grandparents’ rights, DuPage County Family Law AttorneyMany parents and grandparents are not familiar with the term grandparents’ rights until a disagreement arises between the parents and grandparents, or one of the parents dies and the grandparents’ relationship with their grandchildren is discontinued. When the grandparents no longer have access to, or are limited in the amount of time they can spend with their grandchildren, they may begin to explore their legal rights to visitation with their grandchildren.

In deciding cases requesting grandparents’ rights to visitation, courts begin with a presumption that fit parents have a right to make the appropriate decisions regarding who their children can see. This is because the Supreme Court of the United States has held that parents have a constitutional right to make decisions on the care, custody, and control of their children.

Nevertheless, Illinois law allows grandparents to make a request for visitation with their grandchildren under certain circumstances. Illinois law specifically states that a petition for grandparents’ visitation can only be filed if there is an unreasonable denial of visitation by the parent, the denial has caused the grandchild harm, and at least one of several other criteria are met. The law also focuses on the best interest of the child. If there is a chance that visitation with the grandparent will cause emotional, physical, or mental harm to the grandchild, then chances are visitation will not be awarded to the grandparents.

Custody Rights

Grandparent petitions for custody rights are allowed under a more narrow set of circumstances where the child is not in the physical custody of a parent. Grandparents who want to apply for parental responsibilities have to show that a parent who was their child is deceased and that at the time of the death:

  • The surviving parent was missing from the marital home without the deceased spouse knowing his or her whereabouts;
  • The surviving parent was in prison; or
  • The surviving parent was convicted of certain crimes.

In deciding whether to award custodial or visitation rights to the grandparents, the courts do look at the relationship the grandparents and grandchildren had beforehand. If there was a strong relationship, and the child lived with the grandparents without suffering any harm, it can make a more compelling case for visitation.

Call Us for a Consultation

Reconciliation does not always work in a situation where parents and grandparents do not get along and the grandparents’ relationship with the grandchildren is limited. If your child’s grandparents are seeking custody or visitation rights with your children, you should consult a passionate DuPage County family law attorney to discuss your options. Contact Momkus McCluskey Roberts LLC today. As your child’s parent, you are in the best position to decide what is in your child’s best interest, and you need a lawyer who can help you fight to make the parenting decisions you need to keep your child safe.

Sources:

https://www.oyez.org/cases/1999/99-138

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

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keeping children from a parent, DuPage County Family Law AttorneysEven with a court ordered parenting plan in place, divorced or separated parents sometimes find that co-parenting is not easy, and can still result in many disagreements. Some parents find that because the other parent dislikes them, they do everything in their power to make parenting time (visitation) and other custody arrangements extremely difficult.

However, if a parent has a legitimate reason to worry about the safety of a child, then he or she may have questions on when that parent can legally keep his or her children away from the other parent. There are very few situations in which a parent can be allowed to go against a court order with regards to parenting time.

Illinois law allows parenting time to be granted to parents unless a court finds that a parent would cause physical, mental, moral, or emotional harm to the child if granted either custody or parenting time. The key to this is that the court must make this determination, not the other parent. Therefore, if the parent has any information or evidence that a court can use to make its determination, the parent should present it as soon as possible.

Once entered, orders for parenting responsibilities cannot be changed for a period of time, unless it can be shown that the current situation endangers the child physically, mentally, or emotionally. If a parent believes a child is being abused by the other parent, or the other parent is putting the children in danger by his or her actions, it does not mean the parent has no legal remedies. The first thing a parent can do is see an experienced family law attorney to file for a modification of the parenting plan, or see if it is possible to file for an order granting emergency custody, which would take or keep the children away from the dangerous or abusive situation.

In most cases, the evidence of an abusive or dangerous situation has to be immediate for an emergency order, and cannot be based on past behavior by the parent, especially if the behavior was not directed towards the children. For example, a husband who was abusive to his wife, but never harmed their children, may be granted parental responsibilities of the children. But if a parent is picking up the children for visitation while intoxicated, this may be enough for a modification of the parenting plan.

Get Legal Help

If you are considering filing for divorce, and have questions about parental responsibilities and what kind of rights your spouse may get, you should consult with an experienced family law attorney as soon as possible. Keeping your children away from the other parent when they have been legally allowed to see them can result in legal problems for you. Contact the experienced DuPage County family law attorneys at Momkus McCluskey Roberts LLC in DuPage County, Illinois, today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

https://scholar.google.com/scholar_case?case=4333655371401376178&q=modification+of+child+custody+and+abuse&hl=en&as_sdt=4,14&as_ylo=2017

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FEIN for my business, DuPage County Business Law AttorneyBusinesses can be formed and registered in many different ways, and they have to meet certain legal requirements depending on the method of formation and registration the owners choose. Some businesses for example, need to have a number referred to as a FEIN to file taxes and meet other regulatory needs, while others do not.

A FEIN is a Federal Employer Identification Number, and is sometimes referred to simply as an EIN. This number serves almost like a person’s Social Security number, except it is associated with a business entity. Most businesses need an EIN, except perhaps sole proprietors who can use their Social Security numbers in place of an EIN for many of their business transactions.

However, if you are a sole proprietor, having an EIN can help you keep your own personal information secure. There are transactions during the course of your business where you would be required to provide a tax identification number, and the EIN would meet this requirement without you having to give out your social security number. With the possibility of identity theft, the EIN can be a good security measure.

The IRS states that you will need an EIN, even as a sole proprietor, if you meet any of the following criteria:

  • You have employees;
  • You operate your business as a corporation or a partnership;
  • You file any of these tax returns: Employment, Excise, or Alcohol, Tobacco and Firearms;
  • You withhold taxes on income, other than wages, paid to a non-resident alien;
  • You have a Keogh retirement plan; or,
  • You are involved with certain organizations.

