Skip to main content
Category

Family Law Blog

In Adoptions, Family Law Blog

Terminating Parental Rights

child custody high earner

Stepchild Adoption and Termination of Parental Rights in San Diego

The process of terminating parental rights results in a court order given by a judge which permanently severs the legal relationship between a child and parent. Typically, this process takes place when a court finds one or both parents to be unfit to raise their child, or when one or both parents decide to give up their parental rights in order to put their child up for adoption.

In a stepparent adoption in San Diego County, the adopting parent’s partner, and the child’s biological parent will retain their parental rights, but the legal relationship between the child and the other parent will be terminated.

A Concrete Transfer

Once this relationship has been terminated, that biological parent relinquishes all of their responsibility for and rights to the child, and the adoptive parent acquires these responsibilities and rights. Because of this, it is possible to regard stepparent adoption as the permanent transfer between two parties, of parental responsibilities and rights.

Once the adoption process for the stepparent has been completed, it cannot be nullified or revoked except for in very serious situations such as fraud, mental illness, disability, or legal defect. This means that if the stepparent and biological parent go through a divorce, the adoption process is not terminated.

How to Proceed with Adoption as a Stepparent

If you feel as though you would like to begin the process to adopt your step child, as a stepparent, you must be sure that you meet all of the legal requirements necessary. First of all, you, as the adopting parent, and the biological legal parent must be in a domestic partnership or marriage that has been registered within the state you live in.

If you are not partners with the child’s parent, there is a possibility that you will still be able to adopt through a process called ‘second parent adoption’, this is a more complex process that requires a thorough analysis of the facts.  The adopting, or stepparent, must be at least eighteen years old, and is often required to be ten years older than the child that they are adopting, but this requirement can be waived in some circumstances.

Acquiring Consent for the Adoption Process

One of the most important and complex steps of the adoption process is to obtain all the necessary consent. First of all, you will need to sit down and speak with your partner or spouse about the idea of adoption, and ensure that he or she agrees to it. After this has been established, you may need to get consent from the other legal parent of the child.

This can be particularly complex, and if you cannot get the consent required from the other parent in question, there are certain circumstances that may mean you are eligible to adopt the child as a stepparent anyway. For example, if the birth parent in question is unable to support or care for the child on an emotional, physical, or financial level, then their parental rights may be involuntarily terminated.

The biological parent can consent to the adoption and termination of their parental rights.  This will make the process easier as they will need to sign a form and the process is streamlined. There are ways to negotiate consent if there are significant child support arrears, they can be waived if consent is given.  Additionally, contact and visitation can also be agreed upon if consent is given.  Negotiating a settlement to avoid trial is best for everyone involved.

If the biological parent does not consent to termination, the court will have to decide.  This is done with a trial to see if the biological parent has abandoned the child as determined by the law.  There are different ways to deem that the child has been abandoned, the most common would be to show no contact or communication with the child for a period of one year.  An analysis of the facts involved needs to occur before filing a request to terminate rights to determine which method should be used.  This is a very serious process as the court does not terminate parental rights just because; the court needs to make decisions based on the best interest of the child.  You should consult an attorney to assist you with this request as there are many details involved.

The Child has a Say at Age 12

If the child in question is over twelve years of age, they must also consent to the adoption process.  If the child is under the age of 12, a social worker will determine if the adoption is in the child’s best interests.  Either way a social worker is assigned to investigate and meet everyone involved to determine if this placement is best for the child.  They will visit the home as well as interview all the parties involved.

 

 ••Minella Law Group Can Help••

If you need assistance with a step parent adoption and terminating parental rights, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

 

In Child Support

How Can I Impute Income To The Other Parent?

income

Under California law, both parents are equally responsible for the financial support of their children. When computing how much child support is owed or received, the court considers each parent’s income to be a key factor.

Some parents choose to deliberately reduce their income to avoid the responsibility of paying support, or to increase the amount of support the other parent is ordered to pay.

Unfortunately, the children become the victims of this behavior. The court is invested in doing what is in the best interests of a child, so often it will attribute – or impute – income to one or both parents before ordering support.

Imputed Income Defined

If the court imputes income to one or both parents it is, in effect, saying that is the amount the parent could be earning. The court then bases its award of child support on that income, not what the parent claims to be earning. Judges do this to make sure children are receiving an amount that ensures their needs are met – and to prevent a parent avoiding child support altogether.

For example, if a parent up until the divorce has been earning $75,000 per year and then suddenly claims they’re earning minimum wage, the court will ask for information to determine if the decrease was due to a parent trying to minimize his or her child support obligation.

