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In Mediation

Mediation vs Collaborative Divorce

Mediation vs Collaborative Divorce

Points to Consider

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.

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 Child Custody & Visitation, Family Law Blog, Military Divorce

Fathers Visitation Rights in San Diego

Fathers Visitation Rights in San Diego

Maintaining fathers visitation rights after a particularly heated divorce or during a separation procedure can be complicated.  It really helps to understand what fathers visitation rights you have as a father under California state law. If you and your ex have recently filed for divorce, the chances are high that you are going to be going through an emotionally fragile situation.  It is very likely that making strategic and sensible decisions may be more difficult, having emotional support through this process is important.

Knowing what fathers visitation rights in San Diego are in comparison to other custody orders, may help to ensure that you are well informed.  This is important so you do not lose any of your entitlements as a Father that you so desperately need in order to be able to continue to provide the care and attention to your child.  It is important to understand fathers visitation rights in San Diego.

What’s the difference between Legal Custody and Physical Custody?

Physical custody refers to the place in which the child will live, whereas legal custody refers to the individual rights of the parent to make decisions in the best interest of the child. This may include a parent deciding which school the child will attend, or whether they will seek certain forms of medical attention. As a father, you have the right to make decisions about your child with the other parent jointly.  Fathers visitation rights includes having joint legal custody to be able to make decisions about your child with the other parent.

The Role of Mediation in Visitation and Custody

Most of the time, when a couple is going through a divorce, the judge in question may order them into mediation in an attempt to resolve the dispute with as little conflict as possible. The idea is that the parents, by working together with an objective individual, will have the best opportunity to create a plan that protects the child’s best interests, and gives them both the results they need. The only threat that a mediator can present to a divorce case takes place if the couple going through the divorce cannot come to a reasonable agreement during their mediation sessions. Fathers visitation rights are addressed in this process, in San Diego mediation is a mandatory part of a custody case.

If an agreement cannot be formed, then the mediator will construct his or her own recommendation for the best options in visitation schedules and custody options. Since mediation is mandatory in San Diego, most judges will automatically give the recommendations of a mediator automatic approval, however if you do not agree with the mediator’s suggestion, you do have the right to contest the decision at court with an evidentiary hearing.

The mediator will take into consideration who has been the primary caregiver, where the parties live, how often the parties work, and the desires of the child.  It is important to fathers visitation rights, that these factors be presented accurately as it can mean the difference between joint physical custody or seeing your child on alternate weekends.

Rights to React Against Slander and Insults

When in the process of a divorce, insults usually go back and forth between the former wife and husband when they are alone and out of earshot, turning the children involved into prisoners that are caught between two important people in their lives. The result of this could be that your ex-wife starts to bad-mouth you in front of your children, which can be highly upsetting for you.

As a father, you have the right to keep the other parent from alienating you from your children through insults, by requesting a hearing that allows you to seek sanctions against your ex-wife. The rights of father’s in custody and visitation cases are more expansive in certain states than others. In California, for example, this may not be case and this is why you need to have a hard working and committed attorney who is walking you through this process so you know what the law is and how this affects you. Every case has different orders, as part of your fathers visitation rights you can make sure the orders include restrictions on communications with any minor children.

Minella Law Group can Help!

The dedicated attorneys as Minella Law Group can help guide you through the difficult and emotional process of seeking custody orders as a father in San Diego.  Minella Law Group is experienced in child custody cases and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

In Child Custody & Visitation

Move Away Requests in San Diego

The Facts About Move-Away Requests in San Diego

If someone were to ask a family law judge about the most difficult type of case they have to preside over, most of the time, the answer would be a move-away request.  A move away is where one party seeks to relocate themselves, and their child, to another geographic area. The destination could be 50 miles away, or 2,000 miles, making it difficult for the other parent to maintain a relationship with their child.

If the court does grant the move away request, the non-custodial party will no longer be a significant part of their child’s day-to-day life. However, if the court denies the move away request, and the custodial parent has no choice but to move away, then the child will be separated from the parent they may have the closest bond with. Either way, the circumstances are tough on the child.

