Factors to Consider for Domestic Violence Restraining Orders

The California Court of Appeals has held that a trial court failed to consider whether a wife’s allegations of a pattern of control and isolation by limiting her access to money, communication and transportation amounted to “abuse” under the Domestic Violence Prevention Act.

In Hatley v. Southard [decided on August 1, 2023], a wife filed a request for a domestic violence restraining order against her husband. In her request, the wife alleged that her husband engaged in a pattern of abuse against her, including threats to kill himself in order to exert control over her and threats of abuse against the wife’s pet dog if she tried to seek medical treatment for injuries that the wife believed were inflicted on her by her husband while she was unconscious. The wife also alleged that her husband prevented her from working, limited her use of her vehicle and phone, isolated her from friends and family, controlled how she spent money (including cancelling her ATM cards), and committed sexual abuse against her. In her request for a restraining order, the wife also asked that the trial court award her spousal support.

The trial court denied the wife’s request for a temporary restraining order and set the matter for a further hearing on the request for a domestic violence restraining order. In denying the temporary restraining order, the trial court held that, ‘‘‘[t]he facts as stated in form DV-100 do not show reasonable proof of a past act or acts of abuse.’’ After a further hearing on the restraining order request was set, the husband filed for divorce and contested the wife’s request for a restraining order. In his response, the husband accused the wife of having retaliatory motives for him wanting a divorce. He further argued that there was no need for a restraining order since he no longer lived in California and did not intend to return to the state. Lastly, the husband also objected to his wife’s request for spousal support in her restraining order request, arguing that this request should be heard through the dissolution of marriage proceeding.

At the hearing on the domestic violence restraining order, the wife testified about the husband’s control over her finances, harassing messages, and suicide threats. She also testified that he took her car out of state after their separation and left her without transportation. The wife said that not having a means for transportation caused her to lose her job. The husband did not cross examine the wife and the husband did not testify himself. The trial court interrupted the wife’s testimony several times. For example, after she described how her husband limited and, ultimately, took her car, the trial court asked, ‘‘‘What abuse? Tell me what you’re complaining of. I mean, I know that he took your car, and the car means a lot to you, but what else?’.’’ When the wife then described her husband’s degrading insults and unwanted contact, the trial court did not accept her testimony as evidence of abuse under the Domestic Violence Prevention Act. Instead, the trial court asked, ‘‘‘Has [your husband] ever hit you?’’’ The trial court also refused to allow the wife to testify about her husband’s sexual abuse, finding that the wife did not include sexual abuse in her filings despite a statement in the wife’s declaration, which stated, ‘‘‘[T]here have been incidents involving sexual abuse.’ ’’ After the wife’s testimony, the husband moved for a judgment on the grounds that, even if the wife’s allegations were true, it does not ‘‘‘fall within the domestic violence prevention act.’’’ The trial court found in favor of the husband and denied the wife’s request for a domestic violence restraining order. The court did not address the wife’s request for spousal support.

On appeal, the appellate court reversed the trial court’s decision. Under California Family Code Section 6320, a court may issue a domestic violence restraining order preventing a party from disturbing the peace of another party. “Disturbing the peace” of a party refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of that individual; (2) this conduct includes coercive control, which is “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will or liberty”; (3) under California Family Code Section 6203(b), “abuse” under the Domestic Violence Prevention Act is not limited to the actual infliction of physical injury or assault; (4) the trial court erred by failing to consider whether the wife’s allegations that the husband’s attempted financial control over her amounted to “abuse” under Domestic Violence Prevention Act; (5) the trial court erred by failing to consider whether the wife’s allegations that her husband limited and deprived her of her vehicle and phone constituted “abuse” under Domestic Violence Prevention Act; (6) on remand, the wife should be allowed to testify as to particular past acts of sexual abuse; (7) the trial court’s error was prejudicial since there is a reasonable probability that the wife would have obtained a more favorable result if the trial court considered whether her allegations establish, under the totality of the circumstances, that the husband’s conduct destroyed her mental or emotional calm; and (8) the trial court erred by failing to address the wife’s request for spousal support. Therefore, the Court of Appeals reversed the trial court’s order denying the wife’s request for a domestic violence restraining order. The matter was remanded back to the trial court for a new hearing on whether such an order is appropriate.

What are the Different Types of Divorce in California?

What are the Different Types of Divorce in California?

Are you filing for divorce and unsure of where to start? Or perhaps you are legally separated and interested in exploring your options. Deciding to end a marriage is never easy, especially when there are children involved. Many people don’t know that divorce isn’t a “one size fits all” process. 

