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Child Custody in California

Custody, Family, San Francisco, San Francisco Family Law, Uncategorized, Visitation0 comments

The California Family Code provides that Custody and Visitation of a child shall be ordered according to the “best interests” of that child.  “Best interests” however, is a difficult to define term.  Often, both parents will believe that it means they should be the primary parent, and, so, a judge is left to decide with only this broad guideline.

While legally speaking there is no presumption in favor of joint custody, often, judges tend to gravitate towards joint custody and equal timeshare; the idea being that spending as much time with both parents as possible is usually in the child’s best interest.

This does not always mean that joint custody and equal visitation will be ordered though.  What are the considerations that result in a judge ordering sole custody or a majority timeshare to one parent? Here are just some of the many, many, considerations a court may take into account:

  • Circumstances where a parent has committed domestic violence.
  • Circumstances where the parents are separated by distance such that equal custody and visitation is impracticable.
  • If one parent does not have the mental or physical health to care for their child.
  • If one parent refuses to obey custody orders.
  • Lifestyle choices of a parent interfere with their ability to care for a child.
  • The wishes of the child (if the child is old enough).
  • The living environment the parent can provide to the child (though “wealth” is not considered).
  • The parents agree otherwise.

As you can see from just this short list, there are many considerations a judge can take into account when determining what is “best” for child.  In this way the family code is designed to give a level of flexibility to order custody and visitation based on the particular situation.

The result of the code being written in this manner is that child custody and visitation matters are extremely fact intensive: because a judge can consider so many different facts your child custody case depends on gathering up as many facts as possible and then trying to present the most powerful ones in order to convince the judge of your perspective.

The attorneys at Jones & Devoy have experience in child visitation and custody cases throughout the San Francisco Bay Area and can help you understand what are realistic goals and possible outcomes. From Oakland to San Francisco to  San Mateo to San Jose family law courts apply the law slightly differently, and, knowing the court and law is critical to the success of your case.

Special Issues in LGBT Divorces

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

Because of the patchwork way that laws emerged for gay, lesbian and queer couples, undoing a marriage or domestic partnership can present many unique challenges.   For example, certain states like Kentucky, explicitly do not recognize unions similar to marriage such as civil unions or registered domestic partnership.

So, while the recent supreme court decisions finds an ultimate right to marry, it has not found an ultimate right to a domestic partnership or civil union.  The bizarre result of this is if you are getting divorced in Kentucky there is a chance that the judge in Kentucky will not dissolve your registered domestic partnership.

Thankfully, California has law that any party may file in the state to dissolve a registered domestic partnership or marriage if their home jurisdiction will not recognize them.  While California’s progressive laws certainly reduce the number of issues that might come up in a same sex divorce or dissolution it cannot eliminate them all.

Than San Francisco based lawyers of Jones & Devoy have experience helping members of the LGBT community navigate the ever changing landscape of same sex law.

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.

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.

TIC Agreements in San Francisco

Uncategorized0 comments

A House DividedTIC Agreements also know as “Tenancy in Common” Agreements are contracts between individuals to jointly own a piece of real property that was not necessarily built for multiple discrete owners.  For example, if two couples buy a two story house and one couple lives on the top story and the other lives on the bottom, even though they are no actually separate condos, those couples are probably in TIC.

The use of TICs, to be co-owners of property, has flourished since the rise of the costs in the housing market.  On the practical side such Tenancy in Common co-ownership allows for the purchase of a piece of property that would otherwise be unattainable.  Legally however, being co-owners of piece of real property can create many complications.  For example many time the multiple owners of single piece of property will share a mortgage, thus, if one of the owners stops paying the mortgage then all the co-owners of the real property are in jeopardy. Moreover, if a house in not properly subdivided then by default each tenant has a right to use the whole property even a part even if there was an understanding that each would have their own side of the house.

Whether you a contemplating a TIC agreement, or, find yourself dealing with rouge TIC members, it is almost always worthwhile to consult with an attorney.  The attorney of Jones & Devoy have experience litigating TIC Agreements in San Francisco and can make sure that your interests are protected.

