Can my Child Choose Which Parent to Live With?

In divorce or child custody cases, often a judge must decide which parent shall have custody of minor children. I often have clients assert that since their child is a certain age, he or she can chose where to live. There seems to be a widely held belief in some specific age at which the child gets to make the choice regardless of what the judge thinks.

This is simply not true. There is no particular age when a child’s desire is honored as the deciding factor in determining which parent shall have custody.

When making child custody decisions, Kentucky law states that the judge must do what is in the best interest of the child. There are various factors the judge will consider in making this determination. The opinion of the child is one of the factors. But it is one of many, not the only one.

This does not mean a child’s opinion never carries any weight, as there are cases in which a child’s testimony is a very important factor. Generally, the older and more mature a child is, the greater the importance of his or her testimony. For example, a judge will likely take the opinion of a 16 year more seriously than the opinion of an 8 year old.

Even if the judge does listen to the child’s testimony, the child’s reasoning will be scrutinized. In fact, the best interest of a child could very well be the opposite of what the child desires. For instance, living with Dad because he “lets me play video games and doesn’t make me do homework like Mom does” will probably not sway the judge toward the father as the child intended.

In conclusion, the opinion of the child is one of many factors a judge must consider when making a child custody determination. Generally, the testimony of the child carries more weight if the child is older and mature. There is not a certain age at which the child gets to decide regardless of what the judge thinks. How much weight to give a child’s testimony is determined by the judge on a case by case basis.

Divorce and child custody cases are difficult. If you find yourself facing either situation you should contact an attorney.

 

 

Dustin

Dustin joined the SBW&P team in 2010, coming to us from one of the oldest firms in Cincinnati. He earned his undergraduate degree from Bellarmine University, summa cum laude, and his law degree from the Salmon P. Chase College of Law at Northern Kentucky University, where he graduated cum laude. Dustin’s law practice includes personal injury law, medical malpractice law, business law including corporations, LLCs and business planning, real estate law, probate law, estate planning, employment law, and family law.

Answers to Kentucky Employee’s Most Frequently Asked Questions

Young businessman holding white card with a question mark on itBy: Terry Bennett

Are you unsure of your rights as an employee in Kentucky? Here are answers to the most frequently asked questions concerning Kentucky employment:

Q : What is the minimum wage in Kentucky?
A : The minimum wage in Kentucky is $7.25 per hour.

Q: Can an employer require that I work overtime?
A: Yes.

Q: What must an employer pay me for overtime?
A: Time and one-half must be paid for the hours worked in excess of 40 hours per workweek.

Q: May an employer pay “comp time” instead of overtime?
A: Comp time may not be paid by an employer or given to an employee who is subject to the overtime law.

Q: What defines a “full-time employee”?
A: Kentucky law does not define full-time or part-time employment. Employers are free to define these terms as they choose.

Q: Must an employer give a paid rest period?
A: An employee is entitled to a paid rest period of at least 10 minutes during each four hours of work.

Q: Must my employer give me a meal break and do they have to pay for the meal break?
A: An employee is entitled to a reasonable period for a meal no sooner than the 3rd or later than the 5th hour of their work shift, unless the employer and employee have mutually agreed to some other time period. The meal period does not have to be paid by the employer.

Q: May my employer require that I work more than 8 hours per day?
A: There is no limitation on the number of hours that your employer can require you to work in a day.

Q: Must my employer pay my vacation pay or sick leave upon termination of employment?
A: Whether you are paid for unused vacation or sick leave upon termination of employment depends on the policy and practice of your employer. Kentucky labor law does not specifically require that the employer pay for unused vacation or sick days upon termination of employment.

If you have any questions about employment rights in Kentucky, don’t hesitate to contact an attorney. They attorneys at Skeeters, Bennett, Wilson & Pike want to make sure your rights as an employee are honored.