Having a thorough understanding of the divorce options available in California can help you determine a choice that is ideal for your situation. Being prepared in the initial stages can ultimately save you time, and put you a step ahead of the game when you meet your divorce attorney. 

Here we’re going to explore five types of divorce in California so that you can make an informed decision when it’s time to call a family law attorney. 

Uncontested Divorce

Uncontested divorces are generally straightforward cases, in which both partners have reached a mutual agreement on all the vital aspects of the divorce. Both parties can negotiate and settle on critical financial matters, the division of property that they owned together, as well as child custody, and a host of other matters. Although both partners desire the dissolution of the marriage, only one can file a divorce petition.

This type of divorce is only an option for parties that can part amicably and cooperate well on a final agreement. 

One of the worst mistakes people make in uncontested divorces is not consulting with a divorce attorney ahead of time, due to the misperception of these cases’ “simple” and “easy” in nature. However, without legal representation, you can end up relinquishing rights to certain benefits that you didn’t know you were entitled to, such as alimony, a portion of your partner’s pension benefits, income from businesses, and real estate. 

In California, all divorces take a minimum of six months to finalize. However, uncontested divorces are still faster and less expensive, because they don’t require a lengthy court process. 

Contested Divorce 

Contested divorces are often very stressful, time-consuming, and can be costly to litigate.  In a contested divorce, one or both spouses can’t agree on important matters such as child support, alimony, and property division. In such cases, mediation may be able to help. In divorce mediation, both spouses and their attorney will meet with a neutral third party to help work out their issues. 

However, if the couple can’t agree on critical matters, the courts will have to intervene. Family law judges do their best to remain impartial and consider the interests of the parties involved. In reality, they don’t know your family personally, and can only make decisions based on what’s on paper. 

Simplified Divorce 

A simplified divorce is a relatively less messy way to dissolve a short-term marriage. To qualify for a simplified divorce, both partners must be residents of California for at least six months at the time of filing. In addition, couples must file a divorce jointly under the no-fault ground of irreconcilable differences. There are additional criteria a married couple must meet to obtain a simplified divorce:

  • Cannot be married for more than five years
  • Couples don’t own joint property or have more than $4,000 in joint debt, excluding car loans.
  • Community property may not exceed $25,000
  • Individual property may not exceed $25,000 

When you agree to a simplified divorce, both parties waive their right to spousal support. Both partners also have to sign a waiver agreeing to divide all the assets they own. 

No-Fault Divorce

California was the first state to permit no-fault divorces. In this type of divorce, the courts don’t consider the misconduct or the wrongdoings of either partner. Therefore, the spouse filing for divorce doesn’t have to prove fault or present evidence as grounds for the divorce. This approach is ideal if the couple wishes to dissolve their marriage due to “irreconcilable differences” or “irreparable breakdown” of the marriage. 

Limited Divorce

A limited divorce is similar to legal separation in that the couple remains married, but they no longer live together. This court-supervised separation temporarily establishes specific responsibilities regarding child support, spousal support, health insurance coverage, and property division. A limited divorce is the least common type of divorce proceeding. If a married couple needs more time to resolve their legal and financial issues, a limited divorce is an ideal option. 

Azemika & Azemika Law is on Your Side

Going through a divorce can be a difficult and emotional time. If you are trying to settle outside of court, make sure both party’s attorneys are aware of that. However, if there are issues that the two of you can’t agree on, you may need to get the courts involved. 

The lawyers at Azemika & Azemika have a combined total of over 56 years handling family law cases. This expertise allows our dedicated team to customize each situation to fit our clients’ specific needs. As our client, we will keep you informed on the status of your case, allowing you to make informed decisions as your case progresses.

Let the team at Azemika & Azemika help set you on a path to a better post-divorce future.  Contact us today for a consultation.

Can Divorces Be Resolved Out of Court?

Even if you are ending a marriage amicably, negotiating the terms of a divorce agreement can be challenging. And if there is hostility between the couple, it can make the process even more complicated.

When you think of divorce, you may think of a husband and a wife sitting in court, battling back and forth in front of a judge. However, it is far more common for a couple to settle their divorce outside of court..

If you are in a situation where divorce is inevitable, or if you are in the middle of a divorce now, and settling out of court interests you, there are some important details you should be aware of. In this article, we will cover some of the ways in which you can avoid litigation, advantages of coming to a divorce agreement outside of the courtroom, and touch on what you can expect if your divorce goes to trial.

