Posts Tagged ‘minority’

Probate Judge Sets Visitation Schedule in Minor Guardianship

DECEMBER 5, 2011 VOLUME 18 NUMBER 41
Most of the guardianship issues we deal with at Fleming & Curti, PLC, involve adults who have limited capacity or special needs. Sometimes, though, the subjects of a guardianship proceeding are minors; that can bring unique issues to the process.

There are a few legal principles that govern guardianship of minors:

  1. Minors are by definition “incompetent” under the law. In other words, they can not enter into binding contracts, they can not make enforceable decisions about their own living arrangements and health care (though “emancipated” minors may be different, and special exceptions may apply to the broad principle laid out here).
  2. Parents are the “natural guardians” of their minor children. That means they do not need court involvement to take responsibility for and control of their children’s care.
  3. Disputes between parents (usually, but not always, after they are divorced) about upbringing, care, education and living arrangements can be resolved in court — but the court involved is usually the domestic relations (sometimes called divorce or family) court.
  4. When parents are unfit, the decisions about placement, care, education and visitation are likely to be handled by a different branch of court, usually called juvenile court.
  5. Guardianship of minors is not uncommon, but in Arizona (as in most states) it is only appropriate when there is no parent available to exercise parental control. Of the three types court proceedings dealing with minors (juvenile, domestic and guardianship), the guardianship process is the least-used and usually the least-important.

Every generalization has its limitations, of course (presumably including this one, but that’s a philosophical issue for another day). Guardianship proceedings can and do exist for minors, and significant legal and family issues can and do get resolved in the guardianship context. Consider the case of the Smith/Lowrance/Wallace family in Arkansas.

In 2005 Timothy Wallace shot and killed his wife Brandy and a friend. Although he fled the United States after being released on bail, he has been returned, tried, and sentenced to two life terms. The death of Brandy Wallace and the incarceration of her husband meant that the couple’s three minor children, identified in court papers as “ZW,” “MW” and “CW,” had no parents available to raise them.

Three family members stepped forward to assert their priorities. Brandy Wallace’s mother (Janet Smith) and brother (Brian Lowrance, along with his wife Anna Lowrance), and a half-sister each argued that they should be appointed guardian for the three children. The court initially appointed Ms. Smith and the Lowrances together; after a later agreement and hearing, the Lowrances were appointed as permanent guardians and Ms. Smith was given a right to reasonable visitation with her grandchildren.

For several years the parties worked out a visitation schedule without too much conflict. In early 2010, though, Mr. and Mrs. Lowrance decided to limit Ms. Smith’s visitation; they required that all her visits with her grandchildren had to be supervised by one of them, and they cut off any overnight visits. Ms. Smith asked the probate judge (in Arkansas, as in Arizona, minor guardianships are handled in the probate court) to order the Lowrances to return to the earlier and more generous visitation schedule.

After a hearing the probate judge scolded both parties. He chastised the Lowrances for modifying the visitation arrangements unilaterally, and told Ms. Smith that she would have to find transportation to visit her grandchildren or give up visitation. Then he ordered a specific visitation schedule, similar to the kind that divorced couples sometimes see when the courts attempt to regulate the behavior of parents who can not work out visitation on their own initiative.

Mr. and Mrs. Lowrance appealed the imposition of a specific visitation schedule. They argued that they had done nothing wrong, and that they had just been protecting the children from a dangerous situation. They pointed out that Ms. Smith had allowed two of the children, then aged eleven and seven, to operate a “chainsaw.” While Ms. Smith acknowledged that she had allowed the two to operate a battery-operated saw, she agreed not to permit them to use any power tools in the future, and the probate judge had entered an order to that effect.

The Arkansas Court of Appeals agreed with the probate judge that, given the disagreements and the parties’ inability to work out their differences, a specific visitation schedule was in order. Although the relationship of Ms. Smith to the children is not the same as a parental relationship, the appellate judges ruled that the goal in a guardianship action should be the same as in domestic relations proceedings: serving the best interests of the minor children. Given the history of disagreement and litigation, the probate judge’s order “achieved the best interests of the children by fostering continued relationships, by eliminating continued litigation, and by crafting visits to fit with the children’s busy lives.” Lowrance v. Smith, 2011 Ark. App. 725 (November 30, 2011).

Claim Against UTMA Custodian For Taking Funds Filed Too Late

OCTOBER 28, 2002 VOLUME 10, NUMBER 17
Allan Levine thought it was a good idea to set aside some money for his young grandchildren, Derek and Danielle Levine, and so in 1987 he established investment accounts for them. He used a popular and easy way of setting aside the money—he created accounts under the Uniform Transfers to Minors Act, or UTMA, listing himself as custodian. Apparently, however, Mr. Levine did not understand that the UTMA accounts really belonged to his grandchildren.

In December, 1995, Mr. Levine withdrew almost $125,000 from the two accounts and placed the proceeds into his own living trust. That trust provided that it would benefit Mr. Levine for the rest of his life, and that it would go to his wife Karen Levine upon his death. In other words, Derek and Danielle Levine would no longer receive any portion of the money that had been set aside for them.

Mr. Levine died in 1999. Because he had established a living trust, there was no probate required—his entire estate passed directly to his widow. His granddaughter Danielle was 17 at the time of his death, and grandson Derek had just turned 18 four months earlier.

Eighteen months after Mr. Levine’s death his grandchildren sued his widow, claiming that they were entitled to a portion of the money she had received from their grandfather’s trust. She moved to dismiss, not because he had the right to withdraw money from the UTMA accounts but because state law bars suits filed more than one year after the death of the defendant, and the grandchildren’s claim was really against Mr. Levine’s estate. The trial judge dismissed the lawsuit.

The general rule is that the claim of a minor is not foreclosed while he or she is still a minor. Danielle Levine argued before the California Court of Appeals that she had filed her lawsuit less than one year after reaching her majority, and that she should be allowed to prove that her grandfather had breached his duty to her by taking back his gift. The Court of Appeals disagreed and allowed the dismissal to stand. Levine v. Levine, October 17, 2002.

Mr. Levine’s behavior was not all that uncommon. Parents and grandparents often set up UTMA accounts for their offspring, then later decide they want their money back. Had Derek and Danielle Levine filed their lawsuit against their grandfather before his death, or against his estate within one year after his death, they would probably have prevailed; the UTMA money was not Mr. Levine’s to do with as he pleased, even though he was still listed as custodian on the accounts.

Arizona, like California, has adopted the UTMA—and the rules are similar in Arizona. Some states (and some older accounts) may still refer to the predecessor to the UTMA—the Uniform Gifts to Minors Act or UGMA. The rules governing UGMA accounts will also be similar. Money set aside in a UTMA (or UGMA) account no longer belongs to the donor, even if he or she remains as custodian.

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