 

Attorney Terry BennettTerry joined the practice in 1974. His areas of focus include personal injury law, real estate law, probate law, estate planning, business law, corporations, and adoptions. He is admitted to practice before the United States Supreme Court, United States Court of Appeals 6th Circuit, United States District Court Western District of Kentucky, United States Court of Military Appeals, and all Kentucky courts.

A Hardin County native and former Army office in the Judge Advocate General (JAG) Corps, Terry graduated from William and Mary in Virginia with an undergraduate degree in government. He received his Juris Doctorate from Wake Forest Law School in Winston Salem, North Carolina, where he graduated with honors.

 

The Danger of Misclassifying Workers

By: Terry Bennett

Many employers misclassify workers as independent contractors. The reasons are obvious: no duty to withhold taxes, no duty to pay Social Security or Medicare, no duty to provide workers’ compensation coverage, no duty to pay unemployment and no duty to provide any employee benefits. But the cost of misclassification can be high.
filing-taxes-independent-contractor

There can be personal and individual liability for the employer’s failure to pay withholding taxes for employees that are misclassified. The IRS looks at behavior control, financial control, and the type of relationship between the employer and the independent contractor. Many employers are at risk for the detection of misclassified workers. The IRS is focusing its resources on auditing employers to determine if they are properly classifying their workers.

Misclassified workers are often denied access to critical benefits and protections such as family and medical leave, overtime, minimum wage and unemployment insurance. Not only are employees cheated, but it also generates substantial losses to the treasury and the Social Security and Medicare funds, as well as state unemployment insurance and workers compensation funds.

At Skeeters, Bennett, Wilson & Pike, we can help businesses with their classification of workers, whether it relates to independent contractors, part-time/full-time employees, or the employer’s responsibility concerning the many Federal and State requirements as it relates to employees.

 

 

Attorney Terry BennettTerry joined the practice in 1974. His areas of focus include personal injury law, real estate law, probate law, estate planning, business law, corporations, and adoptions. He is admitted to practice before the United States Supreme Court, United States Court of Appeals 6th Circuit, United States District Court Western District of Kentucky, United States Court of Military Appeals, and all Kentucky courts.

A Hardin County native and former Army office in the Judge Advocate General (JAG) Corps, Terry graduated from William and Mary in Virginia with an undergraduate degree in government. He received his Juris Doctorate from Wake Forest Law School in Winston Salem, North Carolina, where he graduated with honors.

 

Life’s Train

Enjoy this personal commentary from our very own, Terry Bennett. The team at Skeeter’s, Bennett, Wilson & Pike is blessed to have a seat on Terry’s train of life.

By: Terry Bennett

In the practice of law I see a great deal of tragedy. In handling estates I see individuals whose lives are cut short because of some disease or accident. In handling automobile accidents I see individuals of all ages losing their lives or being seriously injured. The grief that comes from these situations is very hard to bear for the relatives, friends and neighbors of the deceased or injured.

We boarded a train as soon as we were born. The first people we saw 6985203242_a0403f0604_zon that train were our parents. Along the way of life other individuals boarded that train, such as brothers, sisters, children, friends, and other significant people.

Unfortunately, the train makes stops along the way. At some station in life our parents will step down and may leave us on the train alone. At other times, even a child or grandchild may leave the train before we get off. As these individuals step down off of the train into a station, they leave a vacuum in our life. Others will leave the train and we do not even realize they have left.

The train of life is full of joy, sorrow, grief, happiness and all sorts of other human emotions that we experience along the railway of life.

We never know at which station we ourselves will step down off the train. It is important that we live our lives with love, forgiveness, hope, faith and strength, and that we offer these to the other passengers on the train. When we finally step down and leave our seat empty, we should leave behind beautiful memories for those who are still on the train of life.

I wish each of you a joyful journey on this train of life and ask you to live every day as if it is your last day, because, as I have witnessed many times, it may be. Thank God for your journey of life and try to make someone else’s day brighter each day.

