Law Office of Brian Katonak

Law Office of Brian Katonak Go to my webpages to watch videos on certain areas of the law that I have created. Its a great way to answer questions that you may have.
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Operating as usual

11/09/2018

Today's Question: Changing a child's name.

I am often asked if it is possible to change a child's name when they are still a minor. The answer is yes, but whether or not it is easy is another questions. If both biological parents are in agreement with this, and a guardian ad litem believes it is fine, then this is no problem. In an adoption situation, the name is always changed. But what about the situation where the mother had the child and gave the child her last name. The child is now 5 and the father wants the child to have his name, and they don't agree.

In South Carolina, the courts have adopted a nine-part test in looking at this situation. The court will consider the following:
(1) the length of time that the child has used the present surname; (2) the effect of the change on the preservation and development of the child’s relationship with each parent; (3) the identification of the child as part of a family unit; (4) the wishes of the parents; (5) the stated reason for the proposed change; (6) the motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity; (7) the difficulty, harassment, or embarrassment that the child may experience when the child bears a surname different from the custodial parent; (8) the preference of the child if the child is of an age and maturity to express a meaningful preference; and (9) the degree of community respect associated with the present and proposed surname.

As you can imagine, this is a complicated test. Each situation is a case by case basis. I have generally found that if a child is over 12 and wants to change his name, the judge will generally grant it. But each case is unique, and it can be challenging.

If you have more questions of this, feel free to contact me.

Finished the training now certified mediator!
10/24/2018

Finished the training now certified mediator!

Timeline Photos
10/24/2018

Timeline Photos

08/16/2017

Today's Law Tip: Will I get arrested for missing jury duty

I got home last night and was leaving for dinner, when a car pulled in our driveway. I saw that a good friend of our was running towards the car with a look of panic in her eyes. I asked what was wrong, and she said that she was on the phone with the Sheriff's Office, and that she was about to be arrested for missing jury duty unless she sent a Western Union for $1,500.

I took the phone and talked to the caller. This man was very aggressive and hostile, and said that my friend had to pay this money or would be arrested. As I know all of the officers with the Civil Process Division, I asked who his superior was. The caller gave me a name that was not correct. I told him that he was a fraud and hung up on him.

It took me several minutes to convince my friend that she would not be arrested for missing jury duty (to be clear, she had never received a notice for jury duty). However, this man knew her name, date of birth, and husband's name, so he seemed very believable to him.

When I contacted the police department to make a report, they said that this sham occurs on a daily basis. They can't track the numbers because the con artists bounce the calls off of other phones, so they are untraceable.

To let the public know, you do have a duty to report to jury duty. However, if you do not appear, then you will be notified to come to court to explain to the judge why you did not appear. The police do not arrest you and put you in jail for this. If you do miss jury duty, they will assign you to the next term of jury duty and tell you that you can't miss this. In extreme cases where the individual continues to not appear for jury duty (which in 24 years of practice I have never seen), a judge could hold you in contempt of court if you continued to not appear.

The bottom line: if you get a call from anyone claiming to be with a governmental agency that says you have to pay a fine over the phone to avoid arrest, it is a scam and do not pay it.

05/30/2017

Today's Question: Can I adopt another adult?

Last week I got two separate calls from individuals with the same situation. Each of them is an adult, and have very close relationship with their stepfathers. Each wanted to know if it was possible for their stepfather to adopt them even though they were adults, and if so, what are the steps.

Adult adoptions are legal in South Carolina, and they are not difficult cases. The typical process is the person who wants to adopt (in this case the stepfather) files a petition to adopt the adult stepchild. The stepchild signs an affidavit that they are in agreement with this, as well as the biological mother. The biological father does not have to be notified of any of this occurring and is not a party to the case .

We then get a court hearing in about a month and go before the judge to put it on the record. When we walk out of court, the stepfather is now the legal father. The person who was adopted does not have to change their name but the birth certificate is amended to show the stepfather as the father.

If you are interested in an adult adoption, please contact my office.

01/31/2017

Today's Topic-How can I adopt a child in my care?

In the last few days, I have had several calls from individuals who have a child in their care from a third party, and they are interested in adopting that child. It may be a situation where the child is already a family member (cousin, niece, etc) or is completely unrelated.

In order to adopt a child, the parental rights of the biological parents must be terminated. This can be done voluntarily or involuntarily. In a voluntary termination, the parent(s) sign a form in the presence of another lawyer stating there intention to permanently terminate their rights. Once this form is properly executed, then it is filed with the court, and the adoption can then proceed.

