Child Custody Issues For Gay Couples

Posted by: Gerald A. Maggio, Esq.

Gay marriage domestic partnership attorneys in Orange County; The Maggio Law FirmSame-sex couples now enjoy most if not all of the benefits that heterosexual couples do. Marriages have now become legal for gay couples and so has adopting children. However, the question of whether gay partners can be good parents or not is not an issue.  Research has established that being good parents has nothing to do with gender.

Like every other couple, homosexual couples have their problems too and sometimes it ends up in a divorce. Divorce laws are the same for homosexual couples as it is for heterosexual couples.  But custody battles can be more complicated than other issues.

If one is the biological parent

If one of the partners is the biological parent of the child, then chances are high that custody will be granted to that parent. It is also the case for heterosexual child custody cases. It is regarded that biological parents have more right over the child than other individuals. Also, the second parent is not expected to pay anything financially to either the child or the partner. And visitation rights also differ. In most cases, the other parent is not allowed to have any visitation rights but this can be changed depending upon what the legal guardian wants.

If none of them are related to the child

If none of the partners are biologically related to the child and have gained parenthood through adoption, then the laws are the same as it is for heterosexual couples. But again, in terms of emotional attachment, it becomes either of the parents to part ways with the child. It holds true for both partners and often, it makes custody cases difficult. In California, the child’s preference is considered and custody is awarded to the parent who is more deserving.

Conclusion

Child custody issues are an important part of divorce and in some cases, it can be a complicated one. Especially when the child belongs to homosexual parents. Custody depends a lot on the biological relationship with the child. If either of the parents are related to the child, then chances are high that custody will be awarded to that parent. However, if none of them are related, then both have equal rights to get custody.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Same-Sex Couples & Child Custody Issues

Posted by: Gerald A. Maggio, Esq.

Gay marriage domestic partnership attorneys in Orange County; The Maggio Law FirmSame sex parents who are headed towards a divorce or separation have the same problems, issues, and concerns as heterosexual parents.  Avoiding a custody battle that can get very complicated not only for the couple but for the children as well is advisable.  A joint decision needs to be reached on matters such as legal custody (decision making for the child), physical custody (who the child lives with), visitation rights (how often the noncustodial parent visits), and child support.

If both of you are legal parents

Same sex couples can be legal parents if –

  • Both jointly adopted the child.
  • The child was born into a marriage or civil union or registered domestic partnership.
  • The non-biological or non-adoptive parent adopts the child.

In a situation where both parents have equal legal rights, child-related issues are handled as it would be for ‘straight’ divorces. A judge would decide the outcome of the issues related to the custody of the child based on a number of factors.

If only one of you is the legal parent

If only one parent is the legal parent then the second parent’s rights, in all probability, will not get enough recognition by the court. The first parent or the legal parent gets the right to decide on most of the issues related to their child or children.

The sole parent has the right and power to curtail visitation rights of the second parent. The legal parent, by default, becomes the legal and physical custodian of the child or children involved. The second parent, in all likelihood, will have to pay child support as demanded by the legal parent.

The second parent can always file for partial custody and more lenient visitation rights. It should always be kept in mind, that where the law does not give equal preference to both the parents, it is always a very good idea to go for mediation and not go through the court system.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Divorce, Adoption & Custody Rights

Posted by: Gerald A. Maggio, Esq.

Child custody attorneys in Orange County; The Maggio Law FirmA divorce has repercussions whether it is negative or positive on your life and that of the people all around you. When two spouses decide to part ways they are agreeing to end their legal relation with one another. Yet, some relationships, rights and responsibilities continue to exist even after a divorce such as those of a child from the wedlock. However, there is confusion in this regard; most people think that children that are born to the parents or ones that are adopted into the marriage have different rights. However, in most situations, this will not differ barring a few exceptions.

Legal rights of an adopted child

When parents decide to adopt a child during their marriage, they are agreeing to fulfilling each and every obligation of the child same as that of one born out of a wedlock. They have a duty to provide for the child and give them reasonable care. They also have the right to make all the important decisions in the child’s life such as school, hospitals to go to, education and extracurricular activities.