 

 

Attorney Terry Bennett

Terry joined the practice in 1974. His areas of focus include personal injury law, real estate law, probate law, estate planning, business law, corporations, and adoptions. He is admitted to practice before the United States Supreme Court, United States Court of Appeals 6th Circuit, United States District Court Western District of Kentucky, United States Court of Military Appeals, and all Kentucky courts.

A Hardin County native and former Army office in the Judge Advocate General (JAG) Corps, Terry graduated from William and Mary in Virginia with an undergraduate degree in government. He received his Juris Doctorate from Wake Forest Law School in Winston Salem, North Carolina, where he graduated with honors.

When do you Pay Gift Taxes?

By: Terry Bennett

Many parents and grandparents give their children and grandchildren gifts during the year. They may give them money for a down payment on a home, to buy a car or help them out in other ways. But when are these gifts of taxable importance? The attorneys at Skeeters, Bennett, Wilson & Pike want to make sure you know the specifics of gift taxes.

For 2017, an individual can give gross gifts of $14,000 or less to anyone with no tax effect. There are no reporting requirements nor do you have to file a gift tax return. If your spouse joins in the gift, then the availabindexle deduction increases to $28,000.00.

Spouses can give an unlimited amount of money to each other under the gift tax marital deduction rules, and there are no gift tax forms to be filed or any gift tax to be paid. To be eligible for the 100 percent marital deduction concerning gifts, the spouse must be a U.S. citizen.

If a gift or the aggregate of gifts in any one-year is more than $14,000 to anyone other than a spouse, then a gift tax return must be filed. An individual’s lifetime exclusion is $5 million. Therefore, an individual can give a gift or gifts of up to $5 million during a lifetime and never have to pay gift tax. For an individual and a spouse, the amount is doubled to $10 million. The federal gift tax rates are the same as the federal estate tax rates. The rates start at 18 percent for any taxable gift between $10,000 and $20,000 and goes to the highest taxable rate, which is 40 percent, on $1 million or greater. But there is a $2,045,800 gift tax credit, which shelters $5,250,000 of taxable gifts in excess of the annual exclusion amounts.

Payments of medical expenses and tuition payments are excluded from the federal gift tax requirements. Contributors to a qualified tuition program that exceed $14,000 may treat the gift as if it had been made over a five-year period; in effect, allowing a $70,000 exclusion in any one year.

Any gift deductible for income tax purposes is deductible for gift tax purposes and does not count towards the $14,000 annual gift tax exclusion. The gift tax charitable deduction is unlimited. The gift tax charitable deduction is not limited to domestic organizations or to gifts for use within the United States.

Don’t hesitate to contact the attorneys at Skeeters, Bennett, Wilson & Pike if you have any further questions on gift tax requirements.

 

 

Attorney Terry Bennett

Terry joined the practice in 1974. His areas of focus include personal injury law, real estate law, probate law, estate planning, business law, corporations, and adoptions. He is admitted to practice before the United States Supreme Court, United States Court of Appeals 6th Circuit, United States District Court Western District of Kentucky, United States Court of Military Appeals, and all Kentucky courts.

A Hardin County native and former Army office in the Judge Advocate General (JAG) Corps, Terry graduated from William and Mary in Virginia with an undergraduate degree in government. He received his Juris Doctorate from Wake Forest Law School in Winston Salem, North Carolina, where he graduated with honors.

Do You Have a Possible Legal Issue? Don’t Wait.

By: Mike Pike

imagesI just met with a man who needed an attorney badly. The only problem is, he needed an attorney several years ago and this was our first meeting. Unfortunately, this person procrastinated and now it is too late for him to do much of anything legally. The best lawyer in the world couldn’t help him because he waited too long to seek help. He was extremely frustrated and upset and just wanted someone to listen to his problems and take them seriously.

Most law firms offer a no-obligation, free consultation, including Skeeters, Bennett, Wilson & Pike. Don’t hesitate to contact an attorney for a consultation as soon as you think you have a legal issue on your hands.