How to Avoid Litigation

When going through a divorce, couples often don’t realize that they don’t necessarily need the courts to resolve their request. There are options such as mediation, negotiating on your own, or settling out of court that allows couples to come up with a fair divorce settlement without the court’s intervention.  

An uncontested divorce is when you and your spouse agree on the terms of a divorce without the court’s involvement. This route, when possible, can save you and your spouse thousands compared to a trial.

Some of the items that are parts of a marital settlement agreement that a couple can negotiate without going to court are:

  • Division of property
  • Parenting plans
  • Child support
  • Spousal support

If you and your spouse can agree on the conditions of the divorce, the process is simple. First, you must draft a settlement explaining what you have decided. Next, the attorneys for each party should review the document and make revisions until both parties believe that it is fair. The settlement agreement is then submitted to the court to be validated.

There will then be a short, informal hearing held where the judge will review the settlement agreement to ensure that it is fair to both parties and negotiated in good faith. If the judge believes that issues need to be revised, the judge can send the settlement back to the couple for further negotiation.

Since the terms are uncontested, the court has to do nothing more than to accept the terms on which you have agreed. At this point, the settlement will then be formalized into a decree specifying each person’s responsibilities in the future. At that time, the divorce is final.

Remember that even if you are on good terms with your spouse, the emotions involved in a divorce could cause things to go south quickly if you are trying to negotiate a settlement agreement without a lawyer. Involving lawyers (on each side) will help communicate clearly and ensure that each side articulates their requests and receives a fair settlement.

Benefits of Settling Outside of Court

It takes less time to finalize when settling outside of court, so your attorney will not have to do nearly as much as is required by a trial, which will in-turn save you money. It’s also much more likely that you will be happier with the outcome, since you and your spouse are the ones deciding on the terms of the divorce.

If your divorce goes to court and you don’t agree with the judge’s decision, there isn’t much you can do other than file an appeal. Filing an appeal can be challenging to win and be very costly. Working with your attorney in a neutral setting outside of the courtroom gives both parties a chance to come to an amicable agreement without leaving the decision up to a third party.

What Happens if The Case Go to Court?

Should you and your spouse not be able to agree on how the two of you should handle matters on your own, that is considered a contested divorce, and your case will have to go to court. Going to court will take much more time, incur far more fees, and likely cause more stress.

If your divorce goes to trial, your attorney will begin the discovery process. During the discovery process, they will start to collect evidence on unresolved issues, reviewing each side of the case and building an argument supporting your arguments and strategy.

On your hearing date, the judge will hear each side’s testimony regarding the issues and decide on a settlement based on state law. One thing to remember is that the judge’s decision is final.

Azemika & Azemika Law is on Your Side

Going through a divorce can be a difficult and emotional time. If you are trying to settle outside of court, make sure both party’s attorneys are aware of that. However, if there are issues that the two of you can’t agree on, you may need to get the courts involved. 

The lawyers at Azemika & Azemika have a combined total of over 56 years handling family law cases. This expertise allows our dedicated team to customize each situation to fit our clients’ specific needs. As our client, we will keep you informed on the status of your case, allowing you to make informed decisions as your case progresses.

Let the team at Azemika & Azemika help set you on a path to a better post-divorce future.  Contact us today for a consultation.

Can a Parent Restore His or Her Parental Rights if They’re Lost?

Every state in the country has laws that dictate the termination of parental rights. Termination is always weighed carefully to focus on what’s best for the child, and it’s a complex process that is irreversible in many cases. However, there are also statutes and procedures in place in some states to restore parental rights in specific circumstances.

Can a parent restore his or her parental rights if they’re lost? The answer to this question is complicated. It depends on individual circumstances and whether or not the state in which you live allows for reinstatement of parental rights.

In California, parental rights that have been terminated may be restored in certain circumstances. While all cases are reviewed and determined based on individual circumstances, there are some situations where restoration of parental rights may be the best option for the child and the parents. 

Why Parental Rights Are Terminated

Termination of parental rights is not done lightly. In most cases, termination of parental rights occurs when there has been serious child abuse or severe child neglect. Occasionally, parents may choose to terminate their own parental rights, but they must petition the courts to do this.

Ultimately, the termination of parental rights is done when it is in the child’s best interests. Typically, once parental rights have been terminated, the child will be placed in foster care or adopted. However, for some children, the foster system does not lead to adoption or the stability that the child needs.

