCOVID19Pandemic.pdf. SFLAC is a panel of judges, trial court administrators, mediators and evaluators, attorneys, family court service providers, and representatives from various state agencies who advise the State Court Administrator on family law issues in the courts.

National groups The Association of Family Conciliation Courts (AFCC) and the American Academy of Matrimonial Lawyers (AAML) provided a joint statement last week with additional guidelines for co-parents. These can be found here: https://www.thecenterforfamilylaw.com/afcc-aaml. The consensus among professionals is that while parents should be mindful of protecting their children from infection and transmission of the disease, it is also important to continue following the parenting plan or other court orders unless doing so becomes impossible.

If you have additional questions about how to appropriately co-parent in this stressful and uncertain time we recommend that you reach out to a family law attorney.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Changing Your Name and Gender in Oregon

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City Hall - Portland Pride - Gender Choice

Oregon is on the move to become a more transgender and non-binary friendly state.

In 2016, an Oregon judge allowed Jamie Shupe, a person who identified as non-binary, to change their identity to a neutral third gender. The judge’s decision to allow a non-binary gender is widely believed to be the first of its kind in the United States.

After this decision, Oregon gained momentum in creating a more streamlined process for those wishing to change their name and gender. Changing one’s name and gender previously was a complicated process. It often differed from county to county, and could not always be accomplished alone.

However, starting in 2017, the State of Oregon Judicial Department began providing statewide forms for both adults and minors who want to change their name and/or gender. The petition allows the applicant to decide whether they want to identify as male, female, or non-binary. The forms provide instructions for filling out a petition, as well as the cost and where it can be filed. Those forms can be found here: http://www.courts.oregon.gov/programs/family/forms/Pages/name-sex-change.aspx

No court order is necessary to change a gender indicator.

Additionally, as of July, 2017, the Oregon DMV also allows residents to change their gender marker to male, female, or a non-binary designation: “X.” To change a marker, an applicant will need to go to the DMV, and turn in a completed application with the desired indicator marked. They also are required to pay the renewal or replacement fee for their identification card. No court order is necessary to change a gender indicator. Please note that in order to change a name on a driver’s license or ID card, an applicant will need proof of a legal name change. One method of proof is to have a court order showing the legal name change. Forms and information can be found here: http://www.oregon.gov/ODOT/DMV/Pages/DriverID/chg_gender_designation.aspx

For those born in Oregon, there is also an administrative option for updating Oregon birth records to reflect accurate gender identity. This new option became available in January, 2018. It allows a one-time gender and name change without having to go through the courts. An applicant may request to be listed as male, female, or non-binary. An applicant will need to submit a notarized document, as well as a fee. For more information see: http://www.oregon.gov/OHA/PH/BIRTHDEATHCERTIFICATES/Pages/rules.aspx

With these changes, Oregon remains on the forefront of transgender issues. If you would like help in changing your name and/ or gender, contact a family law attorney.

Emily Clark is a litigator at Samuels Yoelin Kantor, with her practice centered around family law. Her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations, probate, and business transactions.

In Memory of Harper Lee

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Harper Lee

Great American author Harper Lee will be remembered

Harper Lee died today at the age of 89. Best known for her works “To Kill a Mockingbird,” and her more recent sequel “Go Set a Watchman,” she is particularly beloved in the legal community for her creation of the character Atticus Finch—a small town attorney whose kindness was surpassed only by his integrity. An informal poll of the attorneys of Samuels Yoelin Kantor revealed that many of us were influenced in part by Atticus Finch when making the decision to attend law school. Several still consider Atticus, at least as presented in “Mockingbird,” an aspirational standard and archetype for the profession.

Harper Lee was born in 1926 in Monroeville, Alabama, which remained her home until the time of her death. She was the youngest daughter of Francis Finch Lee and Amasa Coleman Lee, an attorney who was the primary inspiration for Atticus Finch. Her elder sister Alice, who passed away at the age of 104 in 2013, was also an attorney who practiced into her 90s, and acted as Ms. Lee’s agent and supporter.