An involuntarily termination occurs when the biological parents do not agree to sign the form, but there are reasons based upon the law that their rights can be terminated. The biggest two reasons (there are others) is the biological parent failing to visit with the child for more than six months, OR failing to provide financial support for more than six months.

For instance, one individual called and said the bio mother has not attempted to see the child since June, 2016. As it has been more than six months, then he would have ground to bring a termination against the mother. If the biological parents has been physically unnable to visit with the child (i.e. in prison or in the military), then this can not be used against them.

Another client told me that the parent has not provided any financial assistance for more than six months, but there is not a formal child support order against them. The law does not state there has to be court order child support in order to terminate their parental rights on the grounds of failing to provide support, so they could move forward on this ground.

Very often, a client will not know where one (or both) of the parents are. If this is the case, then we publish a notice in the classified ads of the local papers, and if they do not respond, then their rights will be terminated.

If you are able to have the parental rights terminated, then the adoption can proceed. This is the easier part of the case, and as long as you are fit yourself, you shouldn't have much problem with adopting that child who you have already been raising.

If you have other question, please let me know.

BOOK: Divorce for the ChristianDoes going through a divorce means that you can forget your Christian beliefs and morals ...
12/07/2016
Divorce for the Christian-A Guide from a Lawyer

BOOK: Divorce for the Christian

Does going through a divorce means that you can forget your Christian beliefs and morals in order to get what you what? I don't believe it does. I have been involved in too many divorce cases where people throw out their normal values and beliefs simple to 'win' the case (note-NO ONE wins in a divorce).

Additionally, people are often confused about what the Bible says about divorce. The Old and New Testament appear to have conflicting messages on the topic, and many people are confused as to how divorce is viewed in the eyes of God.

If you know someone who is going through a divorce, or has been through a messy divorce and is still having issues, I have written a book entitled "Divorce for the Christian-A Guide From A Lawyer." The purpose of this book is to help people maintain their Christian values even when going through this stressful time, as well as answering question about how the Bible treats divorce.

This book is available on Amazon at the link below. I believe that anyone who reads it will greatly help them deal with their spouse (or former spouse) as well as following the path that the Lord wants them to lead.

https://www.amazon.com/Divorce-Christian-Guide-Lawyer-Katonak/dp/1497456568/ref=sr_1_5?ie=UTF8&qid=1481143628&sr=8-5&keywords=Katonak

Divorce is an extremely difficult time in a person's life. Many people who go through this process take a 'win at all cost' attitude that attempts to destroy the other person. Such a posture is not only immoral, but is against the teachings of Christ. Author Brian Katonak has been handling divorc...

12/01/2016
Divorce, Child Custody, Child Adoption,DUI, Criminal Law and Estateal Defense | Brian Katonak, Aiken, SC

Today's Topic-What to Do as Our Parents Are Getting Older?

I have seen several people this week that are my age that have similiar issues-mom or dad are beginning to have health issues and they want to know what to do to make sure things are properly set up.

There are three things that are important for my older clients to have that will make things easier for both them and the people who may have to take care of them or their assets. Here is what they are:

1) A Will (or possibly a trust): This disposes of assets once a person passes away. Not only do you control who is going to get certain assets, but you also name who is going to be over everything (known as the Personal Representative or Executor). A Will can be helpful for certain unique circumstances. For example, you may want to leave money to someone but parcel it out over a period of time instead of giving one lump sum, and your Will can take care of this.

2) A Power of Attorney: This document allows you to designate someone to handle things on your behalf while you are still living. For example, an elderly parent may not be able to get out and pay their bills and handle their businss. They could get a power of attorney to their adult child so that this person could handle things. The Power of Attorney stays in effect even if the person is not competent, so if your parent comes down with Alzeheimers or dementia you can still handle things.

3) Health Care Power of Attorney: Similiar to #2, but this allows one to make health care decisions ONLY when the parent is not competent. This would allow you to make all medical decisions on behalf of the person. Within this document there is also a Living Will provision, which states one's intention to not be kept alive artificially if this is not chance of recovery.

I have talked to numerous clients over the years whose family member did not have these documents, and it makes things extremely difficult (if not impossible) to handle things that need to be taken care of. If you need more information, come in to see me and we can discuss in more detail. I also have a video on my website www.aikenlawyer.com that descibes these issues as well.

Brian Katonak provides professional legal counsel on DUI, criminal defense, estate planning, child adoption & divorce.

