In this weekly series, FNC Legal Analyst Lis Wiehl offers solutions to the tough problems single gals face.
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Even Sperm Donors Must Pay Child Support!
Before you send out your Christmas gifts and cards this holiday season, think twice of the things you write to the recipient! You may be legally liable for what you say in your holiday greetings.
And, when you send a child money, gifts, cards, or letters, DO NOT sign "Dad" or "Daddy," unless you intend to hold yourself out as the child’s father, and vice versa for women too! Let me explain.
In Long Island, a doctor donated his sperm to a female resident back in the late 1980s when he learned that the resident and her female partner wanted to have a baby. The doctor, married at the time, agreed he would not have any rights or benefits in rearing the child, but the oral agreement was never put in writing. The doctor did take the unusual step, however, of allowing his name to appear on the child’s birth certificate, because he thought it was in the child’s “best interest to have an identity,” according to court documents. Now, 18 years later, the doctor may be liable for child support, as the teenage boy gets ready for college. How could that be? Wasn’t the doctor simply helping out a colleague? There’s more to the story.
After the boy's birth in 1989, the doctor had regular contact with the child for several years, sending gifts, money, cards and letters signed "Dad" or "Daddy." When the mother, her partner and the child moved to Oregon in 1993, however, the regular contact stopped; the doctor’s contact with the child consisted of only seven phone calls and one brief meeting over the past 15 years. That correspondence, coupled with an affidavit from the child stating that he "has never known anyone other than [the doctor] to be his father," is enough for a parental relationship, according to Jeffrey Herbst, a county attorney who represented the mother in the lawsuit.
Court rulings over parental rights from artificial insemination have varied among states, but the general rule under family law is that a verbal agreement cannot void the legal status of fatherhood. When it comes to artificial insemination by a known donor, the best protections are to have everything in writing and "do your homework," said reproductive lawyer Melissa Brisman of Park Ridge, N.J.
Unfortunately, not every one, including lawyers themselves, can foresee all the legal ramifications that could surface 18 years down the road. Without more concrete evidence to prove that the doctor is released from financial responsibilities, he would have to pay child support for holding himself out as the child’s father. According to family law expert Robert Smith, "It's sort of like being pregnant. You either are or you're not. If it was his sperm that created the child, then he's the parent."
Currently, about two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. However, given that not every state has adopted such law, it is crucial for those considering artificial insemination to have a signed contract that clarifies any child support issues ahead of time.
Bottom Line: Get any promises or agreements in writing before the child is born!
• $PERM WAIL BY DONOR
No More Expiration Date on Gift Cards in Most States
The holiday season is right around the corner and shoppers are wrecking their brains trying to come up with creative presents. What is the “right” gift for that special someone? Or for that person who has everything?
Instead of jumping through hurdles to reach an answer, many of us have taken the option of letting the recipients choose what they want by giving gift cards. Gift certificates, particularly gift cards, have become incredibly popular in recent years. In 2003, in the United State alone, gift card sales brought in an impressive $40-$45 billion dollars — that was a tenfold increase in just a decade!
While the gift card donor’s mind may be at ease once they’ve selected to give one of these cards out, the recipient’s mind is not! On top of choosing how to spend their virtual cash, recipients have to worry about the unwanted extras like expiration dates and possible service fee associated with these types of gifts. According to Dan Horne, a marketing professor at Providence Rhode Island College, the value of unredeemed cards in 2003 nationwide added up to roughly $2 billion!
Luckily, many gift card recipients this year will be free from such concern, since several states have now adopted or are in the process of adopting laws that ban expiration dates and service fees on gift cards and certificates.
You might be asking, so what happened to the billions of dollars unredeemed in the past? Where did that money go? Even though you might not think you’ve abandoned your gift card, it was most likely declared as unclaimed property. Thus, the money that you could have spent in the past went right to your state’s piggy bank!
Every state has an act regarding unclaimed property, detailing the way in which dormant bank accounts, unclaimed safety-deposit boxes and uncashed checks go into the hands of the state; these laws are called escheat or unclaimed property laws. In recent years, the popularity of gift cards has made state treasurers re-examine such state escheat laws regarding gift cards because of the huge revenue involved.
Currently, there is a lack of standardization in the escheat laws governing gift certificates among states. Massachusetts, for example, requires that all gift certificates to not expire for seven years from the date of purchase. Washington’s new law, by contrast, may be most consumer friendly in the nation because it not only bans expiration dates and service fees, but it also allows gift card recipients to cash out cards when there’s less than $5 remaining.
So ladies, if you want to be a smart holiday consumer this year, keep three simple tips in mind: check for possible expiration dates and fees on your gift card, save all receipts, and of course, use it before you lose it!
Online Shopping: Thumbs Up or Thumbs Down?
We’ve all heard of eBay and lots of us will spend hours of our holiday shopping on this online marketplace. With 248 million registered users worldwide and approximately 102 million items for sale at any one time, eBay has certainly provided great convenience for consumers to reach sellers within a few clicks away. We love the idea of online shopping for this particular reason, but there are a few things that we need to look out for, one being the counterfeit items of luxury brands.