In some cases, the child is adopted by both parents while in some one parent adopts the child while the other is biologically their parent. In such cases, the courts take issues such as biological links and time spent in their child custody decisions form custody of adopted children.

Responsibilities and rights after divorce

Even when the two spouses get a divorce their responsibilities to the adopted child doesn’t change. Both the parents can vie for the custody of the child. The final decision in this regard is upon the courts. The courts can either award one of the parents a primary custody of the child and the other visitation or award both the parents joint custody. However, even where there is joint custody order one of the spouses will typically have a greater share of physical custody.

Adoption during divorce

Sometimes couples can decide to get a divorce even in between the adoption process. When this happens it complicates the situation. In such a case, the birth parents will be given a right to stop the process is they deem the household unstable to take care of their child since they have parted ways. However the final decision in this regard rests largely with the court. They can decide on whether or not the adoption you should go ahead and if it does which of the spouse will be awarded the custody. The decisions in this regard will be done keeping in mind the best interest of the child.

Looking to get a divorce

It is not just the act of getting a divorce that can affect an adoption. Sometimes the mere intent of getting an Orange County divorce will be enough. Similarly if the courts are able to find that there is some degree of fraud, they can choose to nullify the adoption even if the couples wanted to care for the child despite their divorce.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Stepparent Adoption Means Terminating Another Parent’s Legal Rights

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmIn situations where a stepparent acts as one of the child’s primary caregivers and the other biological parent is not involved in the child’s life, stepparent adoption may be in the best interests of the child. Adoption terminates one biological parent’s legal rights and allows the stepparent to take over those rights and responsibilities.

When to Consider Stepparent Adoption

Some scenarios where stepparent adoption may be the best choice include cases where the other biological parent has died; cases where the other parent is uninvolved in the child’s life, due to imprisonment or abandonment; and cases where the other parent voluntarily relinquishes his or her rights. It is not appropriate in situations where the other parent still plays a role in the child’s life.

Stepparent adoption is ideal in cases where the stepparent already plays a parental role in the child’s life, and the adoption serves as a formalization of that bond.  In such cases, the legal benefits of stepparent adoption can be significant. For example, the adoptive parent gains the right to make legal decisions on behalf of the child as the biological parent would. Adoption also ensures that the stepchild is eligible for Social Security and life insurance benefits if the stepparent dies.

It is important to understand that the stepparent adoption is a permanent process that cannot be revoked later on. If the stepparent and biological parent divorce later, the adoption remains valid and the stepparent will retain their legal rights and responsibilities to the child.

Terminating the Other Parent’s Legal Rights

Stepparent adoption cannot occur without terminating the legal rights of the other biological parent. Filing a petition for freedom from parental custody is the first step in the process. If the other parent is still living but absent, every effort must be made to contact them so that they have the opportunity to contest the proposed adoption.

In some cases, the family may draft a post-adoption contract that allows the biological parent to continue to see the child on a limited basis after the adoption.

The Adoption Process

If the child is over the age of 12, the child’s preferences and consent are important to the process. In such cases, the child will must sign a consent form to allow the adoption to proceed.

Other aspects of the adoption process are designed to ensure the safety and wellbeing of the child. For example, the family will work with Social Services and home visits may be required. The family may also need to appear in court in some cases.

If your family is interested in stepparent adoption, the first step is to schedule a consultation with a family law attorney who has experience in stepparent adoptions.

Stepparent Adoptions Increasing with Thousands of Stepfamilies Forming Every Day

Posted by: Gerald Maggio

Top Orange County divorce attorneys; The Maggio Law Firm

 Stepfamilies are a huge part of American society, yet the mainstream media rarely mentions the unique needs of both parents and children when they are assimilating into one family. The U.S. Census Bureau reports 1300 new stepfamilies are forming every day and more than 50 percent of families are remarried or recoupled with kids less than 13 years old.