What the Court will Consider

In move away requests, the court will consider various different factors, including:

  • The distance of the move away, if a move away is only a couple of hours away, it may be considered as less disruptive to the life of the child, and that child’s relationship with the non-custodial parent. However, a move away that takes the child across country, or to a different part of the globe, could require greater scrutiny. Usually, in international cases, the court will need to consider cultural differences, including potential, language, and dangers within the country where the child will be raised by the custodial parent.
  • The age of the child. Sometimes, a  move away that is far away from the other parent can be seen as more detrimental to a younger child who has a strong attachment to both parties.
  • The reason for the move away. In California, the parent does not have to justify their reasons for moving, but if there is evidence that the purpose of the move away is in bad faith, for example to interfere with the relationship between the child and non-custodial parent, the court will consider this in their decision.
  • The child’s relationship with each parent. The court will examine the relationship of the child with each parent and consider the attachment that may be present. If there is conflict between a parent and child, the court may appoint a child custody evaluator to make a decision.
  • The relationship between the parties. Do the parties engage in a healthy co-parenting relationship or is one parent undermining the other? If there is a significant distance between the parties there needs to exist a healthy co-parenting relationship or the noncustodial parents relationship with the child will suffer.
  • Where the child wants to live. In some cases, the child may be able to make a statement about where he or she wishes to live. In California, the law requires that children over the age of fourteen must be allowed to testify unless the court believes it will be harmful for the child.

Critical Decisions to Make

Whether you are the parent seeking a move-away request, or the non-custodial parent, you should seek the assistance of an experienced move-away request attorney when it comes to dealing with an issue that can determine how much time you spend with your child. Your lawyer should be able to give you advice on the factors within your case that may influence the court, as well as what you could do to strengthen your position and effectively present your case.

Minella Law Group can Help!

If you are facing a move-away request it is important to have an experienced move-away request attorney by your side.  Minella Law Group is experienced in move-away requests and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

 

 

 

 

In Domestic Violence Restraining Orders, Family Law Blog

How To Request a Restraining Order

How To Request a Restraining Order

A judge in San Diego may issue a restraining order as an official order prohibiting a particular action. An individual may seek a restraining order for various reasons, including copyright infringement, domestic abuse, harassment, legal disputes, and employment disputes. Anyone who applies for a restraining order must first send a request to their local court, which will determine the merit of the request by examining the evidence submitted.

Although restraining orders are limited in their duration, restraining orders are typically used as a form of immediate relief if  the petitioning party requires instant action to prevent harm or harassment. Although a permanent order can be possible, this usually takes months to to allow the parties time together evidence for a  full formal hearing. However, the process of obtaining a temporary order can be completed in a matter of days.

What to do First When Requesting a Restraining Order

Your first step in obtaining a restraining order will be to speak to an attorney who is experienced in the area, usually one specializing in family law. If you are concerned about an ex harassing you, or a spouse, then a family attorney could help to handle the details of a restraining order for you as well as the custody or divorce aspect of your case.

Next, you will need to gather as much evidence as possible to support your case. Remember that simply presenting a ‘He said’ or ‘She said’ case in court can be problematic, and ideally you should have more than just an accusation that an individual did something requiring a restraining order. Evidence can be gathered in various forms, you might for example, use threatening texts or emails, pictures, documents or even recordings of harassing phone calls. Police reports or witness statements can also be used to support your position.

Preparing a Request for a Temporary Restraining Order

This is usually a step that you should take with your family law attorney. In simple terms, you will need to prepare a document that will inform the judge what you want, and the reasons why you want it. Usually, these documents come in two types, the first, standard option simply asks for a restraining order temporarily and sets a date to have both parties appear before a judge.

The other document requests an ex parte restraining order, and this refers to a situation wherein only one party attends the court to ask the judge for an order. Typically, if a judge grants an individual an ex parte order, she or he will then set a hearing within fourteen days, allowing the other party to give their side of the story.  There may be children involved in this request, if there are a child visitation request also needs to be included with the request.

What Happens Next

The judge will review your paperwork that day and decide if a temporary restraining order should be granted or denied.  Whether it is granted or denied, a hearing will be set where both parties will have to appear at that hearing.  A notice will be officially served to the opposing party providing them with the date that they must attend the hearing. In this case, your attorney will use a process server that will handle the issue for you, meaning that you should not be asked to serve the notice on anyone’s behalf. Beyond this, all that will be left for you to do is to attend the hearing. Dress smart and do your best to stay calm throughout the proceedings, even if you feel yourself getting emotionally involved. The more clearly you can explain your position, the better chance you have of the process going smoothly.