Indeed, lawyers for Tiffany and Company filed a lawsuit against eBay back in 2004, claiming that the online auction house has become a distribution network that enabled the trading of counterfeit Tiffany items. Tiffany employees, with the expertise of identifying fake Tiffany merchandise, concluded that 73 percent of the 186 pieces on eBay were counterfeit. If Tiffany wins its case, eBay will have to alter its procedures to prevent the sale of counterfeit goods, which would be difficult and extremely expensive for the company, not to mention the possibility of other lawsuits that would likely follow.
Hani Durzy, an eBay spokesman, said eBay had already gone above and beyond what the law requires them to do to keep counterfeits off the site. “As a marketplace, we never take possession of any of the goods sold on the site, so it would be impossible for us to determine the authenticity of an item,” Mr. Durzy said.
However, before Judge Sullivan in the Manhattan Federal District Court, the attorney for Tiffany argued that eBay directly advertised the sale of Tiffany jewelry on its home page, and “because eBay profits from the sales generated by these and other actions,” Tiffany considers its actions direct copyright infringement.
As Geoffrey Potter, chairman of the anti-counterfeiting practice at Kramer Levin Naftalis & Frankel, a New York law firm, said, “The fact that eBay has chosen to set up its business in a manner that makes it extremely difficult for it to monitor the merchandise that is sold at its auctions is not a defense.” If the judge finds that eBay had the same duty as flea markets and traditional retail stores to not sell counterfeit products, “eBay will likely have to either stop auctioning famous luxury products or radically alter the way it does business so that it can certify the authenticity of those products before they are sold,” said Mr. Potter.
So what about all of us holiday shoppers who can’t delay shopping until the judge hands down a decision? Well, for now, I’d say just dodge the online sale of items that are potentially counterfeits like you do with Manhattan's street vendors in Chinatown and Times Square selling fake designer handbags. As the biggest online marketplace, eBay may be the hub of counterfeit products, but similar problems could just as easily occur on any online shopping sites. Therefore, unless eBay establishes new protective measures to prevent counterfeits from its auctions, we’ll have to start going after the individual sellers who took advantage of eBay’s easy access in selling their counterfeit items online.
To make sure you don’t get your loved one a knock-off, unfortunately, you can’t just trust every one these days, not even eBay! So, be a smart consumer this holiday season by purchasing from certified websites or if you do choose to go the eBay route, make sure you request additional proof that the “bling” you’re purchasing is real!
• Tiffany and eBay in Fight Over Fakes
Money Talks, So Don’t Bother Hiding It From Your Wife!
Let’s say, hypothetically, that you won a $19 million jackpot TODAY ... who would be the first person you’d tell? Would it be your husband? Your wife? Parents? Best friend?
Most of us would probably share the news with our significant other immediately, however, that wasn’t the case for Arnim Ramdass, an American Airlines mechanic at Miami International Airport, who kept his big prize a secret from his wife.
Donna Campbell, Ramdass’ wife, first became suspicious that her husband was hiding something from her when Ramdass began turning the television off all the time and then disconnected their phone line. Campbell knew her husband was a habitual lottery player, but the ah-ha! moment came only after Campbell went through the mail at their Miramar house and saw a postcard: Congratulations on the purchase of your new home!
What would you do at this moment if you were Campbell? Campbell wanted to find out the truth, so like any great detective would, she Googled, “Randass and lotto.” The first search hit was a Florida Lottery press release about a pool of 17 airline mechanics who won a $19 million jackpot this summer. Not knowing whether to rejoice or ring his neck upon hearing the news, Campbell confronted Randass. Ramdass explained that he bought the ticket for his daughter Janelle, from another marriage, who lives in Orlando, but of course, that story didn’t fly with Campbell. Campbell said, ''He had been buying those tickets for years, and he never, ever said one of them was for her.”
The lucky group of mechanics opted for the lump-sum payment of $10.2 million, meaning each of the 17 winners would receive about $600,000 before taxes. Campbell is now suing her husband for her share of the jackpot, but Ramdass is nowhere to be found. Process servers have not been able to track down her hubby to hand him the lawsuit papers. His co-workers say he has taken a leave of absence from work and he has not shown up at the couple's home in Miramar's Silver Lakes neighborhood.
Bruce Baldwin, Campbell’s attorney said, “Here’s a guy who, for years, has spent martial money on the lottery and at casinos, and he’s always lost. Now he finally wins and he’s trying to keep it from his wife. That’s pretty low.”
Indeed, under family and marriage law, both spouses become a fiduciary to the other once they are married. The law imposes on each spouse the highest duty of good faith and fair dealing with the other spouse. Additionally, neither spouse can take any unfair advantage of the other. Included in this confidential, fiduciary relationship is the idea that property gained during the marriage is joint property. Ramdass spent their joint, martial money on buying the lottery, his wife should, in turn, be able to use the winnings to help pay bills. So, unless Ramdass can prove that he bought the lottery ticket out of his private money, such that the money was in a separate private account before their marriage, it’s likely that he’ll have to split the winnings with his wife.
Furthermore, not only has Ramdass breached his spousal fiduciary duties to his wife by not disclosing the extra income, he could face more serious charges for skipping town. So you shady hubbies out there thinking of skipping town, word to the wise, no way jose! You’ll still have to pay!
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.