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Family Law

Adoption

The taking of a child into one's family, creating a parent to child relationship, and giving him or her all the rights and privileges of one's own child, including the right to inherit as if the child were the adopter's natural child. The adoption procedure varies depending on whether the child comes through an agency which handles adoptions or comes from a stranger or a relative, and on the age of the child and the adoptive parent or parents. The hopeful adoptive parent must file a petition, which may be handled by the adoption agency. Natural parents must either give binding written permission for the adoption or have abandoned the child for a lengthy period of time. An investigation will be made by a county office (probation or family services) as to the future parents' suitability to adoption, their relationship status, their home situation, and their health, as well as the best interests of the child. If the child is old enough to understand the procedure he or she may have a say in the adoption. Finally there is a hearing before a local court judge (called "surrogate" in some states) and an adoption order made. In many states a new birth certificate can be issued, with the adoptive parents listed as the parents. If there is an adoption of an adult, the adopting adult usually must be several years older, based on the state law. In recent years, there has been much controversy over adoption by single parents, including gays and lesbians, with the tendency toward allowing such adoptions, provided all other criteria beneficial to the child are met.

Annulment

A judgment by a court that retroactively invalidates a marriage to the date of its formation.

An annulment differs from a Divorce, a court order that terminates a marriage, since it is a judicial statement that there was never a marriage. A divorce, which can only take place where there has been a valid marriage, means that the two parties are no longer Husband and Wife once the decree is issued.

THE LITTLE LAW BOOK
by Miriam Kurtzig Freedman, J.D

This book should be useful to everyone, including first year law students, who are trying to better understand “the language of the law.”

Jeff Hughes

Table of Contents

An annulment means that the individuals were never united in marriage as husband and wife.

Various religions have different methods for obtaining a church divorce, or annulment, but these procedures have no legal force or effect upon a marriage that complied with the requirements of law. Such a marriage must be legally annulled.

Child Custody

A court's determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor (child) under 18. Child custody can be decided by a local court in a divorce or if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison or dangerous to the child's well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent or an orphanage or other organization or institution. While a divorce is pending the court may grant temporary custody to one of the parents, require conferences or investigation (in some states, if the parents cannot agree, custody is automatically referred to a mediator, commissioner or social worker) before making a final ruling. There is a difference between physical custody, which designates where the child will actually live, and legal custody, which gives the custodial person(s) the right to make decisions for the child's welfare. If the parents agree, the court can award joint custody, physical and/or legal. Joint legal custody is becoming increasingly common. The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The court can always change custody if circumstances warrant.

Child/Spousal Support

Court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the dollar amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.

Divorce

The termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states, including California) by one party. Some states still require at least a minimal showing of fault, but no-fault divorce is now the rule in which "incompatibility" is sufficient to grant a divorce. The substantive issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time (as little as six weeks in Nevada). In most states the period from original filing for divorce, serving the petition on the other party and final judgment (or decree) takes several months to allow for a chance to reconcile.

Domestic Violence

The continuing crime and problem of the physical beating of a wife, girlfriend or children, usually by the woman's male partner (although it can also be female violence against a male). It is now recognized as an antisocial mental illness. Sometimes a woman's dependence, low self-esteem and fear of leaving cause her to endure this conduct or fail to protect a child. Prosecutors and police often face the problem that a battered woman will not press charges or testify due to fear, intimidation and misplaced "love." Increasingly domestic violence is attracting the sympathetic attention of law enforcement, the courts and community services, including shelters and protection for those in danger.

Family Drawing

Guardianship

A person who has been appointed by a judge to take care of a minor child or incompetent adult (both called "ward") personally and/or manage that person's affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian.

In the case of a minor, the guardianship remains under court supervision until the child reaches majority at 18. Naming someone in a will as guardian of one's child in case of the death of the parent is merely a nomination. The judge does not have to honor that request, although he/she usually does.

Sadly, often a parent must petition to become the guardian of his/her child's "estate" if the child inherits or receives a gift of substantial assets, including the situation in which a parent gives his/her own child an interest in real property or stocks. Therefore, that type of gift should be avoided and a trust created instead. While the term "guardian" may refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs, this is more often called a "conservator" under a conservatorship.

International Prenuptial Agreement

Also called an antenuptial agreement, a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been "taken" by a previous spouse.

Interstate Child Custody

Almost every state has enacted a statute known as the Uniform Child Custody Jurisdiction and Enforcement Act, which sets out standards for courts to make custody determinations and standards for when a court must defer to an existing determination that originated in another state. Of the fifty states, only Massachusetts and Vermont currently do not follow the Uniform Child Custody Jurisdiction and Enforcement Act.