When Courts Impute Income

If the court finds that the parent ordered to pay child support voluntarily quit work or deliberately lowered their income, the court may decide to ignore that change and use the most recent amount ($75,000 in our example) they were earning. The order for child support would then be based on that figure. California family courts look at three main factors when determining if income imputation is called for:

  • The ability of the unemployed or underemployed parent to earn income.
  • The opportunity for the unemployed or underemployed parent to earn income.
  • The willingness of the unemployed or underemployed parent to earn income.

If the court finds the parent has a legitimate case of job loss or pay reduction, it will not necessarily or immediately impute income to him or her.

How Do Courts Arrive at an Imputed Income Amount?

Courts look to a parent’s “earning capacity” when deciding how much income to impute:

  • Willingness to work is decided by looking at whether the parent is looking for a job, sending out his or her resume, or going for job interviews.
  • Opportunity to work looks at what, if any, appropriate jobs are available in the area.
  • Ability is usually determined by looking at a parent’s educational level, works skills, and employment history.

As evidence of a parent’s ability and opportunity to work, the court will look at various evidence.For example, it may use a vocational expert’s report or testimony and/or the most recent salary the parent was earning. If the court cannot arrive at an amount using these methods, it may impute minimum wage.

If you’re divorcing and believe your spouse should be imputed income for the purposes of child support, you may want to consult with an experienced and qualified California family law attorney to help you better understand your options.

 ••Minella Law Group Can Help••

If you need assistance with your case, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

In Mediation

Mediation vs Collaborative Divorce

POA

When it comes to finding a peaceful resolution in divorce, neither collaborative divorce nor mediation will be the correct path for everyone. The approach that you choose to utilize will depend on the unique factors within your case, individual preferences, and your ability to access outstanding attorneys and mediators.

Points to Consider

It is important to understand the differences in your options. The primary feature of mediation is that a professional neutral party, the mediator, helps you negotiate terms with your partner, but has no authority themselves to decide the outcome of the case. Mediators are typically flexible and informal but they are a neutral and will not give you legal advice.

The primary feature of collaborative divorce is that both spouses will be represented by an attorney, who helps them to come to terms and sign a ‘no court’ agreement. The parties are still negotiating out of court but they are all working together to achieve a settlement.  With collaborative divorce, spouses negotiate through four-way meetings, and attorneys may involve other professionals within the case. Similarly to mediators, collaborative divorce is informal, flexible, and efficient.

Factors that can Lead to Favoring Collaborative Divorce 

Someone who feels as though they need the guidance and support of an attorney throughout their case may appreciate collaborative divorce. In some cases, your circumstances may include complex financial or legal issues that you don’t feel capable of negotiating yourself. In a collaborative divorce, two attorneys help to guide each step of the case, ensuring that you have a professional to confer with, whenever necessary.

Sometimes there are dynamics in a divorce where the parties do not get along.  One spouse may feel that they are being taken advantage of or not being heard, you may feel strengthened by the structure a collaborative divorce can bring. Having a quality collaborative divorce attorney at your side can give you the confidence to voice what’s important to you.

Factors that can Lead to Favoring Mediation

Mediation can be more flexible than collaboration, as there only needs to be three participants present, the spouse, you, and the mediator. Mediation is also more flexible in the procedures that you will be expected to follow, meaning that you could have more input in how and when things happen during your case. With mediation, you work directly with the mediator in deciding the substance and process of your case. Some people regard mediation to be more efficient and inexpensive than collaboration.

The reason for this is that you do not have to co-ordinate the calendars of four different people or more, at least two of whom will be busy professionals. Getting everyone together for meetings during a collaborative dissolution can be a time-consuming endeavor, which may add to the cost of the overall process.

Furthermore, California provides laws that are dedicated to protecting the confidentiality of things that are said during mediation, however no such laws have been put into place when it comes to collaborative dissolution. Although you do share attorney-client confidentiality, the four way meetings you take part in will not be considered ‘confidential’ discussions.

Obviously, there are positives and negatives to both options, and you may benefit from discussing your choices with a legal professional before making any final decisions.

•• Minella Law Group Can Help••

It is important to hire an experienced collaborative divorce attorney such as Minella Law Group with knowledge and experience to successfully negotiate your divorce without involving the court. For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you!

 

In Divorce

What is a California “Minor’s Counsel?”