Minella Law Group Can Help

If you or someone you know is the victim of domestic violence and need assistance obtaining a domestic violence restraining order the qualified staff at Minella Law Group can assist you. 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.

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In Domestic Violence Restraining Orders

Obtaining a Domestic Violence Restraining Order

Obtaining a Restraining Order as a Victim of Domestic Violence

In San Diego, it is possible to obtain a domestic violence restraining order from the legal judicial system, which will effectively prohibit an individual from performing any actions that may harass, or harm you in any way. Although it is intended to protect the individual for whom it is taken out, a restraining order is a civil order, meaning that it will not provide an abuser with a criminal record unless they violate the order.

Who can Apply for a Domestic Violence Restraining Order?

In some cases, domestic violence restraining orders are issued by judges in particularly heated legal situations, such as a custody battle or ongoing divorce that is causing a potentially dangerous or threatening situation between certain individuals. However, victims of domestic abuse, or violence can also obtain a restraining order if they have been the subject of abuse by their spouse, family member or any previously present individual, so long as the victim is either an emancipated minor or over the age of 18. The term ‘domestic violence’ can refer to any of the following acts that have been committed against a victim:

         o   Sexual assault

         o   Assault

         o   Terrorist threats

         o   Stalking

         o   Kidnapping

         o   Homicide

         o   Criminal trespass

         o   Harassment

        o   Criminal sexual contact

        o   Burglary

        o   Damaging personal property

What can a Domestic Violence Restraining Order do for Victims of Domestic Violence?

As a victim of domestic violence, an individual can request a judge to sign a document called a ‘Domestic Violence Restraining Order’, which demands that the abuser obey the law and follow rules regarding what they can, and cannot do. For example, the abuser may be required to have no contact with the victim either at home, via phone or email, at work, or anywhere else you might ask the court to place on the order.

The order may also work to protect other individuals within your family if you believe that they are at risk. The court could demand that the abuser in question leaves your family home, shared apartment, or domicile in which you live, even if that particular piece of real estate is in the abuser’s name.

In San Diego, a court may rule that the abuser must pay any financial costs that may have arose as a result of the abuse. For example, any medical or dental treatment, household bills that are immediately due, loss of earnings or expenses caused by moving home. The judge may also demand that your abuser pays for any fees that must be paid to an attorney on your behalf as a result of having to seek a domestic violence restraining order.

How Long will a Domestic Violence Restraining Order Last?

When you initially file to obtain protection from the law, it will only be on a temporary basis. The order that you receive will indicate a specific date at which point you must return to the court alongside the abuser to endure a formal proceeding. If your abuser does not arrive as expected at the hearing, then you may find that the judge either enters a final order if you have proof as to the abuser being served a notice to appear, or continue the temporary order until the individual can attend.

Remember, the courts will take domestic abuse very seriously, and you will not be asked to serve papers to the abuser on their behalf. So you do not have to worry about that. The local sheriff will serve the restraining order as soon as possible so they are aware that there is an order in place.  Once they have been served, they are on notice and must obey the orders or they can be arrested.

Minella Law Group Can Help!

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If you or someone you know is the victim of domestic violence and need assistance obtaining a domestic violence restraining order the qualified staff at Minella Law Group can assist you. For more information or to schedule an appointment, click the button above, or call us at (619) 289-7948. We look forward to helping you.

In Child Support, Family Law Blog

Why a Child Support Order is Necessary in San Diego

Understanding the Importance of Arranging Child Support in San Diego

Child support refers to a parent’s financial support of a child’s everyday living costs, including the consideration of necessities such as clothes, food, and a secure home environment. Although child support is not the only way a parent can contribute to the development of their child, it is particularly important for many reasons.

Although you may be in an uncomfortable situation with the other parent responsible for the child at this time and feel as though you cannot discuss the issue of child support, it is important to recognize that child support can make a real difference to children, not only providing them with the clothing, food, and essentials they need, but also providing a steady foundation for both parents to remain intimately involved within their child’s life.

