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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.

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.

Protecting Yourself after Domestic Violence

Civil Litigation, Domestic Violence, Family, San Francisco, San Francisco Family Law0 comments

ProtectionCalifornia law provides a number of ways to protect yourself from domestic violence.  The most well known method is is Domestic Violence Restraining Orders under California Family Code Section 6300.   However, its important to note that California provides a number of protections available to the victims of domestic violence beyond a stay away and non-contact orders that are designed not only to prohibited contact, but, to thwart individuals who might try and circumvent such court orders.

For example, California Election Code Sections 5166 and 5166.5 provides a series of procedures for making confidential one’s name and address with the county elections voter registrar.  The idea being that, one’s voting registration information (including address) is generally open to the public.  Specifically California Code Section 5166 provides that one has the ability to Petition a judge that such information be confidential.  If such an order is granted then only the California Secretary of State address is listed, and, the California Secretary of State forwards all election materials to the victim.

Given our approaching national election, it is relief to know that such laws in California are already in place to not only protect victims, but, to prevent abusers from gaining information that could be used to continue their miscreant behavior.

The attorneys at Jones & Devoy have experience in all manner of Domestic Violence matters and can assist not only in obtaining a TRO Restraining Order but can help with all other related aspects that crop up during a DV matter such as stalking, sexual assault, or other such behavior.

 

Does my case need a Receiver?

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

san-francisco-courthouse-1549364A Receiver is  a person appointed by the court in a litigation case who is usually charged with taking control of a particular asset and then carrying out the court’s orders with regard to that asset.  For example, if the court orders a piece of real estate sold, and, the court is not confident that the party who owns the real estate will actually comply with the court order, then, a judge may empower a receiver to take control and sell the real property.

In California Receiver’s are considered a more extreme remedy from the court, and, are only used if the more traditional methods such as a levy or writ of execution are ineffective.  This means that it can sometimes be quiet challenging to get a judge to agree that a receiver is needed in a case.  Usually Receivers are only appointed in particular kinds of cases such as:

  1. Interim Corporate Management;
  2. Issues with Real Property such as Rents, Profits, and Sales;
  3.  Actualizing the terms of a judgment for Marital Dissolution;
  4. Undoing Fraudulent Transfers;

However, if a receiver is appointed then it will usually significantly reduce the amount of time and money spent in enforcing an order or judgment.  This is because a getting a receiver appointed basically substitutes in the receiver for the hostile party to the litigation, and so, greatly reduces the logistics in getting compliance with the court order or judgment.

The San Francisco based lawyers of Jones & Devoy have experience appointing receivers and can help you with you divorce, real property division, or corporate dispute to determine if this is a good option for you case. Our attorneys practice throughout the San Francisco Bay Area including: San Francisco, Oakland, Marin, San Mateo and San Jose.

 

Sanctions in California Family Law Cases

Civil Litigation, Family, San Francisco, San Francisco Family Law, Uncategorized0 comments

Although Family law dissolution actions are technically civil actions, and thus, governed by the California civil code it does have it’s own unique code sections that slightly alter the rules of litigation.  For example, California Family Code 271 states that: “[T]he court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

This provision means that the court in dissolution actions has the special power to award sanctions against parties who act in a manner that increases litigation in a case.   Moreover, California courts have ruled that judges have broad authority to award sanctions under this section.  This gives family law courts additional tools to try and encourage litigants in a family law case to act within the bounds of acceptable behavior.  As a practical matter though many attorneys will attempt to use provisions like 271 as a weapon during a dissolution proceeding: frequently asking for exorbitant sanctions as either a scare tactic or to obfuscate the issues at hand.

The attorneys at Jones & Devoy are experienced in the area of family law and have both successfully been awarded sanctions under 271, and, have successfully defended frivolous 271 requests.  Our attorneys are based in San Francisco and can provide assistance throughout the greater bay area including: Oakland, San Mateo and San Jose area.

Getting Divorced When Multiple States are Involved

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

MapIn this age of rapid and free movement between states a common issue that can occur is a divorce across several states. The question that arises in these kinds of divorces is: in which state will the divorce take place? And which state’s laws will govern? This can make a huge difference as the laws between how division of property or support is ordered can be radically different.

Generally, the answer to both of these questions is that the state to lawfully acquire jurisdiction first is the appropriate forum and has their laws govern the proceeding. “Acquiring jurisdiction” usually means that a party lives in the state (a requisite period of time), is able to file for divorce first, and, is able to serve the other party their divorce paperwork first. Thus, a common occurrence is that both parties will file near simultaneously and then each will race to serve the other to acquire jurisdiction first.

