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FAQ: Can I Request Termination of Parental Rights?

By | Adoptions, Child Custody & Visitation | No Comments

It is possible to request termination of parental rights in California, but it’s often not granted. Termination of parental rights can only happen by court order and there are strict guidelines for doing so.

Termination of parental rights ends the legal parent-child relationship and terminates rights such as:

• Inheritance

• Custody

• Visitation

• Child support

• Liability for a child’s misconduct

Parental rights can also be terminated for an adoption or when the court finds either or both of the parents to be unfit. The court will only order termination of parental rights if there is someone else prepared to take on the care of the child.

How Termination of Parental Rights Happens in California

There are several ways termination of parental rights occur:

  • In Juvenile Dependency Court where the child, usually due to mistreatment, becomes a ward of the court. If the court finds one or both of the parents has abused, neglected, or abandoned a child, or if one or both parents are physically or mentally incapacitated,  termination of parental rights occurs to allow for adoption.
  • In Family Court Adoption proceedings where both birth parents voluntarily agree to termination of parental rights.
  • In Family Court Stepparent or Domestic Partner Adoption proceedings, where termination of parental rights is consented to by the non-custodial parent or where the court finds a parent has willfully abandoned a child.

Can Termination of Parental Rights be by Agreement?

California courts have ruled the parent-child relationship is the most fundamental right a child possesses. Parents are not entitled to stipulate away their duties and obligations to their child, and the courts have repeatedly found agreements to terminate parental rights are void and non-enforceable.

A parent cannot voluntarily relinquish their rights to avoid paying child support, even if the other parent agrees.

Abandonment and Willful Failure to Support

Even if you’re worried an absent parent will suddenly return and attempt to gain custody of your child, the courts do not consider this a reason to terminate parental rights. The exceptions are when there is a stepparent or domestic partner adoption, in which case the court may consider the absent parent’s abandonment and terminate parental rights without consent.

Consult an Attorney

Termination of parental rights is a serious issue, and a petition to terminate is not always granted by the court. You cannot have terminated because you’re upset with the other parent or don’t want them in your child’s life. This is a complex area of family law and you should consider speaking with an experienced California family law attorney about any questions you have regarding terminating parental rights.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

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How to Adopt a Child in California

By | Adoptions

Adopt a Child in California

Adopting a child is a wonderful, but often challenging process for everyone  involved. Similar to any state within the US, California comes with its own specific set of rules when it comes to adoption. Enlisting the help of a professional family lawyer with experience in adoption, such as Minella Law Group, is usually the best way to get your adoption completed expeditiously and efficiently.

However, you want to make sure that you’re as prepared as you can be for the process and there are a few things you should learn on how to adopt a child in California.

Different Types of Adoption in California

One of the very first things you will need to do is figure out what kind of adoption you’re going to be engaged in.  There are many different types which will determine what you will need to gather in order to finalize.

Relinquishment, or Agency adoption, refers to the process wherein a licensed public or private agency places a child up for adoption. Up until the point when the adoption has been finalized, the agency will have legal custody of the child, either as a result of involuntary termination of the parents’ legal rights, or through voluntary relinquishment.

Independent adoption refers to when the birth parent of the child voluntarily decide to place their child up for adoption to prospective parents. The adoptive parents are specifically selected by the birth parents either through assistance of an organization or because they have a relationship with the prospective parents. This could be an open or closed adoption, but the main difference is the birth parents are willing participating in the process.  The prospective parents will need to file a petition to adopt, and arrange for an Adoption Service Provider to assist with the consent process which occurs after the birth of the child.  California requires the use of an Adoption Service Provider to work with the birth parents to make sure they understand their rights regarding relinquishment of their parental rights.

International adoption is a form of adoption that allows potential parents to take custody of a child from another country. In this case, a special visa will be granted to the child under the federal law, and the adoption process will be finalized in California court provided that jurisdictional requirement have been met.  The adoptive parents will be working with an agency in the country they are adopting from as well as Health and Human Services to process the adoption.

Step-parent adoption is when an individual chooses to adopt a spouse’s’ child due to failure to communicate or to form a relationship with their child.  If the adoptive parent can satisfy California standard under Family Code 7822 showing that there has been no meaningful contact or communication within a one year period.  This process is generally handled by Health and Human Services and if the petition is contested will result in a trial.

For all these types of adoption, the court will need to legally terminate either one or both parents parental rights in order for the adoptive parents to become the legal parents of the child.

Second Parent adoption is a type of adoption where a second parent can have a legal parental right to the child without terminating the parental rights of the other parent.  Under this adoption, the child will have two parents who have the ability to make decisions on the health, safety, and welfare of their child.  This option is best when two non marital cohabitants share parenting duties but only one party is the legal parent of the child due to an unwillingness to marry.