Unlike normal adoption, stepparent adoption is for individuals who want to solidify their commitment as a stepfather or stepmother and adopt their stepchild. An experienced stepparent adoption attorney is critical to draft legal documents, review them, and counsel on a stepparent’s rights as well as legalities of which the biological parent must be aware. Expert legal counsel will ensure that a stepparent adoption will not have a chance to be reversed.

A stepparent adoption does end the absent biological parent’s legal ties to the child, including custodial and visitation rights and financial support. There are four main ways to do a stepparent adoption with an accomplished California family law attorney.

The non-primary biological parent can sign a state authorized form consenting to the adoption by the stepparent. The Department of Social Services will investigate to determine if it is in the child’s best interests and create a report with their findings. Children should be informed that the stepparent wants to adopt them as the social service investigator will interview the child about what he or she wants and what they understand about the adoption. Also, children older than 12 years must give written consent of the adoption. An adoption hearing will then be held and if everything is successful, the stepparent will have the adoption certificate.

In contrast, if the biological parent has not spoken or financially provided for the child in more than a year, then the custodial parent will have full custody of the child. The stepparent must prove these facts and give testimony, but no investigation is mandated. Only if the absent parent can give a sufficient reason for not communicating or supporting the child will the court not give its consent. Otherwise, it takes only one court hearing to get the certificate.

Yet in some cases the absent parent has only failed to communicate or give financial support, but not both shortcomings. This makes the stepparent adoption process a bit more complex, and the Probation Department will have to research and report if abandonment has occurred. California courts will hear the testimony of the party who wants to adopt and incorporate the probation report. One legal petition is required to terminate the absent parent’s rights and a second petition completed to adopt the child. Two separate court orders must be done and the absent parent’s relatives must be notified of the proceedings. If the child has been deemed abandoned, the court will then allow the adoption decree.

The last way to get a stepparent adoption is if the parents of the child were never married, and thus there is no natural father. A court order to terminate the alleged natural father’s rights is far easier than the aforementioned routes. The couple can then go about the stepparent adoption in the normal way.

After an adoption, the child is then eligible for Social Security and life insurance benefits should either of their parents pass away. Some couples get legal assistance to change the child’s last name and modify the birth certificate, too.

The Maggio Law Firm has guided many stepparents and the couples in solidifying their bond with the children. As an experienced Orange County stepparent adoption attorney, Gerald Maggio is well versed in all the steps of the stepparent adoption process.  For more information or to schedule a consultation, contact Orange County divorce lawyer, Gerald A. Maggio, by visiting Maggiolawfirm.com or calling (949) 553-0304.

Unmarried Mothers Should Consult With an Orange County Family Law Attorney

Posted by: Gerald Maggio

Top Orange County child custody attorney; The Maggio Law Firm

Unmarried mothers face a number of legal issues that must be dealt with to secure the health and happiness of their child. A family law attorney can help unmarried mothers navigate these difficult legal issues and secure adequate child support.

Unfortunately, many unmarried women find themselves alone after they become pregnant and the father of their child leaves. This abandonment can be emotionally taxing for a young woman by itself, and there are a number of legal issues at stake that must be handled as well. Not only must the child’s paternity be confirmed, child support must be secured from the baby’s father, and a child custody arrangement must be worked out between the parents.

Once an unmarried woman becomes pregnant, determining the paternity of the child is essential in pursing child support. With married parents, paternity is established automatically. However, if parents are unmarried, paternity establishment is not automatic.  Both parents should start the process as soon as possible, so that the child will not have to suffer. Once the child is born, unmarried parents can establish paternity by signing the voluntary Declaration of Paternity. If the father contests the paternity, a paternity test can be administered.

Once paternity is established, a family law attorney can then work to get an order of child support from the father, and the California Department of Child Support Services can assist unwed mothers with child support collection and enforcement. Securing child support is an essential step for unwed mothers, as it offers the financial support necessary to make sure that the child is properly taken care of.