California "Minor's Counsel

If you have minor children and are getting divorced, you and your spouse – with the help of attorneys – can often work out questions of custody, visitation, and other related issues with the help of your attorneys.

In some California cases, however, the court will appoint a person known as a minor’s counsel to represent the children.

The following explains what a minor’s counsel is and what their role in a divorce case is:

What is a California “minor’s counsel”?

A minor’s counsel is a lawyer appointed by the court to represent the best interests of the child. Attorneys who fill this role must meet the training, experience, and education requirements mandated by California law.

After they’re appointed, they gather information in several different ways, including interviewing the child, reviewing court files and relevant records such as school and medical reports, and investigating further if necessary. If the child has wishes they’d like to share with the court, this is also done through a minor’s counsel.

When is a minor’s counsel needed?

Most divorce cases involving minor children can be resolved without the help of a minor’s counsel. However, in some cases, the court will decide that a minor’s counsel should be appointed. This is sometimes done based on a recommendation from a parent, one of their attorneys, the child, a relative, or other parties with knowledge about the case, or the court can decide that having a minor’s counsel is in the child’s best interests without a recommendation.

The following are some of the circumstances that might prompt the court to appoint one (or more, if there are multiple children):

  • The divorce case is highly contentious.
  • The parents have an extended legal history.
  • The child is under stress due to the divorce dispute.
  • Claims of abuse, neglect, or child abduction have been made.
  • The court needs more information about what’s in the child’s best interests.

Although most divorce cases don’t require the help of a minor’s counsel, this position can help the court decide what’s in the child’s best interests in more complex cases. With each parent being represented by an attorney, a California minor’s counsel represents the child’s interests and gives related information to the court.

It is imperative to have a skilled family law attorney advocating for you and your child. Dont leave your time with your child up to chance, put yourself in the best position possible by having zealous representation.

 ••Minella Law Group Can Help••

Attorney Kathy Minella is on the court appointed list as a minors counsel. She is regularly appointed to assist the court in difficult and complex custody cases. Our attorneys are skilled in presenting custody cases in court that demonstrate the best interest of the child. Please call 619.289.7948 for more information. 

 

 

 

 

 

[image courtesy of pexels]

 

In Divorce, Family Law Blog

Prenup vs Postnup in California: The Difference

how do you officially change your name after a divorce

Gone are the days when getting prenup or postnup seemed a bad omen for the marriage. Currently, about 51% of prospective couples believe prenups and postnups do not mean a lack of faith in marriage but insurance to your finances and emotions in case of divorce.

Unfortunately, the terms prenup and postnup are often used interchangeably while they have different meanings. What is the difference between prenups and postnups, and which applies to your case?

Keep reading for these answers.

Differences Between Prenup and Postnup

Some of the major differences between prenups and postnups are:

Timing

A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before they get married. It outlines how assets, debts, and other financial matters will be handled in the event of a divorce or separation. Prenups can also address issues like spousal support and the division of property.

Prenups are signed by engaged couples who expect to get married soon. Although the prenup is signed before marriage, it becomes valid after the couple ties the not. 

On the other hand, postnups are signed by couples after they are already married. A prenup may be signed days, months or even years after the marriage. The couple decides when the terms of the agreement become effective, which may be a date before or after the signing date. A past date can go back to their wedding date.

Coverage

A prenup mainly looks at the property owned by the prospective couple before marriage. However, the postnup covers property earned before and after marriage. If the marriage has already lasted for a while, it gets tricky to agree on the community property since it should be divided 50/50. It also has to consider businesses and property that didn’t exist before the marriage.

Validation of the Document

Signing a prenup becomes valid if it meets California’s Uniform Premarital Agreement Act and is signed by both parties. However, a postnup becomes valid after being approved by the court.

Before the court approves the postnup, they need to confirm that each spouse came to the agreement voluntarily and that the agreement is fair to both parties. The court does not validate the document if the agreement does not meet such legal requirements.

Should You Get a Prenup or a Postnup?

If you are yet to say ‘I do’, don’t wait until you are married to get a postnup. Instead, get a prenup since it is easier to acquire than a postnup.

Fortunately, getting a postnup is only complicated but not impossible. Therefore, if you are already married, don’t hesitate to get a postnup as it will come in handy in case you separate or divorce your spouse. Either way, seek legal advice to ensure that you come up with a prenup or postnup that will help you in the future.

•• Minella Law Group Can Help ••

Attorneys at Minella Law Group are here to help and have your best interest at heart.  For more information or to schedule a consultation, call us at 619-289-7948.  We look forward to helping.

 

Close Menu