The state to acquire jurisdiction first however, does not mean that all issues of controlling law are resolved. If there is a defect in the initial paperwork it can be subject to a motion to quash. Or, alternatively, the state to acquire jurisdiction first could nevertheless be inclined to use the laws of a different state when effectuating the divorce.

Multi-state divorces for same sex couples in particular tend to have an extra layer of complication. For example, although the Supreme Court has ruled that the right of same sex couples is a fundamental right to marry (and thus divorce), many states are simply not equipped to handle all aspects of gay and lesbian divorces. For example, although Kentucky is now compelled to allow gay couples to marry and divorce, the state laws do not contain any legal mechanism to dissolve domestic partnership. So even if a Kentucky court acquires jurisdiction first in a divorce there are aspects that may need to be resolved elsewhere, such as California.

The San Francisco based lawyers of Jones & Devoy have experience in multi-state divorce actions and can help you understand the best way forward in your divorce action even if it is occurring across the country.

Settling a Divorce Out of Court

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

To the finish line!Divorces and dissolution can be very contentious and many couples seek to resolve their case “out of court.”  Practically speaking this still means that legal documents must still be filed in court, but, if successful no court appearances or arguments are necessary.

There are several ways to arrange the logistics of such an “out of court” divorce in California.  This can range from both parties having attorneys who negotiate on their behalf to a couple seeing a single mediator who helps everyone try and reach an agreement.  Ultimately though, to settle “out of court” divorce everyone needs to be in agreement.  Without an agreement then a judge serves as the individual who decides who gets what and how much.   Whether a dissolution case is better served by negotiating or going to a judge, is specific to the matter at hand.

If you are contemplating initiating a divorce in the San Francisco bay area or silicon valley the attorneys at Jones & Devoy are experienced in helping guide your matter.  Our Firm provides services throughout the bay area including San Francisco, Oakland, San Jose, and San Mateo.

Domestic Partnership and Prenuptial Agreements in California

Family, San Francisco, San Francisco Family Law0 comments

AgreementThe interplay of domestic partnership agreements and prenuptial agreements in California is a particularly usual situation.  In California same sex couples have the option of either becoming registered domestic partners or becoming married.  Under California Family Code § 297 gay and lesbian couples who are registered domestic partners are treated identically as married couple.  However, what happens if a LGBT couple wants to become both married and domestic partners?

In California some same sex couples have argued that the rules change.  In Estate of Wilson, (2012) 211 Cal. App. 4th 1284 (a case from San Francisco) one spouse argued that a domestic partnership agreement did not apply to her marriage.  In the case a lesbian couple became domestic partners and executed a domestic partnership agreement outlining who would get what in the event of separation or death.  The couple then subsequently got married but did not execute a prenuptial agreement.  One of the wives then argued that because a separate prenuptial agreement was not executed the domestic partnership agreement was no longer valid.  Her argument was that only prenuptial agreements apply to marriages and she did not execute a prenuptial agreement.  The court found that because gay and lesbian couples are treated equally under California Family Code § 297 a domestic partnership agreement also applies to the marriage.  The court thus upheld the domestic partnership agreement as applying to the same-sex couples’ marriage.

However, a more carefully worded agreement, such as one that simply stated “this agreement applies to both registered domestic partners and marriage” would have saved a lot of trouble and an extend court battle (which included an appeal).  The San Francisco based lawyers of Jones & Devoy have experience in family law, prenuptial agreements, domestic partnership agreements and the special problems that arise for gay, lesbian and bisexual couples.  Our office provides a free initial consultation to help you determine if you need a lawyer for your bay area case.

 

Getting Domestic Violence Restraining Orders

Family, San Francisco, San Francisco Family Law0 comments

Do not enterIn California, Family Code Sections 6200 and 6300 govern when restraining orders may be issued in cases of domestic violence.  “Domestic Violence” is construed very broadly in California and the definition of “abuse” is not limited to merely physical injury.  For example, California cases have found that kicking a dog, or hacking into a lover’s email account can constitute abuse.

Furthermore, the amount of evidence needed to establish a domestic violence restraining order (a restraining order that will protect husbands, wives, or lovers from one another) is much lower than the amount of evidence needed to restrain those without a familial or amorous relationship (ie neighbors or coworkers).  Such laws have been specifically written to ensure that more victims are protected by restraining orders in cases of domestic violence.

In most cases whether the “abuse” at issue is enough to sustain a domestic violence restraining order depends on whether a judge finds the victim has a “reasonable apprehension of imminent serious bodily injury to that person or to another.”  What is a “reasonable apprehension” often comes down to presentation and perceptions of a particular judge.  For this reason having an attorney at a domestic violence hearing can be very important.  The San Francisco based attorneys at Jones & Devoy have experience in prosecuting and defending domestic violence restraining orders throughout the bay area.

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