How to Properly Arrange Child Support in San Diego

Whatever route you take when it comes to caring for and supporting your child through the complicated process of a divorce or separation, it is important to remember the child support that you put in place will help to give them the very best start in life, as well as keeping them secure throughout the journey to adulthood. Child support payments are a legal responsibility, and most of the time, a large majority of separated parents quickly come to an agreement about the costs required to care for their children.

However, making arrangements after a separation can be troublesome, and you may find that you need help from an experienced  family law attorney when it comes to working out the fine details. This is certainly the case if you do not trust your ex and if there are communication problems between the two of you.  Since child support is based on the amount of time you spent with your child and the amount of income made, if there is a lack of trust it can make the process more complicated.  You want to make sure that each person is properly reporting all sources of income, this may involve issuing discovery to look into the finances of each person.

A large percentage of families decide to construct an arrangement between themselves, agreeing formally with the other parent about the type, and how much child support that one will provide to the other. In legal terms, an agreement such as this is called a child support stipulation, however if you find that you cannot agree or that there is excess difficulty coming to terms, there are other ways to arrange child support.

The Options for Arranging Child Support in San Diego

One option for parents unable to come to an agreement about child support arrangements is by seeking the assistance of Department of Child Support  Services or DCSS. DCSS is a service the government runs to arrange support on your behalf, however they will only assist the custodial parent who is the payee or the receiver of support. DCSS will analyze the figures and make a decision on how much the paying parent (non-custodial parent) should pay to the receiving parent (custodial-parent ). This amount is calculated using a standard formula which allows the service to work out an enforceable amount then collect payments from the paying parent to be passed onto the receiving parent.  It is always helpful to have DCSS involved with the enforcement issues because they can monitor whether payments are received or not and also apply interest to any arrears.

The other option would be to hire an experienced family law attorney to assist you with calculating support.  An attorney will be able to examine all the factors used to calculate guideline child support and make sure that all income is factored in properly.  There are different types of income and they will need to be applied differently. For example, if one party is in the military and receives BAH, this is a non taxable income that needs to be calculated as non taxable.   An experienced family law attorney can assist you with this calculation and analysis of income.

Do I Need An Order, Can’t I Just Come to a Verbal Agreement?

If you and your partner are co-parenting and have an agreement between you for child support, you must get it made into an order of the court!  If there is no child support order, there is no obligation.  If a payment is missed, there is no one to enforce this payment unless it has been made into an order of the court.  If there is no obligation than there is no need to pay.  It is important to protect your child and yourself by having any agreements memorialized into a court order.  An experienced family law attorney can assist you with preparing a stipulation to send to court.

 Minella Law Group Can Help!

 Whether you need to obtain a child support order, have an existing order modified, or enforce an order, it is best to speak with an experienced San Diego family law attorney at Minella Law Group. Your attorney will work to make sure that the court considers all factors that are in your favor when making its decision.  Please call (619) 289-7948 to schedule a consultation.

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In Adoptions

Effect of Stepparent Adoptions

Stepchild Adoption and the Effect of an Adoption Order

If either your partner, or yourself have children from a previous marriage or relationship that currently live with you, you are already part of a step-family. Much of the time, when a stepparent is living with a child, taking complete responsibility for them on a daily basis, they feel the desire to acknowledge their relationship with that child on a more formal level through the process of adoption.

As the partner of the child’s natural parent, a stepparent has the right to apply to adopt that child and the process that you engage in will depend on what is best for yourself, and your family.

What is an Adoption Order in San Diego?

In order for a stepparent to adopt their partner’s child, the legal relationship between that child and their other natural parent must be ended, along with any legal relationship with that side of the family’s extended family network, such as grandparents and aunts. This can be a particularly difficult part of the process, since some children feel as though they are being given the choice to decide between which adults are their favorite, and they may later blame the stepparent for this if they feel they are pushed to hastily into the wrong decision.  As the stepparent, you have the right to allow the child to maintain a relationship with their extended family.  This decision should be made in the best interest of the child, if the child has a great relationship with grandparents it would be detrimental to just deny them the right once the parental rights with the biological parent has been terminated.

