Saturday, October 18, 2008

Adoptions in Temecula: Adoption Information for Step-Parents

An adoption action the legal process whereby an adult who is not biologically related to a child acquires all the rights and responsibilities as if the child was naturally that parent's. Once an adoption is finalized, the adopting parent is obligated to love and support the adopted child as the child was that parent's own biological child.


There are two types on adoptions: step-parents adoptions and independent adoptions. The most type of adoption is when a step-parent assumes the role of the natural parent. This is commonly called a step-parent adoption.


In these types of cases, one of the parents is already the natural parent of the child, and only the step-parent is adopting the child. At the end of the adoption process, one of the natural parents still has rights over the child, one parent's rights are terminated, and the step parent steps into the shoes of the parent whose rights were terminated.


If the step-parent later divorces the natural parent, both parents are treated equally, and neither parent will be given preference in awarding custody. Each parent must also support that child.


A step-parent adoption requires the filing of a lawsuit in either Riverside or Hemet. Once the lawsuit is filed, a home study will be conducted, and the natural parent whose rights are being terminated have a chance to object. If the natural parent objects to the adoption, there is a trial. If the court determines it is in the child's best interest to be adopted, the step-parent's petition will be granted. Generally speaking, the process takes six to nine months.


Adoption proceedings are complicated and should not be attempted without the help of an experienced adoption attorney. If you are considering an adoption, you are welcome to contact our office to set up a free consultation.

Friday, September 19, 2008

Waiting Period in an Amended Petition

Dear Famularo & Associates Hello, I have been reading the information your website has to offer, but I am unable to get an answer there. So, I am writing to find an answer tothis... I filed my divorce in March of 2008... the respondant was served 5 days later. My husband did not respond within 30 days, and then I filed and re-served him with an Amended Petition for a divorce. My question is this... I know there is a required waiting period of six months. Is my final date six months after original service or does my waiting period STARTED OVER again from the time I re-served him with the Amended Petition? Thank you, E.J. in Murrieta Dear E.J. Unfortunately, once you file and serve the Amended Petition, it is as though the original Petition was never filed. Thus, your waiting period starts over again from the time the Amended Petition is served. -- Famularo & Associates

Monday, April 14, 2008

Asset Protection in a Marriage

Dear Attorney: I just got married two months ago. I forgot to ask my husband to sign an agreement that doesn't allow him to ask me (if we divorce) for half of whatever I earn. I also do not feel that I should have to pay spousal support. I currently own nothing, but I will shortly because I am in the process of buying a house. I am the only person in the marriage who earns money, because my husband is a full-time student. Is there any way that I can still get something signed that will protect my assets? -- H.M. Dear H.M.: In California, when a couple files for divorce, there are certain rules the court must follow in resolving issues surrounding spousal support and division of property. These rules include the general principle that anything acquired during the marriage through time, effort or skill is community property and must be divided equally. However, the parties can agree at any time to settle their disputes in any way they believe is fair. It is only if the parties are unable to settle the terms of their divorce without the help of a judge that the court must apply California family law when making court orders. Sometimes a couple decides that they do not want the general principles of California family law to apply to them. Perhaps one party has a large estate, or sometimes they just think it is practical to keep their assets and their debts separate. Other times, one party has already experienced a bitter divorce and wants to avoid a costly legal battle by making sure as many terms as possible are agreed to beforehand. If they both desire, a couple may agree in advance how many things will be decided in the event they divorce. These agreements generally include how property is to be divided, how debts are to be divided, and the amount and duration of spousal support (if any). If the couple enters into such an agreement before marriage, it is called a prenuptial agreement. Moreover, these types of agreements may be entered into at any time. If a couple enters into such an arrangement after marriage it is called a post-marital agreement. If you desire to keep your property separate from your husband's, and if you do not want to pay your husband spousal support in the event you divorce, you need to have an agreement drawn up setting forth those terms. If your husband refuses to sign the agreement, then the general principles of family law will apply, including the rules concerning community property and spousal support. If your husband does sign the agreement, unless the agreement specifically states otherwise, the agreement will only be effective from the date the agreement was signed forward. So long as the agreement is properly drafted and signed by al the parties, the court will be bound by the terms of your agreement and not by the general rules of California family law. Even if your husband changes his mind during the divorce and decides to pursue spousal support and a community property claim, the court will be unable to make that award so long as the agreement is valid. For this reason it is important that you make sure you have the agreement drafted by a competent family law attorney. These types of agreements are tricky because the law in this area changes quickly. If the agreement is not drafted properly, it will not be enforceable in court, and the general rules of California laws will be applied. -- Famularo & Associates

Friday, March 28, 2008

Step Parent Adoptions

A step parent adoption is a form of adoption where the new spouse steps into the legal role of the parent. After the process is completed, the adopting step parent has all the rights and all the responsibilities of a biological parent. If the marriage later ends in divorce, the adopting step parent will be obligated to pay child support, could petition the court for sole custody of the child, and will be allowed visitation if not successful.