Ms. Lee was famously publicity-averse and refused to speak about her own life or work publicly. Which made it a shock in 2015, when it was announced that HarperCollins would publish a sequel to “Mockingbird.” Many in the literary community questioned whether Ms. Lee had the mental capacity to approve its publication, and wondered suspiciously at the timing—taking place after her sister Alice’s death. “Go Set a Watchman” gained further notoriety for its portrayal of an elder Atticus, who has become anti-integrationist and biased in his elder years. In our informal office poll one attorney called “Go Set a Watchman” a “huge revelation as to how an idol can change.” Perhaps now that Ms. Lee has passed, more revelations will come out regarding the circumstances under which the sequel was published.

Despite the turmoil surrounding her creation over the last year, “To Kill a Mockingbird” will likely remain an enduring piece of the American literary canon. And hopefully Harper Lee’s first portrayal of Atticus Finch will continue to inspire lawyers and law students as an example of the aspirational standard of the profession.

ABLE Act – New Planning Tools for Families

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On October 5, 2015, Oregon Senate Bill 777D became effective. In this bill, Oregon implemented the federal ABLE (Achieving a Better Life Experience) Act. This legislation gives families use of a tax-deferred savings plan, similar to the 529 college-savings plan, to save for individuals with disabilities. These plans would have the tax benefits of 529 college savings plans combined with the benefits of a special needs trust, in that the account would not count as a qualifying asset when determining qualification for needs based aid such as Social Security Income and Medicaid.

There are important differences between ABLE plans and special needs trusts of which families should be aware. First, ABLE plans can only be created for people who are disabled before the age of 26 and all funds are subject to payback after the recipient’s death. Second, the funds can only be used for qualifying expenses, and that list may be narrower than the qualifying expenses from a special needs trust, depending on how the trust is drafted. Third, contribution and asset caps apply to an ABLE account, whereas they do not apply to a special needs trust. However, the cost of creation and administration of an ABLE plan will likely be significantly lower than those of a special needs trust, making them a helpful planning tool for lower income families.

At this point, though the ABLE Act is now effective in Oregon, it is unclear exactly how the plans will be managed. The IRS issued proposed regulations in June of this year, which gives the state more guidance in establishing the plans. SB 777D requires the Oregon 529 Savings Board to establish rules and maintain the program in accordance with the requirements of the federal ABLE Act. Families who may benefit from these new accounts should keep an eye on the Oregon 529 Savings Board as they draft these rules.

For more information on the ABLE Act, read our previous post “A Tax-Favored Solution for Individuals With Disabilities“.

The Truly “Modern Family”

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In February of this year news broke that Sofia Vergara, one of the stars of the hit show “Modern Family,” was being sued in California state court by her ex-fiancé, Nick Loeb. Mr. Loeb brought his suit in an attempt to void a contract governing what would happen to a very important shared asset—their frozen embryos.

When they created the embryos, the parties agreed that the embryos could not be used unless both parties consented. Unsurprisingly, now that the couple has split, Ms. Vergara does not consent to Mr. Loeb’s use of the embryos. But, Mr. Loeb argues he should be allowed to bring the embryos to life using a surrogate, rather than let them stay in frozen storage indefinitely.

California does not yet have binding case law on this issue, so it will be interesting to see what the court decides. However, in Oregon, it is unlikely that Mr. Loeb would be successful. In 2008 the Oregon Court of Appeals held that in a divorce between two parties, distribution of their frozen embryos would be governed by a contract the parties signed when they created the embryo. The court allowed the wife to destroy the embryos, per the contract provisions, despite the husband’s moral objection to their destruction.

Cases such as this are good examples of the confusion created when courts are required to step in to resolve messy domestic disputes. Even in situations where there is a contract between the parties, emotions and morals are so inextricably intertwined with the contract, that it is hard for parties to come to an amicable resolution. But, as courts around the country continue to resolve these case such as this, it will give parties a clearer understanding of how these contracts will be interpreted in the future.

For more information on this case, see this NY Times article, and MSNBC.

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