One important note to remember, once the adoption process is complete the child loses their inheritance and maintenance rights from the other parent, giving you complete responsibility over them. You may decide whether you would like to change their surname which can be done through the adoption process,  and your stepchild will walk out of the adoption hearing with your name and as your legal child. Even if you and your partner go through a divorce, you will still be the legal parent of his or her child.  The adoption is not terminated or revoked just because the marital status is terminated.  You are officially the parent of that child once the adoption is granted!

What is a Parental Responsibility Order or an Agreement?

There are alternatives to the adoption order, such as the PR order or agreement, which enables a step-parent to gain responsibility for their step-child by court order or agreement if they have become the partner of the child’s parent. If someone’s wife or husband is the only person with parental responsibility for the child, they can formally agree to share that responsibility with you, however, if the child’s other parent also has parental responsibility, they must agree to this share, also.  This may be a great alternative to giving rights where rights cannot be obtained since there are already two parents caring for the child.

What is a Residence Order?

This kind of order names the individual that the child is going to live with on a daily basis. If one of the people named on this order does not have parental responsibility already, the order should give it to that person, allowing them to share parental responsibility with the child’s parents, without giving them the same exact rights.

In this particular case, neither the step-parent nor the parent will be allowed to take the child away from the country of residence for more than a month without permission from the court, nor will they be able to change their surname. With a residence order, a step-parent cannot decide on a guardian to care for a child should they die, and in effect, the order will give you some form of security and stability, but without the permanence, an adoption order allows.

 Minella Law Group Can Help!

If you need assistance with your stepparent adoption, the qualified staff at Minella Law Group can assist you.  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.

 
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In Adoptions, Family Law Blog

Termination of Parental Rights: Voluntary vs Involuntary

The Difference between Involuntary and Voluntary Termination of Parental Rights

As a parent, you automatically gain a certain set of rights. Your parental rights are the factor that imbues you with the responsibility necessary to properly nurture the physical and emotional well-being of your child. As a parent, you are capable of making decisions for your child where they potentially could not make an informed decision of their own accord, and these decisions should be in the best interest of the child in question.

These decisions could relate to a wide range of potential religious practices, beliefs, health concerns, and medical care and public, private, or even home schooling. Because you’re the child’s parent, you have the right to look after, raise, and teach your child in the manner that you see fit, so long as this coincides with the boundaries of the established laws. However, these rights do not necessarily have to be permanent; they can be terminated, either voluntarily on your behalf, or involuntarily through the order of a court judge.

Understanding Involuntary Termination of Parental Rights in San Diego

If your parental rights are involuntarily terminated, this will involve the court making the final decision that the termination of your parental rights is in the best interests of the child. There are various reasons why a court may decide that your parental rights should be involuntarily terminated, including:

  • Neglect of the child in question
  • Abandonment
  • Drug or alcohol abuse that would make looking after the child difficult or impossible
  • Abuse, physically or emotionally
  • A felony or conviction of a crime against children
  • The inability to emotionally, physically, or financially support your child.

In these cases, parental rights are not automatically terminated, there is still a process that must be considered, unless the parent has abandoned the child as an infant, or has been convicted of a voluntary manslaughter or murder charge, or has caused some bodily harm to a child.

Understanding Voluntary Termination of Parental Rights in San Diego

There are many circumstances wherein the voluntary termination of parental rights may be the best possible option for the child. Birth parents can voluntarily relinquish their parental rights when they place their children up for adoption, or hand them over to adoptive families. In this case, the adoptive parents will receive the parental rights over that specific child.

Furthermore, if any parent decides at some time that they do not want to be responsible for their child any longer, they have the right to terminate that responsibility by relinquishing their rights, or beginning the process for termination of parental rights. However, many states do require that any parent who requests to relinquish their parental rights must appear before a judge.

If a child is put into a foster care, this does not mean that the parental rights will be automatically terminated. It is generally up to the specifics of the situation, and the judge’s discretion, since some children can be temporarily put into foster situations until the father and mother are capable of parenting. If parental rights are terminated in this particular situation, the child can be adopted and is referred to as a ward of the state.

 Minella Law Group Can Help!

If you need assistance with terminating parental rights whether it be voluntary or involuntary, the qualified staff at Minella Law Group can assist you.  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.