The Best Interests of the Child

When determining whether or not to reinstate parental rights, the courts must determine whether it is in the child’s best interest. Some parents who lose their parental rights may never get them back, but for others, restoring the parental relationship may be what’s best for everyone involved, especially the child.

For children who are not likely to be adopted or aging out of foster care, the options for their future care may be limited. In some cases, it may be in the best interest of these children and adolescents for them to be reunited with their parents.

If parental rights have been terminated, but children are not likely to be adopted for some reason, a parent may have their parental rights reinstated if the courts determine that it is in the child’s best interest.

Restoring Parental Rights in California

In California, parents who wish to have their parental rights reinstated must prove that the child is better off with them than in the foster care system. Other criteria must be met before courts will consider reinstating parental rights.

  • Three years must have passed since parental rights were terminated.
  • If a child is deemed unlikely to be adopted, parental rights restoration may be considered.
  • If a child is younger than 12, the courts must factually identify that restoring parental rights is in the child’s best interests.

Older children aging out of the foster system or who are unlikely to be adopted may wish to restore their relationship with their parents. If the parent can prove that restoring their parental rights is the best option for the child, the courts may agree. But each case is reviewed on an individual basis, and proving that parental rights should be restored can be difficult.

Getting Parental Rights Restored

Losing parental rights can be painful for both parents and children. Parents who make an effort to improve themselves to better care for their children may still face having their rights terminated and lose access to their children.

In California, parental rights can only be restored if the child requests. Parents cannot petition to have their rights restored. A child or the child’s attorney can petition to have parental rights restored three or more years after the termination of parental rights.

While this process may have some parents feeling like their hands are tied, having a skilled and knowledgeable attorney advise them on the process can be invaluable. Family law attorneys can help parents navigate the complex process and help parents better understand the laws surrounding the restoration of parental rights.

Let Us Help You With Your Family Law Case

Matters of restoring parental rights are complicated and it is highly important that they be handled by an experienced family law attorney. You don’t have to navigate the legal challenges and the family court system alone. We have helped many people in your circumstances.

At Azemika & Azemika, we understand the complexities of state laws and the family court system. The issues that you are facing are emotionally, financially, and legally challenging. Our practice is exclusively devoted to the field of family law. As a result, we can handle cases involving divorce, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions. With efficiency and great attention to detail, our partners at Azemika & Azemika use our vast experience in family law to customize each case to our clients’ needs.

Contact us today for a consultation, and we will work with you to determine the best option for your future.

How Is Child Support Calculated in California?

An order to pay child support is one of the most emotionally-draining aspects of a divorce or separation. We understand that it is one of the hardest things to go through and can be one of the most overwhelming. Every state utilizes its own guidelines for establishing child support. While they share some similarities, they can ultimately be very different. 

But how does California calculate child support? 

Depending on your case’s specifics, it may not be as simple as you would hope. If you’re like most people, you’ve never thought to look into how California determines child support before filing for divorce. Let’s take a look at the particulars of California state law.

Understanding Child Support

When dealing with child custody, judges in California must rule in the child’s best interest. The same applies to child support orders. One or both parents may be required to pay child support to cover necessary living expenses for their child.

There are two key factors judges use to determine child support. The first is the total income of each parent. Both parties will be required to fill out an Income and Expense Declaration, which will determine the final estimates. A divorce attorney from our firm can assist you in completing the form. 

The second is what’s referred to as the time-share. How much time you spend with your child gets broken down into a percentage and used with your income to determine who will be paying child support and receiving it. 

It’s possible to determine what your child support responsibilities might be beforehand. The California government provides an online calculator here that includes all the factors of the state’s guidelines. Thoroughly reading the calculator requires knowledge of California law, but one of our lawyers can help you understand what it all means.

5 Common Questions About Child Support in California

We know there are likely many questions swirling around in your head when trying to figure out how to calculate what your child support could be. We’ve answered a few of the most common questions for you.

1. What About Multiple Children?

If you have multiple children, you’ll have to make payments for each child. A judge will use the first calculation to determine each payment. However, older children will receive smaller payments than younger kids. 

2. What Does Child Support Cover?

There are specific things a parent’s child support payments are supposed to cover. These also factor into the overall payment amount. However, keep in mind that child support ensures that both parents share the responsibility in covering expenses.

All child support orders cover the basics of food, clothes, healthcare/insurance, and housing costs. Again, the party paying child support won’t be paying the entirety of these costs, just contributing. Though some other costs may not apply to your situation, these are mandatory.