In order to complete a step parent adoption, the parent will be replacing the role of one of the child's natural parents. If the natural parent is deceased, the step parent must simply produce the death certificate. If the natural parent is alive, however, that parent's rights must be terminated before the court will allow the step parent to adopt the child. This requires the filing of two lawsuits, one for termination of parental rights, and a second one for permission to adopt. The spouse of the adopting step parent must consent to the adoption. Additionally, if the child is age twelve years or older, that child must consent to the adoption.

When the lawsuits are filed, the natural parent and any other relative of the first degree must be notified. This includes the child's adult siblings, grandparents, aunts, uncles, and of course, the natural parent whose rights may be terminated. The court then orders a home study to determine the child's best interest, and includes a background check of all parents. Eventually, if there is an objection, there will be a court trial. The entire adoption process generally takes approximately six to nine months from start to finish.

Sunday, February 10, 2008

Visitation in Califorina

The following is a real question concerning child visitation published in the Temecula Valley Newspaper, and answered by the family law and divorce attorneys of Famularo & Associates:

Dear Famularo & Associates:
My husband and I separated about 2 weeks ago, and he has since moved to Tennessee. We have two small children ages 3 and 4 years. There is no dispute about child custody. We both agree the children should continue to live with me in California. Although we haven't filed for divorce yet, we have agreed on the amount of child support and spousal support he will be paying me. My husband wants visitation with the children in Tennessee for two weeks. I don't know if I should send them. He is a great father, but what if he doesn't give them back to me after two weeks?

--GH in Murrieta

Dear GH-

Your fear about your husband not returning custody of your children to you after two weeks is a valid one. While it is likely the court would order your husband to return the children if he failed to do so, the outcome of any court hearing is always unpredictable. There is simply no guarantee the court would order your husband to return custody to you if you to allowed visitation in the state of Tennessee without first obtaining a court order. In theory, you could write up a visitation agreement on a piece of paper and insist you both sign it before sending the children to Tennessee. However, this, too, is risky. Quite frankly, if you send your children to Tennessee without an actual court order, you risk losing custody of your children forever.

You should not send the children to visit their father until after a divorce has been filed and custody and visitation orders have been made. Until you file for divorce, the court does not have power over custody of your children. Until the court makes custody and visitation orders, you have no guarantee you will get your children back from Tennessee. You need a court order for custody and visitation in your hand before you put your children on an airplane. Once a divorce is filed, you can either type up a custody and visitation agreement, sign it, and then have the court sign and file it; or attend a court hearing and have the judge make orders in open court. Either way, until you obtain a court order for visitation, you should not send your children to Tennessee.

Once a divorce is filed, the court must decide visitation for your husband. In deciding visitation, the court will try to establish a court order that ensures frequent and continuing contact with both parents. The court will likely order you to send your children to visit their father in Tennessee at some point in the divorce proceeding. A two week visit for your children is reasonable. Unfortunately, your children are not old enough to travel on their own, so someone will have to escort them on the airplane. Since your husband is the one who moved away, he may have to pay the children's airfare to and from the visit (but not always). As for who pays for the airfare of the escort, and which parent will be ordered to escort the children on the airplane, this will depend upon you and your husband's relative circumstances. For instance, if you are a stay-at-home mom, and your husband is working full time, the court might order you to escort the children (because you have the time), and your husband to pay for your airfare (because he has the money). If your husband's mom lives in Tennessee and frequently visits California, perhaps the visits can be timed so Grandmother escorts the children on the plane. In short, when making visitation orders, the court will do what it thinks is fair. In addition to periodic visits in Tennessee, your husband will have liberal visitation whenever he visits California.
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If you have any questions about custody or visitation, or any other divorce or family law related issue, please do not hesitate to contact the family law lawyers at Famularo & Associates to set up a free consultation. Famularo & Associates serves the geographical areas surrounding Hemet, Temecula, Murrieta and other parts of Riverside County, California.

