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.