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Family Law is the general term used to refer to matters concerning marital relationships, domestic partnerships, relationships between parents and children, and violence between family and friends. Family law issues include dissolution (divorce), legal separation, child custody and visitation, child support, spousal support and domestic violence restraining orders.
A Dissolution of Marriage or Registered Domestic Partnership (Divorce) is a legal action that ends marriage or a registered domestic partnership.
Residency Requirement - To obtain a divorce in California you or your spouse or partner must have lived in California for the last six months and have lived for the last three months in the county where you file for divorce.
No "Fault" