Terminating Parent Rights While in Prison

By | Child Custody | No Comments

One of the ways a parent’s rights may be terminated is when the parent of a child is incarcerated and either:

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. The period of time begins on the date that the parent enters into incarceration;

2. The incarcerated parent has been determined by the court to be a violent career criminal or a sexual predator or has been convicted of first degree or second degree murder, a sexual battery that constitutes a capital, life, or first degree felony; or

3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and terminating parental rights of the incarcerated parent is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior.
e. Any other factor the court deems relevant.

Call us today for a free consultation at 786-454-2411.

Estates if one spouse isnt a US citizen.

By | Family Law | No Comments

Estate if one spouse is a non-citizen.

An unlimited marital deduction is generally available for transfers of property to a spouse if that spouse is a US citizen. That means that spouses who are US citizens can transfer property to each other either during life or at death without any estate or gift tax liability. However, that same unlimited marital deduction isn’t available for transfers of property to a non-citizen spouse.

If one spouse is a US citizen and the other spouse is not, it’s important to take into account special rules that apply to transfers to and from a non-citizen spouses to avoid the estate and gift tax or the inadvertent use of the US citizen spouse’s estate and gift tax lifetime exclusion amount.

The US transfer tax rules applicable to gifts made during life and at death depend on whether the transferor and transferee are:
• US citizens.
• US resident non-citizens (resident aliens).
• Non-residents and non-citizens of the US.
Keep in mind that there is a difference between a non-citizen’s residence for transfer tax purposes and the determination of residence for income tax purposes.
Residence for Income Tax Purposes

Residence is determined for income tax purposes as follows:

• Permanent residence as a green card holder.
• Chooses to be treated as a permanent resident.
• Has a substantial presence in the US in a given year.
Residence for Transfer Tax Purposes

For the transfer tax, residence means domicile. A person acquires domicile in a place by living there, for even a brief period of time, with the intent to stay, or not leave. There is big difference between the application of the transfer tax rules depending on each spouse’s citizenship and residency status, and whether the transferor spouse makes a transfer during life or at death.

Get informed by calling The Miami Law Firm today at 897.454.2411.

Probate Estate Miami

By | Probate Law | No Comments

Probate:  Have you been given notice?

Sometimes our clients think about whether they in fact received proper notice of the administration of he will and probate estate in Miami.  Here are a few general rules about probate estate proceedings and how notice must be given to all people involved (keep in mind that in some cases there are special rules which must be adhered to.  You can give notice via:

You can mail a copy thereof at least 14 days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at his office or place of residence, if known;

By delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or

If the address, or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing at least once a week for three consecutive weeks, a copy thereof in a newspaper having general circulation in the county where the hearing is to be held

The court for good cause shown may provide for a different method or time of giving notice for any hearing.  Call us today for a free consultation:  786-454-2411.

Child Custody Basics

By | Child Custody | No Comments

There are several possible ways to divide the child’s time among the parents. The type of child custody to choose depends on the following criteria:

  • Age
  • Attitude
  • Temperament of the child
  • Length of each period of custody
  • Disruptive influences created by alternating custody
  • Geographical distance the child must travel
  • Parents’ attitudes toward each other.

The court will traditionally look out for the best interest of the child.  In the time sharing arrangement, the child will spend a block of time with each parent. If one parent has custody in his or her residence, the other will generally have access similar to visitation, so that you can see your child even though one parent has sole custody.

     What happens in joint custody if both parents are in different states?

Some parents split a year—six months each. More common however is that the parents split custody around the school year, 9 months with one and 3 months with the other.

What about alternating schools in child custody?

Some courts shy away from granting this because they believe that a child knowing that he will alternate schools will be less likely to establish strong friendships with other children, to participate in school activities and sports, and to gain a meaningful and useful education.

With younger children, such as those under 6 years of age, alternating nights, weeks or months may not be in the best interest of the child.

Want to know more?  Call for a free consultation today.  786.454.2411.

Dog Bite Statute Florida

By | Dogs | No Comments

767.04 Dog owner’s liability for damages to persons bitten.—

The general rule is that any dog that bites someone in a public place or is lawfully in a private place is liable for damages caused by the dog. The dog doesnt have to be a vicious animal, and the owner doesnt even have to know it was vicious to be liable. In addition, if the dog owner is a tenant and the landlord had some control over the dog being there, the landlord may be liable too. Watch for “bad dog” warning signs though, that will be the dog owner’s defense.