Regardless of which type of adoption you are looking for you will be required to participate in an investigation to determine if your home and you are fit to care for a child.   You will begin the process by actually filing the petition for adoption and paying the filing fee then participating in the investigation stage of the proces.  You will have to gather documents for the social worker assigned to your case, if they are court documents, they will have to be certified. These include marriage license, divorce judgment, child birth certificate, custody orders, and fingerprints which can be obtained through Livescan.

Complete the Investigation and Finalize the Process to adopt a child in California

Since 2011, public agencies for adoption have begun to charge up to $500 for agency adoptions and as much as $4,500 for independent areas of adoption.  Your adoption social worker will need to know that you are fit to adopt before they allow you to take custody of a child. Generally, you will be assessed based on how well you will be able to meet a child’s needs. Often, you will be subject to a home study that includes an interview, as well as a medical, marital, criminal, and an employment background check.

Once the agency has approved you, the child for adoption will be placed in tentative care, and you will have to finalize your petition with the court. If your petition is successful, the court will make a final adoption order and you will be deemed the legal parent of the child.

For Step Parent adoptions, a social worker will meet with both parents and the step parent to determine if the criteria under Family Code 7822 has been met. They are looking to see if the biological parent has withheld the child or purposely hid the child to try and meet the criteria.  The social worker will issue a report on their findings and either recommend termination of parental rights or not.  The adoption cannot move forward until parental rights are terminated.

Minella Law Group Can Help!

If you and your family are contemplating or going through an adoption, the qualified staff at Minella Law Group can assist you.  We will guide you through the process providing legal and emotional assistance the whole way. Adoption can be a very difficult length process but with experience and dedication from Minella Law Group on your side, it does not have to be. 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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Effect of Stepparent Adoptions

By | 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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Termination of Parental Rights: Voluntary vs Involuntary

By | Adoptions, Family Law Blog

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

By | Adoptions, Family Law Blog

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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How to Prepare for the Process of Adopting Your Stepchild in San Diego

By | Adoptions, Family Law Blog

Demographics, the quantifiable stats of any particular population, have shown that an increasingly high percentage of blended families’ fill the spaces in many areas wherein people work and live. A blended family, or stepfamily, is one where one parent has children which are not genetically connected to the other parent.

Many of these families exist happily in a state of compromise, providing each child with two sets of names, the possibility to visit, or even live with the other biological parent for an agreed period of time. However, some parents in a blended family want to have their children become more connected in what appears as more of a whole family, sharing one particular set of parents. In order to accomplish this, a stepparent must be aware of all the steps and information involved in the process of adopting their stepchild. There is the legal process to consider but also the emotional process, both need to be considered since a stepparent adoption requires termination of the biological parent’s rights.  So how do you prepare mentally for a stepparent adoption?

Preparing for the Adoption Process

When it comes to adoption, there are more than just the legal proceedings to consider. At the end of any adoption procedure, the aim should be to provide a more comfortable family life for the child in question. The first thing you will need to do is discuss the idea of adopting the stepchild with your spouse or partner, so that you can be sure you both agree that this is the correct course of action. Remember that his or her feelings should be given a great deal of weight, as you cannot make this decision without their approval.

Next, get yourself completely up to date on the laws in San Diego regarding stepchild adoption. It is typically a prudent idea to seek a legal consultation in this matter so that you can be sure you have all the information you need. You may need to find out what action to take if the father is not listed on the birth certificate, or how to broach the subject of having the other biological parent’s rights terminated.

Consider Your Stepchild in the Decision

When you are considering adopting your stepchild, you need to make sure you take the time to think about how old the child is, and how close they currently are to the biological parent you are attempting to replace. The best way to go about this is to speak with the child to see how they feel about the possibility of adoption.

There are several ways in which particular factors can have an effect upon your stepchild’s reaction to the idea of adoption. Often, younger children who do not know the parent well enough yet, have lost a parent to death or never knew the parent to begin with, will be often be comfortable with the concept, since they have never identified anyone but you in your parental role.  The child’s age is a major factor and the role of the biological parent will ultimately determine the level of conversation needed.

An Understanding

Older children, on the other hand, who had a relationship with their biological parent, could find that old emotions still linger.  The parents need to think about whether adoption is worth doing taking into consideration the child’s feelings, this may include a great deal of thought and conversation between the two of you. Before the process, determine whether your stepchild may benefit from an introduction to some counseling, since a child who remembers the previous parent may feel some issues of abandonment, regardless of whether that parent was good, or not.

Minella Law Group Can Help!

If you are a stepparent or a parent and need help with your stepparent adoption Minella Law Group can help guide you and assist you thought the legal process.  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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