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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.

 

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.

 

Dividing Real Estate Between Owners in the San Francisco Bay Area

Civil Litigation, Real Estate, San Francisco0 comments

Dividing propertyIf two or more people own a piece of real property (real estate) and cannot agree on how to divide the property, then the legal remedy is what is known as a partition action.  A partition action is a lawsuit between co-owners of real property, that seeks an judgment determining each co-owners interest and then ordering that the property either sold physically divided in proportion to the interest.

Generally speaking, every step in the sales/division process is subject to Court supervision.  Because most judges prefer not to deal with such minutiae they will usually appoint one or more “Referees” and will give them detailed instructions on how to divide or sell the house, condo, or other real property at issue.

Although the Referee(s) will usually be in charge of most aspects of the sale or division process, they will often rely on other outside experts.  For example, many referees will typically consult with a broker before setting a sale price.  The reason for this is that the parties can try and challenge the referee’s actions, and, by consulting with such experts, they help insure that their decisions will not be overturned by the judge.

If this process sounds overly complicated and stilted it’s because it is.  Whats more the parties typically have to pay for costs like the referee, so, it is usually in the co-owner’s best interest to work out a deal outside of court.   If you own a piece of property with a hostile or absent co-owner the San Francisco attorneys of Jones & Devoy have experience in navigating division of such property in and out of court and can help guide your case to practical solution.

 

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.

Victory for Gay and Lesbian Couples in Adoption Law

Adoption, San Francisco, San Francisco Family Law0 comments

LGBTAnother victory in same sex law came down this week as the U.S. Supreme Court unanimously found that Alabama’ refusal to recognize same sex adoptive parents is unconstitutional!

Although the court couched the ruling in terms of the constitutional right of full faith and credit, not the inalienable rights of gay and Lesbian couples, the ruling is nonetheless a victory.

The Court found as follows: “[The Alabama court’s analysis] is not consistent with this Court’s controlling precedent. Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction ‘is to be presumed unless disproved.’ There is nothing here to rebut that presumption.” The Alabama court’s reading, the Court added, “would comport neither with Georgia law nor with common sense.”

What does this mean for you?  It means that if you are a Gay, Lesbian, or Queer couple in the San Francisco bay area and you obtain an order or decree of adoption (under the laws of California) then every other state must acknowledge the adoption as valid, even if that state itself would try and deny the adoption.  The attorneys at Jones & Devoy have experience helping  same sex couple adopt and can help you secure your rights for your family.

Dental Malpractice in California and San Francisco

Civil Litigation, Dental Malpractice, Medical Malpractice, San Francisco, Uncategorized0 comments

Teeth need workDental Malpractice actions in California and the San Francisco Bay Area are a subset of medical malpractice law.  Specifically, a dental malpractice action is bringing a lawsuit against a dentist, orthodontist, periodontist, or other oral surgeon for practicing dental care in a negligent manner.

In California “negligence” means that the dentist, periodontist, or other medical provider performed their care below the generally accepted standard in the surrounding area.  So, for example, if one was bringing a lawsuit in San Mateo or San Francisco, the standard as to whether malpractice was committed would be by comparing the dental work that was performed (or not performed) with what other dentists in northern California would do.  This means that it is usually not very helpful to have the opinion of a dentist in Florida when bringing a lawsuit in the San Francisco or greater bay area (Oakland, Contra Costa, San Mateo, Marin, San Mateo, or San Jose).

Furthermore, in California it has been determined that in order to bring a lawsuit and sue a dentist, a plaintiff is required to have an expert who will say (to reasonable degree of medical certainty) that there was negligence.  The bottom line is that because dental malpractice actions are grouped in with regular medical malpractice they are subject to all of the laws and regulations that exist in medical malpractice cases.

Thus, it is always a good idea to consult with an attorney/lawyer before commencing a medical malpractice action against a dentist, periodontist etc.  The San Francisco based bay area attorneys of Jones & Devoy have experience with Dental Malpractice actions in California and can help you determine if you have a case and if it is best to bring an action.

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