If you decide you need an EIN for your business, applying for one is not difficult and can be accomplished in a fairly short amount of time if you have all the information readily available. You can apply for an EIN by mail, fax, telephone, or online via the IRS website. There is no charge to apply for an EIN.

When your business is assigned an EIN, it becomes the permanent number associated with that business and is not given to other businesses, even when you do not use it. The IRS provides ways for business owners who no longer wish to use the EIN associated with their business to close out their IRS account on that EIN. You can use this option if you apply for an EIN and decide you do not need it, never use it, or your business closes down before you get a chance to use it.

Contact an Experienced Business Attorney

Whether you are just starting out in your new business or have an established operation in need of some legal guidance, contact us at Momkus McCluskey Roberts, LLC for more information about how our experienced DuPage County business law attorneys can help you.

Source:

https://www.irs.gov/businesses/small-businesses-self-employed/canceling-an-ein-closing-your-account

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distribution of assets, DuPage County Estate Planning AttorneysParents of young children are often advised to develop a will and to set up a trust to ensure their children will be cared for if the parents should pass away while the children are minors. Trusts are usually recommended due to the complications of leaving property directly to minors.

There are several different kinds of trusts, and the parents can set restrictions on how assets in a trust are to be distributed or used for the children’s care.

One of the best aspects of a trust established under Illinois law is that any assets passed to an heir in a trust do not need to go through probate before being legally transferred to the heir. Probate is a legal process through which a person’s estate is managed, settled, and distributed after one’s death in accordance with Illinois law.

Since the probate process can take years, a trust offers a significant advantage. Once a trust is set up, the trust, through a trustee, holds title to the trust property for the beneficiary of the trust. The person setting up the trust can also be the trustee.

Living trusts are popular for estate planning. They are set up while the grantor (the person setting up the trust) is still alive, and can be designated as living revocable trusts or living irrevocable trusts. With a living irrevocable trust, the terms of the trust are set when the trust is set up and cannot be changed later on. However, with a living revocable trust, the grantor can make changes, or even get rid of the trust, at any point before his death.

Parents can also set up testamentary trusts, which spring into existence after the parents’ death, through their will. In a testamentary trust, the parents can leave all property to the trust, for the benefit of the children.  The trustee for the children’s trust can also be named in the will, and an alternate trustee provided as well. Choosing a trustee is an important aspect of establishing a trust, and should not be taken lightly.

With all trusts, the parents can include specific instructions for how assets are to be distributed to their children, for example, requiring the trust assets to be distributed only when the child graduates from college. Parents should consider that sometimes a trust distribution that gives all children an equal amount, regardless of age or need, may not be in all the children’s best interests.

Contact Us for Legal Advice

There are various factors that parents need to consider when estate planning, in order to account for their children, especially if the children have special needs. To discuss how you can use a trust to protect your children and ensure they are well taken care of if you are no longer around to do so, contact the passionate DuPage County estate planning attorneys at Momkus McCluskey Roberts LLC for a consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2117&ChapterID=61

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60

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business owner liability, DuPage County Business Law AttorneyReceiving notification that your business has been named as a defendant in a lawsuit can cause alarm and stress, which only gets worse when you realize that you are also named as a defendant in a personal capacity. Some business owners rely on the fact that even though their business may be sued, they would not be personally responsible for a judgment against the business. Depending on how a business is structured, however, this could be far from the truth.

Businesses that are set up as corporations and limited liability companies are normally created in such a way that the businesses stand apart from the owners as their own legal entities. If a contractual dispute arises, or a person is hurt in one of the business locations, then the business may be prepared to take the loss of having to pay a judgment or settlement for the case. This kind of cost can usually be accounted for through an insurance policy.

Businesses that are sole proprietors are not organized separately, and are generally not required to register at all. When a person owns such a business, a lawsuit against the business becomes a lawsuit against the person. This could result in the person’s personal assets being claimed in order to pay creditors.

Even the most careful planning to set up a business apart from business owners in terms of liability can be undone if the business owners take certain steps, or are careless in how they conduct business. Business owners protected through a limited liability company can be held liable for business debts if they personally guarantee the debts. Business owners can also be required to pay business debts if a court finds reason to pierce what is known as the corporate veil.

The corporate veil is a term used to describe the separation of the business owners’ legal identity from that of the business. Therefore, when a court pierces the corporate veil, it allows a plaintiff to seek compensation from the business owners for what would otherwise have been business debts. Under Illinois law, the corporate veil can be pierced in two situations:

  1. There is such a unity of interest and ownership that the separate personalities of the corporation and its owners is nonexistent; and
  2. Circumstances are such that honoring the legal distinction of a business’ separate legal identity would promote injustice or inequitable circumstances.

In contractual disputes, courts may require an additional finding of fraud in order to pierce the corporate veil.

In looking to see if these two factors are met in a case, the court can look at issues such as how the business was funded, failure of a corporation to follow corporate formalities, failure to keep business records, failure to pay out dividends, and a co-mingling of business and personal funds.

Contact an Experienced Business Law Attorney

Having an experienced business attorney evaluate the practices you as a business owner are engaged in when operating your business can be a good way to gauge if you are taking the proper steps to ensure that your corporate veil cannot be pierced. To speak with an experienced DuPage County business law attorney, contact us at Momkus McCluskey Roberts, LLC.

Source:

https://scholar.google.com/scholar_case?case=6723780528314964502&q=pierce+the+corporate+veil&hl=en&as_sdt=4,14&as_ylo=2016

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