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.

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.

Child Conception and Adoption for Lesbian Couples in California

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

Happy FeetChild conception for lesbian couples is a multi-step process that can be fairly straightforward when done with planning and deliberation but can create very complicated situations if done in a nonchalant manner.  Like most of the legal system, statutory and case law is often a step or two behind the realties facing gay and lesbian couples.  For lesbian couples, the answer to this problem generally lies in creating redundancies within the child conception process. Usually such conception involves three steps: Pre-insemination planning, insemination, and then post-birth adoption.

For example, while almost all hospitals will now allow a second mother/stepparent to place her name on the birth certificate, this alone will not establish that the non-biological mother has parental rights or obligations over the child.  To this end, if insemination occurs incorrectly, and there is no sperm donor agreement, the biological father could very well end up being the second parent legally speaking.  Thankfully, Code sections such as Family Code Section7613 lay out a precise method for insemination to prevent such mishaps from occurring.   By understanding such laws and requirements a gay or lesbian couple can minimize the pitfalls inherent in the lagging legal system.

LGBT couples face these unique challenges when contemplating having child, and, although challenging, are not insurmountable.  The San Francisco based attorneys of Jones & Devoy have experience with same sex couples during child conception and adoption and can you and your family plan the best route.

 

How do I Legally Change my Gender in California?

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

GenderCalifornia Health and Safety Code Sections 103430 and 103435 control the process for legally changing one’s gender in California.  Procedurally this process developed parallel to name change Petitions and so the two are often combined and require may of the same steps.

For example, change of gender Petitions, like name change Petitions, must be published in a newspaper for a set amount of time before a judge will hear the matter.  In addition, both gender and name change Petitions require a showing that the Petition is not being done for an unlawful purpose such as avoiding registration as a sex offender.  However, change of gender Petitions have additional requirements.  For example, one who is attempting to legally change their gender must submit an affidavit of a licensed physician attesting that the physician is assisting the petitioner with “the person has undergone clinically appropriate treatment for the purpose of gender transition, based on contemporary medical standards.”

A failure to follow technical requirements like these can cause a Petition to fail.  The San Francisco based attorneys of Jones & Devoy have experience in helping members of the LGBT community including those who wish to legally change their gender.  Although the legal framework to change one’s gender legally is limited to the standard socially acknowledged binary boxes, such a change can still be of significant value to achieving the basic human dignity that should be afforded to all whether one is transgender, cisgender or otherwise.

Getting a Meritless Lawsuit Thrown Out!

California Arbitration Provisions, San Francisco, Uncategorized0 comments

GarbageThe American legal system is built around the idea that all sides should have adequate time and ability to be heard.  The greatness of this system is that everyone can truly have their “day in court” if they really want it.  The disadvantage, though, is that everyone can get their day in court even if they don’t necessarily deserve it.

The meritless lawsuit in America has an unusual sticking power because using the legal process to prove that it is indeed meritless is often time more expensive than merely paying such a lawsuit to go away.  There are, however, several motions that can be filed early on in proceeding which are able to quickly dispose of certain kinds of meritless suits.

For example, the function of the demurrer (California Code of Civil Procedure 4310.10) is to test the legal sufficiency of the pleading.  In ruling on a general demurrer, the court will consider the face of the pleading and facts of which it may take judicial notice.  Thus, if a lawsuit on it’s face shows that it is legally without merit, then the pleading itself can be thrown out.  This attack though only works when the lawsuit itself states that the alleged harm occurred beyond the statute of limitations, then the lawsuit may be attacked by a demurrer.

On the other hand, if a demurrer is successful most courts will allow the party in question to simply fix their pleadings (if possible). Thus, when improperly used, a demurrer may only serve delay the entire lawsuit.  It is for this reason that the use of legal tools must be tempered with common sense to assure the best use of your time and money.  The San Francisco bay area attorneys of Jones & Devoy make it a point to offer practical legal solutions whenever possible.

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