Child custody arrangements between unmarried couples can be quite complex and difficult to navigate. An experienced family law attorney can help unmarried mothers construct a child custody arrangement that will work for both parents and will serve the best interests of the child. When establishing custody, the courts will take a number of factors into consideration including:

  • The child’s health, safety and welfare
  • The stability of each parent’s home environment
  • The history of physical abuse
  • The parents’ criminal history, as it may restrict custody or visitation orders
  • Whether or not siblings are involved
  • The wishes of the child, if he or she is old enough to make them known

A family law attorney can provide assistance in working through all of these issues. Just because a young woman is not married when she becomes pregnant doesn’t mean that the mother, and child, do not have legal rights.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting http://www.maggiolawfirm.com/.

What To Understand About Same-Sex Couples and Adoptions in California

Posted by: Gerald Maggio

Top Orange County stepparent adoption attorney; The Maggio Law Firm

Same sex couples face unique legal challenges when they decide to become a family with children. While California allows same-sex couples to adopt, the process can be long and difficult.

The adoption process is often difficult even for heterosexual couples, and same-sex couples face even greater challenges when it comes to adoption. In California, GLBT adoption and second parent adoption are legal and can present significant legal and social challenges for same-sex couples.

Gay and lesbian couples often decide to bring a child into their lives through conception and birth. For a lesbian couple, this involves finding a male donor or visiting a sperm bank and then having one member of the couple become pregnant. In such a partnership, the other parent can then become a legal second parent through stepparent or second parent adoption. Gay men can also become legal parents of a child through the use of a surrogate mother.

Having a child through conception and birth can be a long and difficult process, so some prospective gay parents choose to go through the state system. For these prospective parents, success in adopting from the public child welfare system greatly depends on two things: the state adoption law and the attitude of the adoption agency being utilized. In California, state law protects prospective gay and lesbian parents from discrimination during the adoption process. It is illegal for public agencies in California to reject adoptive parents on the basis of their sexual orientation.

While the law provides some protection for prospective gay and lesbian parents, it does not guarantee that prejudices don’t exist within the agencies. Social workers who are not comfortable with homosexuality may determine that the prospective adoptive parents are unsuitable for a number of other reasons. Private agencies, on the other hand, establish their own set of criteria for prospective adoptive parents. These agencies may consider age, fertility status, marital status, religion and sexual orientation when making adoption decisions. Same-sex couples, then, may not have as much success in finding a private agency that is open to adoption by homosexual parents.

Raising a child can be one of the biggest decisions in your life, so it is important to know all of the legal ramifications of such a decision before engaging in the legal process of adoption. If you are a same-sex couple considering adoption, you should contact an experienced family law attorney who can help you through this difficult and complex process.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California.   For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

Stepparent Adoptions in California Are Relatively Straightforward

Posted by: Gerald Maggio

Top Orange County stepparent adoption attorney; The Maggio Law Firm

Adopting in California is not terribly difficult, but the best advice anyone can be given is to discuss the matter with an experienced Orange County family attorney.

Adopting a stepchild in California may be a relatively simple process, although as with many things dealing with the law, each case is different. There are generally exceptions in many instances as well and it never hurts to be smart and speak to a qualified Orange County family lawyer. It’s better to know what is actually involved right up front rather than find out later about something no one thought about,” explained Gerald A. Maggio of The Maggio Law Firm in Irvine, California.

One of the first things everyone needs to consider is the responsibility of adopting another person’s child. It’s definitely a decision with long-term consequences, and not something to be rushed into on the part of the adopting step-parent or the child. For this reason, it’s often a good idea to talk to the child about the process and what it will mean for them to make sure that is what “they” want.

In most cases, there are several forms that will need to be filled out, and they are usually Adopt-200,210 and 215. An Orange County family attorney will advise which documents are needed and how they should be filled out when the adoption process is started. “The Adopt-200 is the formal adoption request that lets the judge know everything about the child being adopted and the step-parent adopting. The Adopt-210 is the formal adoption agreement between the child and adopting step-parent and it only gets signed when the judge indicates it is ok to do so,” explained Maggio.