Other costs that aren’t required but a judge may still order include medical bills, school-related costs (including extracurricular activities), and professional child care costs. Parents can elect to include other costs as part of child support, even if a judge doesn’t order them.

3. How Long Does Child Support Last?

As the name would imply, child support assists in raising children, but the commonly-held legal definition of an adult doesn’t necessarily apply here. While age certainly plays a role in determining when support stops, it’s isn’t always the only one. The only time that age is the sole factor is when a child turns nineteen.

A child support order may end when a child turns eighteen, but only if they have graduated high-school. An eighteen-year-old who is still a student, even if only part-time, is still considered a child and will require support. Child support payments end automatically once they are nineteen, even if they haven’t graduated.

If your child becomes independent through marriage or joining the military, they are no longer eligible to receive child support. Usually, this only happens once they are eighteen but may occur at a younger age depending on their location. You also cease to pay support for a child that has passed away.

The only time child support continues past nineteen is in the case of disability. If a court determines that a disabled adult cannot take care of themself due to their condition, they may order child support payments to continue. Such orders can continue until their condition improves, or longer if their situation doesn’t improve and allow them to provide for themselves. 

4. Is Child Support Flexible in Any Way?

California created a set of rules for determining child support called the Guideline. While the Guideline utilizes a formula to determine child support payments, the state legislature recognizes that there are unique circumstances that they must account for to maintain fairness. A judge is required to acknowledge these factors when devising the final order.

The most significant variable that can alter support payments is a large discrepancy between both parents’ income. A payer who makes considerably more money than their ex-spouse will end up paying more, but the amount may be changed. The law allows this to prevent a parent from paying more than their share of expenses. 

Something similar can happen when comparing time-share. A judge will consider how much time a parent gets to spend with their child and compare it to the financial support they provide. A parent who pays most child-rearing expenses but doesn’t get to spend much time with them may see their financial responsibilities diminish.

Of course, some factors can increase child support beyond the usual calculations. A child with a medical condition that results in high expenses will need more significant aid to have their needs met. 

Keep in mind that a judge may change the order any time after ordering it as well. Often, this can occur due to a change in the children’s or one of the parent’s lives. If reported to a judge, they may deem a necessary change. Parents can also agree to make changes with the court’s consent or challenging aspects of the order.

5. What If I Can’t Pay Child Support?

If you miss a payment, it’s best to try and resolve the matter quickly. California will go through multiple avenues to recover the missed compensation. On top of that, the state adds ten percent interest to missed payments, increasing the amount you owe. In especially bad cases, you could face severe legal consequences.

If you can’t meet your payment obligations, it’s best to talk to a family law attorney as soon as you can. Depending on why you missed your payment, you may be able to change the terms of your child support order.

Hire Azemika Law for Your Child Support Case

Our team at Azemika & Azemika has been practicing in Kern County family law for over thirty years. If you need a family law attorney to help with your divorce, child visitation or support, custody, or adoption, you can count on us.
For comprehensive representation in any child custody and child support matter, call Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us online or by phone to arrange an initial consultation with our attorneys.

Why Adopt an Adult?

gavel court for adult adoption

When people think of adoption, most picture a husband and wife holding a young child. It is, after all, their dream of being parents coming true. Another image that comes to mind might be a family of children of various ages in a courtroom finally being adopted by their happy looking new parents. 

However, there are actually many cases where people choose to adopt an adult. It could be for a legal reason, or perhaps a more personal one. Whatever the cause, legally adopting an adult has its benefits for all involved. 

The Legal Standpoint

The most common reason someone would like to adopt the adult in their life is to change the adult’s last name legally. People can go and have their names changed in the court system without the cost and paperwork of adoption. However, the more personal touch of asking the step-parent to be their parent legally makes the legal step feel more of a family coming together than something for the court system to simply officiate. 

Also, adopting your step-child or foster child will give them a legal standing if you die without a will. While several people are making their end of life plans, some pass on unexpectedly without taking the time to have provisions to care for all the children they want to provide for after they have left this world for another. Adopting an adult gives them legal standing in inheriting from the estate of a deceased family member. 

Another reason one might adopt an adult is if the adult in question has a disability that will require decisions made on their behalf in the near future. The disability could progress to the point the adult needs to have someone making all the medical and financial decisions for them. 

It would leave the disabled adult vulnerable to someone who would take advantage of them if they did not have an immediate family member to do it for them. Adult adoption is the simplest solution to this type of problem plaguing thousands of adults with disabilities. 

