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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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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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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.

 

Domestic Violence Restraining Order Renewals

Domestic violence restraining order renewals (DVTRO’s) should not be taken lightly as criminal and civil penalties attach to the orders.  During the existence of the orders the restrained party needs to adhere to the orders to make sure there have been no violations.  Having a domestic violence restraining order on your record can seriously impact your life.  A DVTRO will show up on background checks and might prevent you from getting a job or coaching a sports team.  If the restrained party needs to cross the border, this can cause detainment as well as a more thorough search of belongings.  Most importantly, the restrained party cannot possess any firearms while there is a DVTRO.  A restraining order can last up to five years, however upon the expiration of the order the protected party can file a request for a  Domestic Violence Restraining Order Renewals up to three months before the expiration of the order.  The judge will consider their request and has the authority to grant a permanent restraining order which would be in existence until further court order.  The potential is there for the DVTRO to remain in place for the restrained party’s entire life!

Can I Contest A  Domestic Violence Restraining Order Renewal?

Absolutely! California Family Code § 6345 states “In the discretion of the court, the orders may be renewed upon the request of the party, either for five years or permanently, without a further showing of abuse since the issuance of the order.  If the restrained party does contest the renewal, the protected party is not entitled to a renewal merely due to desire. Family Code § 6345 does not provide the trial court shall automatically renew the existing protective order, it only states the court may do so in the proper discretion of the court.   In exercising its discretion, the court must inquire beyond only the petition party’s subjective desire to have the protective order extended.  Just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain.

What Does the Court Examine When Determining Renewal?

In a 2004 California Court of Appeals case Ritchie v Konrad (2004) 115 Cal.App.4th 1275, the court laid out the factors the court considers when determining whether or not to renew a DVTRO.  Here are the factors:

  1. A trial court should renew the domestic violence prevention restraining order, if, and only if, it finds by a                preponderance of the evidence that the protected party entertains, a reasonable apprehension of future abuse.
  2. The existence of the order itself often will be less telling than the facts supporting its issuance. ,The trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.
  3. It is relevant to the court to examine any significant changes in the circumstances surrounding the initial protective order as it may be that the opportunity and likelihood of future abuse has diminished to the degree that they no longer support a renewal of the order.
  4. If the abuse is not physical, it is also relevant to consider the burdens the protective order imposes on the restrained party.

 Who’s Burden Is It?

The burden of proof is on the protected party to prove to the court by a preponderance of the evidence that there is a reasonable apprehension of future abuse. It should be noted that the burden is very low.   The protected party only has to demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.

If the protected party can meet their burden of proof, the restrained party will have to show there is NO reasonable apprehension.  This is done by demonstrating the factors the court can consider do not prove a reasonable apprehension.  For example, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?

Minella Law Group Can Help!

If you need assistance with a  Domestic Violence Restraining Order Renewal 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.

 

Defining “No Fault” Divorce

In 2010, New York became the last state in the country to become a “no fault” divorce state. (California was the first to eliminate all fault grounds for divorce.) “No fault” means that it doesn’t matter why either party wants a divorce. All you need to get a divorce is for one spouse to say that the marriage is broken beyond repair. To translate that into legal terminology, the spouses are experiencing “irreconcilable differences.”

What is “At Fault” Divorce?

“At fault” (or “fault”) divorce refers to a legal system that only grants divorce if one spouse can show that the other spouse did something wrong. In other words, one spouse must be at fault for the failure of the marriage. Continue Reading

My Spouse Filed for Divorce: A Step-by-Step Guide of What’s Next

In California, it only takes one spouse to end a marriage, and your spouse does not have to prove you’ve done something wrong. If you’ve received a petition and summons for dissolution, your spouse is seeking a divorce. This can be a stressful and confusing time. The whole process takes at least 6 months to complete. Knowing what to expect can help ease the burden.

Responding to the Petition and Summons

In the petition, you can see what your spouse is asking of the court, including child custody preferences and support payments. The petition will also contain some restrictions on what you can do while the process moves forward, such as selling property or moving your children out of state. Continue Reading

December 2013 Family Events

Here are a few family-friendly events happening in San Diego in the coming month. As always, if you know of an event you think the families we work with should know about, please let us know so we can pass it along.

 

San Dieguito Heritage Museum

Hands-on Activities for Families

December 7, 2013, 12pm – 4pm

450 Quail Gardens Drive Encinitas, CA 92024

 

City Ballet of San Diego

Sugar Plum Fairy Luncheon

December 14, 2013, 12 noon

Bristol Hotel, 1055 First Avenue, Downtown San Diego

 

 

Campfire San Diego

New Years Eve Kids Count Down & Overnight

December 31, 2013, 5pm

3101 Balboa Drive San Diego, CA 92103

 

 

Where do You and Your Kids Connect?

According to tradition, the first Thanksgiving holiday became a monumental occasion marketing the intersection of two cultures—the Native Americans and the Pilgrims settling in the New World. The Native Americans helped the Pilgrims survive particularly harsh times, helping them understand how to farm the land, trap food, and many other critical techniques that would’ve cost many more lives if the Pilgrims had been left to their own devices.

Despite their difference and many ongoing challenges, these two unique cultures were able to connect and communicate in valuable ways. Let’s take this larger idea and bring it over to the challenges that parents can have trying to connect and communicate with their kids. Aside from the obvious age difference, there are many other variables that can impose a seemingly impassable divide between adults and children—but it doesn’t have to be that way!  Continue Reading

Healthy Family Treats for Halloween

There are few kids out there that don’t enjoy the occasional indulgence in candy and other sugary treats, and Halloween seems the perfect time to allow them to satisfy their sweet tooth. However, while Halloween is a great time to experience as a family, making costumes, carving pumpkins, and Trick-or-Treating, you don’t always have to let your children’s health go by the wayside. In fact, it can be a great opportunity to instill even more healthy habits in your kid and encourage them to make good eating and snacking choices while being offered less-healthy options.

Now, this doesn’t mean you have to be the family on the block that only offers chopped veggies to wandering ghosts, goblins, and witches. Nor do you have to absolutely ban any and all candy from the household. Instead, it can simply mean being more aware of how much candy is being consumed and talking to your kids frankly about the long-term consequences of such. As we’ve noted before, kids enjoy learning and being given the chance to make their own informed decisions. The same applies to consuming candy on Halloween! Here are some ways to address the sugar dilemma while keeping the kids happy:  Continue Reading

November Family Events in San Diego

Here are a few family-friendly events happening in San Diego in the coming month. As always, if you know of an event you think the families we work with should know about, please let us know so we can pass it along.

11/22/13 Lux Art Institute – Family Friday

11/10/13 (second Sunday) New Children’s Museum – Target Free Second Sunday