12/01/2016

While I typcially have an initial consultation fee for new clients, I waive this for anyone who contacts me and mentions that they have visited my page. Call the office at 803-644-5535 if you need to make an appointment

11/16/2016

Today's Question: If I leave my spouse, can they say that I deserted the home and have that used against me?

I recently had a client that left the marital home, and they were told that their spouse could use desertion against them to get a divorce. As other individuals have asked me this same question, I thought that I would help clear up that subject.

Not too long ago in this state, you could only get divorced if the other party was 'at fault.' We did not have a one year no fault separation as we do now. Therefore, to get divorced you had to prove either adultery, physical abuse, alcohol/drug abuse, or desertion. Desertion is defined as when one spouse has left the marital home and been gone for more than one year without the consent of the other.

Therefore, before we had divorces based on one year's no-fault divorce, people had to claim desertion to get the divorce. However, no one uses it now. I have been practicing over 20 years, and I have never seen anyone file to get a divorce on desertion-they can simply file for a no fault divorce. It is essentially a law that is still on the books that has no bearing anymore.

In ever separation/divorce case that I handle, someone has left the marital home-you have to be separated to file a case. Therefore, the fact that you leave the home can't be used against you.

11/08/2016

Today's Question-Are there grandparents rights in South Carolina?

This is a common question that I get, and the answer to this has changed over the past decade. At one time, the law was basicially that there was almost no rights for grandparents. However, this is no longer the case.
The law now states in order for a grandparent to be entitled to visitation, the parents of the minor grandchild must either be divorced or separated, or one or both of the parents must be deceased. Under those circumstances, the court can order visitation where the grandparent can show that:

•the child’s parents or guardians are being unreasonable in denying the grandparent and child the right to visit,
•they have done so for at least 90 days,
•giving the grandparent visitation rights wouldn’t interfere with the child’s relationship with the parent, and either, 1.the grandparent can show that the parent or guardians of the child are unfit, OR
2.the grandparent can show that there are compelling circumstances or, in other words, a very good reason that the court should overrule the parent or guardian’s decision to deny visits between the child and grandparent.

So what does this mean? If the parents are unfit (i.e. abusing drugs, abusing the children), then the grandparents can get visitaition, or even custody. However, one doesn't need to necessary show unfitness. If you can show 'compelling circumstances', than you can request visitation even if the parents object. I have found that 'compelling circumstances' is not something easily defined, but is more of a case by case situation.

I recently had a case where the grandchild and one of the parents had lived with the grandparents for approximately one year. The parent then moved out with the child, and got upset with the grandparents to the extent that visitation was no longer allowed. The judge ruled that based upon this length of time, coupled with the fact that the grandparents provided extensive financial support to the child, that this consitituted 'compelling circumstances.' Therefore, my clients were able to have visitation.

Should this issue come up for you, the best thing to do is to discuss the situation with an attorney to get assistance into whether you would have a case to file for visitation of your grandchild.

06/29/2016

Today's Question: If you are charged with domestic violence against your significant other, can they have the charges dropped?

Criminal Domestic Violence (CDV) has been at a real focal point of law enforcement over the last several years. I have seen a real increase on the number of my clients who have been charged with CDV. I think that in the past that if the law was called out on a domestic situation that they sometimes tried to help make peace. However, this has changed. If the law is called out on a domestic disburbance now, someone is going to jail.

What I often see is that after the man (or sometime woman) gets out of jail, their significant other calls me wanting for the charge to be dropped. However, it is not the victims' right to drop it. All criminal offense are deemed to be against the state, so every criminal case is called 'The State of South Carolina vs. ###'. Therefore, only the State can drop the charge.

This causes more stress in the home for the client and the victim, as they are now spending time and money on a legal case. From the viewpoint of the State, however, they are fearful that if they drop a CDV that it may cause the client to feel they can again assault their significant other without any reprecussion.

The victim sometimes tells me that they will change their story and tell law enforcement that nothing really happened at the incident. However, the police usually take a statement from the victim when they initially show up, so if the victim changes her story she could be charged with giving false information to the police.

Having a CDV on your record can have significant negative consequences to someone. Besides the punishment, it will be on your criminal record (which may cause you to lose your current or future jobs) as well as lose right to use firearms (goodbye deer season). Due to this fact, I can sometimes work out a deal with the State where my client can do counseling or anger management in lieu of being prosecuted for the charge.

If you do have a CDV situation come up, give me a call so we can discuss your options in more detail.

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135 Chesterfield St S
Aiken, SC
29801

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Tuesday 09:00 - 17:00
Wednesday 09:00 - 17:00
Thursday 09:00 - 17:00
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(803) 644-5535

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