While these solutions have a personal connection, they are not solely for personal reasons. There are a few reasons, while they have a legal association, that are done for a more personal, emotional reason.

The Personal Side of Adult Adoption

Aging out of foster care for is often not a good experience. The new adult has worries about where they will stay, how they will support themselves, and if they will have anyone to help them on their beginning journey into adulthood. 

Foster parents who received their child into their late teenage years and loved them as one of their own can adopt the new adult with their consent. It will give the new adult the support system they need to help succeed in the world they now don’t have to navigate alone and give the adult an emotional bond often missing in foster children who age out without a solid family structure. 

There are also cases where a child will find their biological parents after being in the system for years, or perhaps adopted when they were babies after the parents gave up the child for their own personal reasons. The adult may decide to allow their biological parents to adopt them to give themselves some closure, among other personal reasons.

The parents may also want to adopt the biological child they gave up to make sure the child is provided for from their estate and give themselves some sense of relief. However, the adoption between the biological parents and the adult may negate any inheritance the adult may receive from their adoptive families unless there is a will specifying they get anything from an estate. 

Another reason someone goes for adult adoption is when an adult wants to make their step-parent “legally” their parent. For whatever reason, the step-parent had been longer in their life and, in some cases, in better ways than the biological parent. 

The child reaches adulthood without the parent being able to adopt them for one reason or another. Now that the child is an adult, the two consenting parties can make the step-parent “officially” the parent by the adult adoption process.

Navigating The Whole Process

In some areas, adopting an adult is as easy as filling out paperwork, however the process does require care and attention. It is always best to have an experienced California family law attorney on your side. Azemika & Azemika can help.

We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in the adoption process, contact us today.

What You Need to Know About Adopting Your Stepchild in California

parent washing dishes with child for Adopt a Stepchild in Ca case

The bond between a step-parent and step-child can become even stronger than that of the noncustodial parent. If the noncustodial parent is absent or has terminated their parental rights, adoption is an option that may be right for you and your family.

It may feel daunting to consider adopting your stepchild in Ca, but with some thought, preparation, and the right legal resources, your adoption can go smoothly. In this article, we will cover the process of step-parent adoption.

Requirements to Adopt

There are many things to consider when you want to adopt a stepchild in Ca. Before, the process takes as little as 180 days or may take longer depending on the case’s complexities. 

Before deciding to adopt a stepchild in Ca, there are some requirements you need to make sure you meet. The criteria are:

  • Biological and Adopting Parent Relationship – The biological and adoptive parent is required to be legally married or in a domestic partnership to file for the adoption. There is the option of a “second-parent adoption,” however, that is a more complicated process.
  • Adopting Parent Age – A parent adopting a stepchild must be 18 years old or older and at least ten years older than the child. Sometimes, the 10-year requirement can be waived depending on the circumstances.
  • Biological Parent/Spouse Consent – Both the adopting parent, their spouse, and the biological parent must agree to the adoption.
  • Consent – The child’s other biological parent must give consent to the adoption. If there is no consent, the adoption may still proceed but will not be considered an uncontested adoption. The adoption procedure will differ if consent is not able to be obtained. Some of the reasons for proceeding without consent are willful failure, abandonment, and alleged parental rights termination.
  • Consent of the Child – The adoptive child must consent if they are 12 years old or older. 

Next, we will take a look at the steps to adoption by a step-parent.

How to Adopt a Stepchild in Ca

Step 1. Filing for Adoption

To begin the adoption process, an adoption request form must be filed. This form must be completed with information about the step-parent, their relationship with the child, and information relating to the parents or other guardians that may affect the courts’ determination. 

Step 2. Social Services Investigation

After filing for adoption, the court will contact the Social Services office in your county to complete an investigation. They gather relevant identifying documents, such as a birth certificate. Next, they interview both the biological parent and the adoptive parent. In most cases, they will interview the child as well. 

This investigation is often brief and straightforward, following the State’s guidelines for adoption in the child’s best interest.

Step 3. Termination of Parental Rights

The other parent of the child must be living to terminate their parental rights. This frees the other parent of obligations like child support and any court-ordered visitation rights. If the non-custodial parent agrees to terminate rights, a form is completed and submitted to the courts.

The non-custodial parent may not be willing to participate or unable to be found for their signature. Unwillingness to consent does not mean the parent will fight the adoption, but rather that they are not interested in participating. 

When a non-custodial parent cannot be found, you must take all reasonable efforts to locate them. If the non-custodial parent cannot be found, a petition is filed with the court, and a judge determines if their rights are to be terminated. 