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In Adoptions, Family Law Blog

Terminating Parental Rights

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, click the button below, or call us at (619) 289-7948. We look forward to helping you.

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In Family Law Blog

May Victories!

The staff at Minella Law Group is still buzzing over the recent victories we received on behalf of our clients.  May was a busy month at MLG with 4 contested cases and 4 successful outcomes!! We could not be more proud.

First, we successfully opposed a renewal to a domestic violence restraining order for a father of 3 minor children.  At the time the Domestic Violence Restraining Order (DVRO) was issued Father was unrepresented and was not aware of how impactful a restraining order is on your life.  The DVRO was issued for a period of 3 years for no contact with the mother.  Father is a military veteran who left the military on disabled status and was living in Canada with his family.  As a result of the restraining order every single time he crossed the border to access his medical appointments which were extensive he would be held for hours and it was a huge burden on him.  Additionally, he is a Native American Tribe leader and was not able to own or operate any weapons and therefore could not hunt for his tribe.  We had a 3 hour hearing at which point the judge found that Mom did not have proper motives for filing the renewal and her request was denied.  It was a long-awaited victor for Father!

Next, we represented Mother in a custody battle with her ex husband who was recently in a domestic violence altercation with his current wife in front of the son, which step-mom was ultimately arrested for.  We filed an ex parte request to suspend all visitation with Dad due to the fight that occurred in front of the son which resulted in the son calling 911 for help.  The judge suspended all visitation until a further investigation could occur.  Father missed his Family Court Services appointment and at the next hearing did not give any valid reason why. During that hearing, Father also lied repeatedly under oath and penalty of perjury about the circumstances surrounding the event.   We requested the court deny any and all visitation until further court order because of Dad’s actions.  The judge agreed and Mom was awarded sole legal and physical custody of the child until further court order. This was a wonderful outcome for the child and for his mother, our client, as well.

We also successfully opposed a move away request which allowed the child to stay in Dad’s care full-time.  Dad and Mom had a very contested custody case where Dad had a 23% timeshare with the minor child and was working on gaining joint legal custody against Mom’s objection.  In late 2013 we filed a request to modify custody to change the custody arrangement to joint legal and allow the child to spend equal time with both parents.  When Mom caught wind she began looking for jobs in different states and ultimately secured a job in Utah and she filed a request to move the child with her.  We opposed the motion and the parties participated in Family Court Services Mediation where it was recommended that the child move with Mom.  We decided that we would fight this recommendation and we had an evidentiary hearing on the issue.  We showed Mom’s unwillingness to allow any additional time with child when Dad would ask, we showed Mom’s email communication which was hostile and belittling, we also showed that the reasons for Mom’s move were vindictive and done with the motivation of keeping the child out of Dad’s life.  The judge agreed and ordered that the child would remain in Dad’s care full-time and Mom would have visitation rights.  This was a long overdue victory for this father!

Finally, we closed out the month with a contested termination of parental rights for a pending step parent adoption.  Bio Dad had not been in his son’s life for over two years, but when he heard about the pending adoption decided to contest the termination request.  The facts were very clear in this case, what was not clear was the active case in Indiana where the child was originally from.  Bio Dad claimed to have filed multiple custody modification cases in an active effort to see his son.  When the parents met with the social worker assigned to investigate the stories told were complete opposite.  Bio Dad lied repeatedly to the social worker about facts and events that took place over the last two years.  As a result, the recommendation was not in our favor.  We were lucky in managing to get the entire Indiana case file overnighted to us in time to file all the records with the court to verify Bio Dad’s lies.  We had a one day trial with 4 witnesses and 40 pieces of evidence to admit.  It was shown through testimony that Bio Dad was lying about several facts and had in fact not seen or communicated with his son in over two years nor had he made any attempts to do so.  After review of the evidence and testimony submitted, the Judge agreed with our position and ultimately terminated Bio Dad’s parental rights.  This will allow the child to eventually be adopted by his step-father who has been a constant in his life for the past 3 years and is the only father the child has known.  This was a wonderful outcome for the whole family and we were so proud to be apart of it!

We love to be able to share these success stories of our clients and are so proud to be a part of every one.  If you think you have a case that you need assistance with please call 619-289-7948, or click the button below,  to schedule a consultation at no cost. We look forward to helping you.

 

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