If you decide to get a consultation, be sure to bring all documents relevant to your issue. The consultation is also a great time to talk about possible costs and ask any questions you may have. Hearing a lawyer’s thoughts on your situation should offer a lot of clarity as to what your next steps should be. While you don’t have to rush into a decision immediately, don’t delay in getting a consultation. It could save you from a lot of future frustration.

 

Attorney Mike Pike

Mike currently is the attorney for the Cities of Radcliff and Vine Grove, advising elected officials, employees, and various city boards on a wide variety of legal matters. A member of the American Bar Association, the Kentucky Bar Association, Hardin County Bar, Meade County Bar, and Association of Trial Lawyers of America, Mike focuses his legal practice on cases concerning personal injury and social security, municipal law, business formation, and estates and probate law. Additionally, Mike oversees the real estate law department for the firm.

 

Entering into Binding Contracts with Minors

By: David Wilsonindex

According to our state legislators, in order to be considered an adult in the state of Kentucky, one must be 18 years of age. Therefore, under this statutory provision, persons 18 years or older are competent to enter into binding contracts. But what ability does a person under the age of 18 have to enter into a binding contract?

Ordinarily, a contract executed by a minor is enforceable by the minor but may be voided or set aside at the minor’s election. If the minor elects to affirm the contract upon obtaining the age of 18, then the contract is enforceable. In other words, the minor holds all the cards. He or she can elect to have the contract enforceable and also has the right to have the contract voided.

The privilege bestowed on a minor to set aside a contract made under the age of 18 is given for policy reasons. People under the age of 18 are essentially deemed to be disabled and are presumed to be insufficiently mature or experienced to effectively bargain with those who have obtained legal age. Any transaction that might result in a minor sustaining a financial loss is scrutinized with care.

One exception to the general rule is that a person under the age of 18 has the capacity to contract for the value of necessities. Necessities have been held to encompass food, clothing, shelter, medical attention, and even farm equipment and educational needs.

Ultimately, individuals wishing to enter into a binding and enforceable contract with a person under the age of 18 should be very cautious. There exists a distinct possibility that the contract is unenforceable. If you have any questions about entering a contract with a minor, the team at Skeeters, Bennett, Wilson & Pike suggest you contact an attorney for help.

 

Attorney David Wilson

 David Wilson has practiced with Skeeters, Bennett, Wilson, & Pike since 1989, successfully litigating cases before the Kentucky Supreme Court, the Kentucky Court of Appeals, the Federal Court for the Western District of Kentucky and the Sixth Circuit Court of Appeals. He has substantial litigation experience in personal injury, domestic relations and creditor’s rights. This includes litigation in Bankruptcy Court as well as foreclosure actions. David also practices education law and is local counsel for both the Hardin County and the Meade County Boards of Education. He also acts as counsel for Hardin County Water District No. 1, Meade County Water District, Fort Knox Federal Credit Union and Kentucky Land Company.

David is a native of Meade County. He earned a Bachelor of Science degree in Accounting from the University of Kentucky and his Juris Doctorate from the University of Kentucky College of Law.

Four Questions for Employers this New Year

The beginning of a New Year is always New year plan concepta good time to reflect on the past and look ahead to the future. If you are an employer, the attorneys at Skeeters, Bennett, Wilson & Pike suggest taking some time this month to consider your relationship with your employees and make sure you are steering clear of any practices that could lead to trouble for your business in the months ahead.