Step 4. Court Hearing for Adopting your Stepchild in Ca

The last step of the adoption process is a court hearing. A judge legally formalizes the adoption. This is generally a happy event. Friends and family attend to support the adoptive parent and may even take a photo with the judge.

Same-Sex Couples

The legalization of same-sex marriage came with the presumption of parentage by non-biological parents of children born during a marriage. When one parent in the union has a biological relationship to the child, but the other doesn’t, a step-parent or second-parent adoption can secure legal rights for the non-biological parent.

If a child is born from a previous marriage, same-sex couples can still file for adoption. For adopting your stepchild in Ca, they must meet the requirements and follow the same process outlined above. 

Finding the Right Attorney

It is possible to file for adoption without an attorney, but it may be more difficult and costly. Finding an attorney who specializes in adoptions provides you with counsel and guidance throughout the adoption process. 

At Azemika & Azemika, we are devoted to family law. We are experts at cases involving dissolution of domestic partnerships, divorce, visitation, child custody, paternity, child and spousal support, adoptions, and abandonment. 

We have successfully handled some of the most challenging family law cases in Kern County. We aim to provide all of our clients with very knowledgeable, aggressive, and affordable representation.  Contact us today for a consultation with one of our experienced attorneys and let us fight for your family. 

What You Need to Know About California Divorce Law

Attorney with court gavel for California Divorce Law

When love doesn’t end up as “til death do us part,” you need to know your rights. There are many things to consider, both for your financial and legal rights. 

In California divorce Law, family circumstances such as the number of years married, children, and spousal support will determine the rights and length of time for the divorce to be final. 

California is a “no-fault” divorce state. This means that no party is found at fault in the divorce. The most common reason for filing is irreconcilable differences, meaning that you have exhausted all means of reconciling and still want to get a divorce. 

So, what are your rights in the state of California? Let’s take a look at them.

Division of Property for California Divorce Law

In California, your property is considered either separate or community property in the case of a divorce.

Separate Property

Separate property refers to any money or debt belonging to an individual before the marriage. The property may be:

  • Any real property owned – houses, rental properties, etc.
  • Any gifts or inheritances received from family or other individuals
  • Property in one individual’s name only during the marriage but not used by the other spouse or for the benefit of the marriage
  • Any property or debts designated as separate in a prenuptial agreement

Community Property 

This refers to any real property, money, or debt obtained during the marriage and benefits both parties. In California, this property is to be equally divided between both parties of the divorce. 

The type of property considered community are:

  • House
  • Car
  • Furniture
  • Clothing
  • Bank accounts and cash
  • Pension plans and retirement accounts
  • Business
  • Patents

If there is no legal way to divide equally, both parties will need to agree on the property’s distribution. 

Commingling Property

When there is a combination of community and separate property, this is called commingling property. 

For example, if a spouse owned a house before the marriage and sold it after getting married, using the profits as a down-payment on a new home, the down-payment is considered separate property. But if the house payment is made using both parties’ income, the equity is deemed commingled. 

It can get complicated separating commingled assets. Your lawyer and the courts use different methods to trace the assets’ origin and determine how to divide them. It’s best to consult a lawyer to figure out the best way to approach dividing commingled assets. 

Same-Sex Marriage & Divorce

The U.S. Supreme Court declared same-sex marriage legal nationwide in 2015. In California, same-sex divorce is the same as a heterosexual divorce. 

As long as you meet the legal requirements, including residency, the divorce will proceed as usual. Property and child support are also treated equally under California divorce Law. 

Spousal Support (also known as Entitlements)

Upon divorce, you may be entitled to spousal support. There are specific requirements to determine eligibility for entitlements. The spousal order outlines the amount a spouse or domestic partner pays the other party. 

The following conditions qualify for spousal support are:

  • The length of the marriage
  • Any issues of domestic violence
  • The age and health conditions of both parties
  • Ability to pay by supporting spouse
  • Tax consequences
  • The goal of self-support

If you feel you are entitled to spousal support or want to know your options, your lawyer can advise if you meet the requirements and how to proceed.

Child Custody & Support

Child custody and child support can get messy and complicated. It’s best to work with your lawyer to determine the best way to proceed. California custody and support laws do provide guidelines for determination. 

The court uses the following criteria to determine child support:

  • Net income of both parents
  • Age of children
  • Time children spend with each spouse
  • Who declares children as dependent for tax purposes
  • Retirement plan contributions
  • Health insurance costs
  • Mortgage interest and property taxes of both parents

As far as custody of children goes, there are two types: Joint & Sole custody. Joint custody is when both parents share the rights and responsibility for the child(ren) to make decisions on health, welfare, and education. 