The last form, the Adopt-215 is the actual adoption order and this will be signed by a judge if they agree to the adoption. While this may sound a bit complicated, with the assistance of a skilled Orange County family lawyer, the adoption process will go smoothly.

Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.

Gerald A. Maggio is an Orange County divorce attorney, in Irvine, California. For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting www.maggiolawfirm.com.

What to Know About Orange County Stepparent Adoptions

Posted by: Gerald Maggio

Top Orange County stepparent adoption attorney; The Maggio Law Firm

Step parent adoptions are quite common these days and not as complex as many people think.

The fact of the matter when it comes to step-parent adoptions is that they are a whole lot easier and faster than other forms of adoption. This is because many of the states tend to bypass the home-study requirements as well as the waiting or adjustment period.

“It’s best to check these issues out with a highly-skilled family law attorney because there are also some states that mandate the custodial parent has to be married to the step-parent at least one year before adoption is allowed to proceed,” indicated Gerald A. Maggio, of the Maggio Law Firm in Irvine, California. In these instances, only the step-parent is allowed to petition to adopt the children. The custodial parent is not a part of the process in terms of the application, etc.

To start a step-parent adoption the first thing that needs to be done is to find out the applicable laws in the state of residence. An expert family attorney that handles this kind of work will have that knowledge at their fingertips.

In the alternative, researching online will also answer some of the questions that might arise. “While this might be the route that makes the most sense in terms of finances, some states require the adopting parent have legal representation,” outlined Maggio. A skilled family attorney will also know where to source case law that will assist with the adoption process and help getting the adoption application approved.

Make sure the right court system is accessed to proceed with a step-parent adoption. Depending on the state, this could be probate court, family court or even juvenile court. The court is responsible for handing out the adoption information paperwork. If it happens to be pre-packaged then all the information should be available in the package. If not, the first thing to ask is if legal counsel is required.

Make sure all the proper forms are filled out prior to filing. A skilled family attorney will assist in completing the documentation. In fact this is the smartest thing to do since most of the legal forms are confusing to someone who isn’t an attorney.

“There are many other things that need to be done to finally complete a step-parent adoption and a good family attorney will outline what those steps are in order to make the whole procedure go smoothly,” explained Gerald A. Maggio, of The Maggio Law Firm in Irvine, California.

For more information or to schedule a consultation with Orange County divorce lawyer Gerald Maggio, contact The Maggio Law Firm by calling (949) 553-0304 or visiting Maggiolawfirm.com.

What is the Process for Stepparent Adoptions in Orange County?

Posted by: Gerald Maggio

Top Orange County divorce lawyers; The Maggio Law Firm

In stepparent adoption, one biological or legal parent retains custody control of the children, with the stepmother or stepfather of the child seeking to adopt the child.

Stepparent adoption cases are filed in Probate court, not Family Law court. An investigation case file is opened after the initial paperwork has been filed with the court and a Court investigator will be assigned to file a report with the Court withing 90 days following the interview and a visit to the adopting stepparent’s residence.

Children that are at least 4 years of age should be advised by the parent and stepparent that the stepparent is requesting the the Court grant his or her request to adopt the child. The investigator will interview the child regarding his or her understanding of the adoption and what he or she wants. California state law requires that children 12 years and older must give written consent of the adoption.

Upon completion of the investigation and filing of the investigation report with the Court, the next step is to request and obtain a hearing date with the Court. The court will require written proof of the consent of the other parent married to the stepparent, roof of consent (or death) of the other biological parent, and proof of service on the other biological parent before setting a hearing date.

At the adoption hearing, the child to be adopted must be present in Court at the time of the hearing, The hearing is basically a formality for the Court to grant the stepparent adoption that has essentially been pre-approved by the time of the hearing.

For more information or to schedule a consultation, contact Orange County divorce lawyer Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.

 
No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.