Here are four questions to consider this New Year:

  • Is our employee handbook up to date? That’s right, it’s time to dust off your employee handbook and take a look. Do the policies contained in the handbook reflect your employment practices? Does it contain everything you enforce? If not, it may be time for an update. Make sure you talk to an attorney if you think it’s time for any changes.
  • Are we compliant with the law? When is the last time you spoke with an attorney to make sure your practices are compliant with the law? If it’s been more than a year, we suggest you touch base soon. Employment law is constantly changing and has been especially confusing this past year.
  • What workplace issues did we have in 2016? Was there a employee issue that seemed to repeatedly come up this past year? Reflect on the issue(s) and ask yourself if it’s time to add a new policy or incorporate a new training to avoid the same issues in 2017.
  • Have we recently communicated our policies and expectations with our employees? The New Year is a great time to revisit your policies and expectations with your employees. Do they know what is expected of them? Are they aware of policies in place to protect them from workplace harassment, discrimination, and other issues? If you haven’t had a conversation recently, now is the time.

The attorneys at Skeeters, Bennett, Wilson & Pike know this time of the year can be busy, but don’t miss the opportunity to clean up your policies and employee issues.  As the old saying goes, an ounce of prevention is worth a pound of cure.

 

Dustin

Dustin joined the SBW&P team in 2010, coming to us from one of the oldest firms in Cincinnati. He earned his undergraduate degree from Bellarmine University, summa cum laude, and his law degree from the Salmon P. Chase College of Law at Northern Kentucky University, where he graduated cum laude. Dustin’s law practice includes personal injury law, medical malpractice law, business law including corporations, LLCs and business planning, real estate law, probate law, estate planning, employment law, and family law.

Dustin Humphrey Selected as a Rising Star

By: Terry Bennett

The attorneys at Skeeters, Bennett, Wilson & Pike are Attorney Dustin Humphreypleased to announce that, for the second year in a row, attorney Dustin Humphrey has been selected as a Super Lawyers Rising Star.  Super Lawyers is a rating service of exceptional lawyers from over 70 practice areas who have attained both a high-degree of peer recognition and professional achievement.

To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in the practice for 10 years or less, and also go through the Super Lawyers selection process. Super Lawyers selects attorneys using a patented multiphase selection process, combining peer nominations with independent research.

While up to 5 percent of lawyers in a state are named a Super Lawyer, no more than 2.5 percent are selected as Rising Stars.

Dustin will be included in the 2017 Rising Star list which will be appear in the Ohio & Kentucky Super Lawyers Magazine in January of 2017, and Kentucky Monthly magazine in the December 2016/January 2017 issue. He will also be included on the attorney directory at SuperLawyers.com.


Congratulations, Dustin!

Federal Overtime Rule Blocked – Now What?

By: Dustin Humphrey 

Last week a Judge Amos L. MazzantOffice Business people working overtime III of the U.S. District Court blocked the new Federal Overtime Rule that would have extended overtime eligibility to nearly 4 million Americans. The rule was scheduled to take effect this week on Thursday, Dec. 1. So what now for employers?

The short answer is that while this injunction is in effect, employers are not required to pay overtime in accordance with the new rules.  However, it is important to note that this injunction is temporary. The next step is for the judge to decide whether or not he is going to make his ruling permanent. If he decides to do so, then employers would not have to comply with the new regulations.

If, on the other hand, the ruling is overturned or the judge changes his mind, it is unclear whether the regulations are effective retroactively to December 1, 2016.  The ambiguity of the situation means employers should work closely with legal counsel to formulate a plan going forward.

If you have any questions involving your next steps as an employer, don’t hesitate to contact the attorneys at Skeeters, Bennett, Wilson & Pike, or go here for more information.

Source: http://www.ogletreedeakins.com/shared-content/content/blog/2016/november/what-should-employers-do-now-that-the-overtime-rule-is-blocked

 

Dustin

Dustin joined the SBW&P team in 2010, coming to us from one of the oldest firms in Cincinnati. He earned his undergraduate degree from Bellarmine University, summa cum laude, and his law degree from the Salmon P. Chase College of Law at Northern Kentucky University, where he graduated cum laude. Dustin’s law practice includes personal injury law, medical malpractice law, business law including corporations, LLCs and business planning, real estate law, probate law, estate planning, employment law, and family law.