For sSole custody, one parent has the full responsibility of health, education, and welfare of the children(ren). In joint custody, the children(ren) spends time with both parents as determined by each party and the court. When sole custody is determined, the children(ren) live with one parent, and the other parent has visitation as determined by the courts. 

Where to Find Help

At Azemika & Azemika, our law firm’s practice specializes in the field of family law. As a result, we can handle divorce cases, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions. 

With efficiency and great attention to detail, our partners at Azemika & Azemika Law use our vast experience in family law to customize each case to our clients’ needs. Contact us today for a free case consultation.

Setting Aside Family Law Judgements in Kern County

Setting Aside Family Law Judgement in Kern County and child custody attorney bakersfield ca

Divorce or legal separation proceedings are already emotionally taxing on the involved parties, especially when a verdict is unfair. Setting aside family law judgement is a particularly complex process that you cannot handle without an experienced family law attorney.

The Code of Civil Procedure and Family Code has many applicable laws you will need help navigating. An easy way to avoid this situation entirely is by contacting an attorney before you sign any agreements but, assuming you are already in an unfavorable position due to a signed settlement, we will address your options at that point. 

This legal guide will help you understand the process of setting aside judgments and will help you understand how the process is started. 

How Do I File A Set Aside Order in Kern County, California? 

So you signed a settlement agreement in your divorce or separation case, and now you think there is something legally incorrect about it. First, you will need to establish legal ground for your order. Your attorney can assist you in this process. An attorney can scan the agreement and establish permissible legal grounds for your set aside order.

It starts with an RFO. 

After speaking with an attorney and establishing your legal footwork, you will need to file an RFO or a Request for Order. This document is the first part of the process for setting aside a judgment. It contains certain forms and other pleadings. In the RFO, you will address what relief you are seeking and why. Additionally, you can file another declaration that sets forth your testimony as to why the judgment should be set aside. You and your attorney will need to write it on a pleading paper, sign and date it.

You have to file the RFO in the same court which reached the initial judgment in your divorce or separation case. The standard recommendation is that you file a Points and Authority for your motion when trying to set aside a judgment in a family law case. 

What Law Can I Cite For My RFO? 

What laws you reference in your RFO depend entirely on your legal argument for a set-aside judgment motion. In family law, a common procedure for arguing against the judgment is under Civil Procedure 473(b) which is seeking relief from the judgment against you due to your or your attorney’s mistake, excusable neglect, inadvertence, or surprise. If you are claiming it under your own mistake or neglect setting aside judgment is at the court’s discretion. However, if it was a mistake made by your attorney, the court must grant you relief from the judgment. 

There are only two avenues that constitute a mistake or neglect when citing Civil Procedure 473(b) as the argument in your RFO. There is a mistake of fact and a mistake of law. These are defined as the following: a mistake of fact is when you believe the facts are different than what they actually are, and a mistake of law is to misunderstand the legal consequences of known facts.

You can apply a claim of surprise or inadvertence to your proceedings if you are placed in a situation to your detriment through no fault of your own. Considering surprise or inadvertence, the court assesses whether these occurred by determining if an average person under similar circumstances might have made the same error as you. 

Excusable neglect is applied to your pleadings if you suffer from a disability, such as mental confusion, certain illnesses, or if English isn’t your first language. 

How Much Time Do I Have To File My Motion?

You have six months to file your relief motion under Civil Code Procedure 473(b). It is important to note that when you are seeking to set aside a default judgment, the six month period begins from the entry of default, not the entry of judgment. Or in the case of citing your attorney’s mistake as the reasoning for relief, the six-month period begins from the entry judgment date. 

Regardless, It is important that you act fast if you decide to file a motion to set aside a judgment. Six months may seem like a long time, but legal proceedings can take months, not to mention the time it takes finding the right attorney for you.

Contact an Experienced Kern County Family Law Attorney

Setting aside family law judgement requires an attorney’s detailed expertise.
At Azemika & Azemika Law, we are dedicated to providing aggressive and knowledgeable service at an affordable cost. It is a fact that a breakdown in a relationship or marriage can be stressful and traumatic. With a combined total of over 42 years of experience in Family Law Matters, our partners are exclusively devoted to assisting our clients through these difficult times by restoring the peace of mind you and your loved ones deserve.

Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

sample case about legal custody of Child and child support in california

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.