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LGBT Friendly Modifications to Adoption Law in California

Adoption, Family, San Francisco, San Francisco Family Law, Uncategorized0 comments

The California Legislature has taken care to streamline the Adoption Process for the unique needs of same sex couples where frequently one parent is not the biological parent of the child.  Before the amendment of the law a stepparent where one parent came into a child’s life later, versus a “stepparent” who was on the birth certificate (as is typical for same sex couples) were treated at law the same.  This meant that if a gay or lesbian couple had a child together, and were both on a child’s birth certificate, the court was legally required to conduct a home investigation and hold a formal hearing for the adoption.

Now, fortunately, California has streamlined the entire process so that an investigation and formal hearing are not necessarily required for confirmations of parentage.  This is good news for LGBT couples!  With the change of leadership in the White House queer couples are well served to make sure that they have lined up as many legal protections establishing that they are the lawful parents of their children.

While not every adoption case can be done without an investigation or court hearing, the attorneys at Jones & Devoy can help you tee up your case to maximize your chances of a smooth process.

Tenancy in Common Agreements in California

Arbitration, Business and Corporations, Civil Litigation, Real Estate, San Francisco0 comments

houseTenancy in Common Agreements (also known as a TIC Agreement) are agreements between co-owners of real property.  Although co-owners always begin a purchase with the best of intentions, unfortunately disputes between co-owners occur.  Without an agreement co-owners of real estate are forced to go through an action called a “Partition Action.”  Partition Actions are a special kind of court proceeding specially designed to divide up real property as between co-owners.

While it is fortuitous that a special kind of action exists, like any court action, the process is long and arduous.  Having a well worded agreement then is essential to avoid a lengthy court battle.  Often an Tenancy in Common Agreement will attempt to not only preemptively determine the rights or parties, but, will also provide a procedure if an disagreement arises.  Often this involves an agreement to mediate or arbitrate so that the parties are not stuck with the long wait times associated with court battles.

Generally these agreements should be negotiated and discussed before the purchase of a piece of Real Property.  The idea being that if the parties cannot agree on the governing of piece of real property then it is advantageous for the parties to have an opportunity to cancel the purchase.

While a TIC Agreement requires an additional initial investment, often the amount of headache it can save down the road far, far outweighs the up front cost. The San Francisco based real estate attorneys can assist with preparing or reviewing a TIC Agreement to make sure your rights are protected.

 

Default Law in California

Civil Litigation, Dental Malpractice, Internet, Medical Malpractice0 comments

calendar-1192688If you are served with a lawsuit, and, then you or your attorney fail to respond then the other side is likely to take a default against you. Once a default is entered a party is unable to make any kind of appearance to contest a case on the merits.  Thus, it is critically important to never let a default get taken against you.

If, for some reason, a default is entered against you, there is a motion that can sometimes set aside the default.  Specifically, Motions to set aside a judgement in California are brought under California code of Civil Procedure 473.  473 provides that a default may (not shall) be set aside if you can demonstrate that the default was taken because of: mistake, inadvertence, surprise, or excusable neglect.

Really what these boil down to is a legitimate reason why an answer was not filed:  your lawyer was hit by a train and was in the hospital.  The copy of the lawsuit that was served was illegible, so, you could not actually tell where you had to file your response.  Generally, “I forgot” is not a valid excuse.

Needless to say it is far, far, better to have to avoid trying to fill one of these kinds of requirements, than to have to spend the time money, and extra effort to file such a motion. Thus, the bottom line is that when you receive notice form a lawsuit.  Reach out to an attorney immediately.  Ask that attorney when you need to respond by, mark this date on your own calendar, and make sure a response is filed by the appropriate day.

The San Francisco based bay area attorneys of Jones & Devoy provide experienced attorneys who can help make sure that you avoid pitfalls before they happen, or, if such a disaster has already occurred, they will provide practical advice on how to approach the problem.

Terminating Parental Rights for an Adoption in California

Adoption, Civil Litigation, Family, San Francisco, San Francisco Family Law0 comments

In CalThe Handsome Familyifornia one can have at most two parents.  This means that, for most step-parent adoptions to go through, one of the biological parents’ parental rights must be terminated.  There are multiple ways to terminate parental rights depending on the exact circumstances (for example whether a father is a presumed or alleged father).

California Family Code Family Code Section 7820 provides that a prospective adoptive parent may file a petition to terminate parental rights so that the adoption may take place.  A petition to terminate parental rights under 7820 can occur for multiple reasons such as: child abandonment or mental disability.  When bringing a petition of this nature however it is important to know that California courts have determined that parents whose rights are to be terminated can be given a free lawyer.  So, such petitions must be filed with care.

The complexity of terminating parental rights puts extra emphasis on the importance of properly conceiving through artificial insemination in California.  California Family Code 7613 provides for a way for a child, who is conceived through artificial insemination, to have only one parent upon birth.  This substantially shortens and simplifies the process  for a step-parent adoptions, and so, should be considered whenever possible.

From Sonoma to San Jose the San Francisco based bay area attorneys of Jones & Devoy have experience in all aspects of adoption and family law including Petitions to terminate parental rights.  They can not only help you avoid possible pit falls, but, can provide sound advice on the best way to meet problems that are already present.

What is an Ex Parte Application?

Civil Litigation, Family, Medical Malpractice, San Francisco0 comments

ProtectionEx Parte literally translates to “with the interests of only one party.”  Legally, it is a situation where one party submits an application that requests orders from a judge on an extremely expedited basis (ie. a wait of only 25 hours instead of the usual weeks or months to get a ruling), and, sometimes that the other side not be given an opportunity to be heard on the issue.

As you can imagine, to most non-lawyers, such an application sounds pretty nice: it is fast and the other side either does not get to respond, or, has very little time to respond.  However, legally speaking, in California an Ex Parte application is much more difficult to get granted than your average motion.  This is because judges are extremely cautious about making orders when all of the facts are not before them, or, the opposing side does not have a chance to state their case.

Thus, Ex Parte orders are usually only granted in very extreme and emergency cases.  This includes cases where domestic violence or other imminent physical harm is present.  Or, cases where if immediate orders are not made then permanent and irreparable harm will be visited upon the party.   Permanent and irreparable harm means that money could not compensate someone for the loss later on down the road.  Moreover, each county in the San Francisco bay area (from Santa Clara to Alameda to Marin) has their own process on the intake when handling an Ex Parte Applications adding further difficulty to the process.

That said, Ex Parte applications may be filed in almost any kind of case, from Real Estate disputes, to medical malpractice, to family law and domestic violence actions.   The San Francisco based bay area lawyers of Jones & Devoy have experience in filing Ex Parte applications, and, can advise if one is right for your case.

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    Mr. Jones has an extensive background in both general litigation and family law as well as experience in various business and transactional matters…

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