You may also visit one of our web sites for additional information: http://www.temeculadivorce.com/index.html or http://www.familylawyerintemecula.com/

Saturday, February 9, 2008

Child Support and Spousal Support in California

The following excerpt is a real family law question and answer which was recently published in the local paper, the Temecula Valley News:

Dear Famularo & Associates:
I have a question about child support. My husband quit his high-paying job to take a DJ job at some radio station where they pay him nothing. It's his life dream, I know, but we have four kids and now he wants a divorce. I have always been a stay at home mom and now I have to go to work. I still think he should pay child support, even though he makes next to nothing. We own our own home and it's almost paid off after 28 years of mortgage payments. I don't want to lose the house, too! He wants to sell it and divide the proceeds. I want him to give me the house because he is the one who chose to quit his job and the children and I shouldn't have to pay him any money when we divide our property. What do you think?
NM in Lake Elsinore

Dear NM:
The court in a divorce proceeding has the ability to "impute income." This means that the court can base a support order (either for spousal support or child support) on your husband's earning ability, rather than on his current salary of zero. The law is that a person cannot voluntarily quit his or her job for a lower-paying job. A spouse's first obligation is to pay child support and spousal suport for the benefit of his or her family. If you husband quit his job very within the past month or two, this would probably anger the court, and the judge would calculate your child and spousal support as though your husband continued to earn his high income.If you husband quit his job in the more distant past, the situation becomes more complicated. You would then have to prove to the court that there are still high-paying jobs available in your husband's field that he is qualified to take. This is done by hiring a vocational examiner. This is a job counselor who would examine your husband's education and experience and tell the court what he or she believes your husband's current earning ability is.

The issue of the house is trickier. In deciding the division of property, the court must ensure that all assets must be divided fairly and equally, but you could trade another asset for your husband's one-half equity in the house, such as your interest in a stock or pension plan. If your husband had no way to pay you either spousal support or child support, you could also establish a child support account for security of up to one year's worth of child support. Rather than an actual bank account, you could ask the court to deduct his equity in the home from the money he owes you for child support and spousal support.
-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining a child support order, spousal support order, or if you need additional divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at Famularo & Associates by calling: (951) 816-9543, or e-mail us at info@temeculadivorce.com.

You may also visit one of our web sites: http://www.familylawyerintemecula.com/ or http://www.temeculadivorce.com/ or http://www.familylawyerintemecula.com/

Thursday, January 10, 2008

Alienation of Affection- Real Child Custody Questions

Dear Famularo & Associates: My wife and I divorced a couple of years ago and it wasn't very amicable. We didn't agree on anything and our children were right in the middle of this. We ended up with joint custody of our son (12) and our daughter (10). We see each other frequently because of the kids. I love our kids just as much as she does and I make a point not to speak poorly of her in the presence of the children. I think she should do the same, but she doesn't. I recently got engaged and I'm going to get married in February. My fiance is a decent person and she is interested in having a meaningful relationship with the kids. My wife is constantly saying horrible things about me and my fiance to our kids to the point that it's upsetting them as well as me and my fiance. I have heard that I might be able to obtain full custody of the children if I can prove alienation of affection. I am not sure this is something I should do. -- Mike C. in Temecula Dear Mike: Unfortunately, when two people have a child it binds the parents together for the rest of their lives. Virtually every court order contains a clause which states neither parent should make disparaging remarks about the other in the presence of the children. This is what we call an "unenforceable order." In order to enforce this type of order, there would have to be a policeman monitoring every word your ex-wife said. The policeman would then have to arrest your ex if she made any negative comments about you. Since no one is monitoring the mother of your children, she can say pretty much anything she wants without many legal ramifications. The only thing you can do it to try to obtain sole physical custody of your children based upon alienation of affection. However, it is a lose-lose situation for you. If you are not successful getting custody, your wife will try to ruin your relationship with your children even more. If you win, the children will probably resent the fact that you took them away from their mother. Sadly, it is almost impossible to completely protect a child from his or her own parent. You need to know that you are doing the right thing, though. Do not take your ex-wife's bait and make negative comments about her simply because she is making them about you and your fiancee. Your children are of an age now that they know exactly what is going on. They can see for themselves that their mother is the problem, and usually this type of behavior will backfire against. No matter what you ex-wife says, your fiancee should stay out of it. Any comments she makes, anything she does will usually be met with resentment by your children. Since the divorce, your children are struggling with only being able to see you half the time. They are also undoubtedly struggling with their mother's constant negative comments about you. Any attempt by your fiancee to "fix" the problem will make the children feel that she is either picking on their mother or forcing them to compete with her for your affection.Your children will soon be old enough to have a say in custody and how often they see each parent. The good news is that teenage children almost always end up with the parent who takes the higher ground. So, be patient and hold your tongue. Show respect for your children by not disparaging their mother. Your children will not be young forever, and once they are a little older your behavior will pay off in a the form of a close, lasting bond with your children. --Famularo & Associates