Juvenile Delinquency

Antisocial or criminal behavior by children or adolescents.

Legal Separation

A court-decreed right to live apart, with the rights and obligations of divorced persons, but without divorce. The parties are still married and cannot remarry. A spouse may petition for a legal separation usually on the same basis as for a divorce, and include requests for child custody, alimony, child support and division of property. For people who want to avoid the supposed stigma of divorce, who hold strong religious objections to divorce or who hope to save a marriage, legal separation is an apparent solution. With more states allowing no-fault divorce, the use of separation agreements and informal separation, legal separation is rarely used.

Marital Settlement Agreement

Mediation

Alternative to Costly Divorce Proceedings
Concerning Issues of Spousal Support, Parenting Plans, Division of Property

What is Mediation?

In a mediation procedure, a neutral party, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. (Any settlement is recorded in an enforceable contract??) Parties can explore a variety of options toward resolving their personal disputes with a hands-on problem solving approach.

Why Should I Choose Mediation over Litigation?

Experience shows that litigation often ends in settlement. Mediation is an efficient and cost-effective way of achieving that result while preserving the integrity of the individual parties.

MEDIATION VS. LITIGATION

Mediation

  • A non-binding procedure controlled by the parties
  • Individual parties are the final decision makers.
  • Parties are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests.
  • Mediation is a confidential* procedure
  • Involves minimal risk for the parties involved and generates significant benefits.
  • *within boundaries of city and state law

Litigation

  • A binding procedure controlled by an outside element
  • Judges are final decision makers.
  • Parties are bound by judgement, whether or not it meets their interests.
  • Litigation is a matter of public record.
  • Involves maximum risk for the parties involved. Generates no significant benefits.
  • Mediation Sessions take place on Fridays at 3PM

$300/Hour - 2 Hour Minimum - Payable in Advance
Mediations can take place at:
Legal Grind® - 2640 Lincoln Blvd., Santa Monica, CA 90405
or, at the law offices of participating attorneys

About our Mediator

  • Private Practicing Family Law Attorney
  • Certified Mediator
  • Mediator at Los Angeles Superior Court
  • Member of Legal Grind Panel
  • Notes:
  • All 2 hour sessions shall begin promptly at 3PM and conclude promptly at 5 PM
  • Parties will have option to extend mediation at conclusion of session.
  • Any single day sessions longer than 2 hours must be reserved in advance. Maximum single day session, 5 hours.
  • Mediator requires individual parties to complete and exchange a preliminary declaration of disclosure.
  • Optional caucus (individual) sessions with mediator can also be arranged.
  • Parties are advised to have a contract drawn up summarizing agreement via independent counsel or document preparation service.

Paternity/Palimony

Paternity Suit

A lawsuit, usually by a mother, to prove that a named person is the father of her child (or the fetus she is carrying). Evidence of paternity may include blood tests (which can eliminate a man as a possible father), testimony about sexual relations between the woman and the alleged father, evidence of relationship of the couple during the time the woman became pregnant, admissions of fatherhood, comparison of child in looks, eye and hair color, race and, increasingly, DNA evidence. In addition to the desire to give the child a known natural father, proof of paternity will lead to the right to child support, birthing expenses and the child's inheritance from his father. The threat of a paternity suit against a man married to another may lead to a prompt and quiet settlement.

Palimony

A substitute for alimony in cases in which the couple were not married but lived together for a long period and then terminated their relationship. The key issue is whether there was an agreement that one partner would support the other in return for the second making a home and performing other domestic duties beyond sexual pleasures. Written palimony contracts are rare, but the courts have found "implied" contracts, when a woman has given up her career, managed the household or assisted in the man's business for a lengthy period of time. In the past 20 years palimony suits have proliferated, particularly against celebrities and wealthy businessmen, but the earliest was the famous California case of Sarah Althea Hill v. Senator William Sharon in the 1880s, which Ms. Hill lost. The line between a mutual "affair" and a relationship warranting palimony is a difficult one which must be decided on a case by case basis. Palimony suits may be avoided by contracts written prior to or during the relationship.

Stipulations

An agreement, usually on a procedural matter, between the attorneys for the two sides in a legal action. Some stipulations are oral, but the courts often require that the stipulation be put in writing, signed and filed with the court.

Support Modifications

Child Support

Court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the dollar amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.

Spousal Support

Payment for support of an ex-spouse (or a spouse while a divorce is pending) ordered by the court. More commonly called alimony, spousal support is the term used in California and a few other states as part of new non-confrontational language (such as "dissolution" instead of "divorce") now used since divorce is "no-fault" in all states but two.