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The Legal Considerations of Having Kids

Posted by Anonymous

Having kids changes everything. Whether you are expecting your first infant or adopting an older child, the addition to your family likely means a substantial change in your day to day activities as well as your legal affairs.

It is important that you take the necessary steps to ensure the stability of your family and of your children's future. For some families that may mean taking legal steps to establish paternity or making sure that an adoption meets all of the legal requirements so that it is indisputable. Some families may also need to consider child custody and child support arrangements if the parents do not live together. When a child reaches the mandatory school attendance age, the family must consider education law issues such as completing all the required permission forms and consents for public school or establishing a home school education program in accordance with state law. All families must also think about the future and consider what will happen if the child is orphaned. Typically, that means creating or updating a Last Will and Testament, changing life insurance beneficiaries and naming a guardian to take care of your minor children.

If you are a parent or are about to become a parent then it is important to carefully consider whether any of the following legal issues apply to your family and to take the necessary legal steps to protect your family:

  • Establish Legal Paternity: a child who is born to a married woman is presumed to be the child of the woman's husband. If the child is not the offspring of a married couple then either parent can initiate paternity proceedings according to the procedures set forth in state law. Many states will accept an Affidavit of Paternity or Affidavit of Parentage, if neither parent contests the proceedings. If the mother or alleged father contest the paternity then, in most states, a judicial proceeding must be brought and DNA testing must occur. It is important to establish legal paternity so that the child's father is legally responsible for the child's support and for personal reasons.


If the issue of paternity is not settled at birth then the child's parents may wish to have the child's original birth certificate amended when the matter is settled. The procedures for amending a birth certificate typically include providing an Affidavit or other evidence of paternity. The specific procedures can usually be obtained from the state Department of Health in the state in which the child was born.


  • Complete a Legal Adoption: many families have children through adoption. In order to make sure that the adoption has the certainty of providing your new child a secure place in your family, it is important to make sure that you comply with all adoption laws. The documents necessary for the adoption will vary depending on the child's location prior to the adoption. If you are adopting a child from out of state then you will need a legal agreement consistent with the Interstate Compact on the Adoption of Children. If you are adopting a child from another country then you will need to complete the documents necessary to make the child a U.S. citizen and to allow the child to travel back to the United States with you. You will also have to comply with the laws of the country from which you are adopting the child. Any time an adoption occurs, be it domestic or international, the adoptive parents must obtain an Adoption Decree from a court. Most jurisdictions order an amended birth certificate to be issued once an adoption if finalized.


  • Establish an Enforceable Child Custody Arrangement: If you and the child's other parent do not live together then it is important to establish an enforceable child custody agreement. Even if both parties agree on the child custody arrangement it is important to have the agreement approved by a court so that it is enforceable should either party breach it in the future.


  • Establish an Enforceable Child Support Agreement: as with a child custody arrangement, it is important that parents who do not live together create a legally enforceable child support agreement that has been approved by a court so that both parties have the protection of a legal document should either party breach the agreement in the future.

Additionally, all parents should consider the following issues and act in the best interest of their children:

  • How the Child will be Educated: each state has a compulsory school age by which children must begin their formal education. Parents may decide to homeschool their children but must follow the homeschooling requirements set forth in state law and submit the required documentation to their local school district. Parents may also decide to enroll their children in public school by completing the documentation required by their local school district. Typically, public schools will require a birth certificate, a health from completed by the child's doctor, a record of immunizations and previous transcripts if the child has attended school elsewhere. Parents who do not enroll their child in public school, private school or home school may be guilty of parental neglect and legal proceedings can be brought against the parent.


  • Providing Permission and Consent to a Local School District: school districts often request consent or parental permission to take children on field trips and to administer medication. Parents are typically provided with a permission form for such occurrences. It is important to understand what you are signing. In many cases the school district is asking for your authorization so that the district is not liable for any accidents that happen when they administer medication or go on a trip. If you refuse to sign the forms then the school may not provide medication to your child or allow your child to go on the trip. If you do sign the forms then the school may not be liable for accidents that result if it was following the terms of your agreement. However, the school may be legally responsible if personnel acted with the deliberate intent to hurt a student or if personnel were negligent in their behavior. For example, you may have legal recourse if the school administers the wrong medication to your child or if the school loses your child at an off campus site even if you have signed a permission form.

  • Updating a Last Will and Testament: having a child may give you reason to update your will to make sure that your child is provided for both physically and financially. Your will provides you with the opportunity to describe how you want your assets distributed after your death and with the opportunity to name a guardian for your minor children. In order to be enforceable, the will must be executed according to the requirements of state law which typically means that it must be in writing, signed of your own free will and witnessed by two impartial witnesses. If you do not create a legally enforceable will then a court will decide how to distribute your assets according to the intestate laws of your state and a judge will appoint a guardian for your children.


  • Naming a Guardian: it is important to designate a legal guardian for your minor children in case you die before the children become adults. Commonly, this designation is made in a Last Will and Testament so that a parent can be confident that it will later be enforced in a court of law. It is important to make sure that your will is properly executed so that your choice of guardian will be honored. In the absence of a legally enforceable document, a judge will name a guardian for your children and it may be someone who you do not want raising your children.


  • Life Insurance: you may obtain life insurance or change life insurance beneficiaries after you have a child in order to make sure that your children will be financially provided for after your death. If you are leaving the proceeds of your life insurance policy to minor children then it is often advisable to create a trust for those assets until your children reach the age of majority. The trustee may have discretion to use the trust funds for the welfare and maintenance of your children. If a trust is note created then the court may require the life insurance company to hold the proceeds until the children reach the age of majority. Keep in mind that some states require you to leave your life insurance funds to your spouse unless the spouse signs a written waiver. If the children are the offspring of both you and your spouse then it may make sense to have your spouse as the beneficiary.


There is a lot to think about when you become a parent. However, if you consistently act in the best interest of your children then the decisions described above become easier to make. If you need help making sure that your decisions are enforceable then you should use the documents described above and consult an attorney in your state, if necessary.


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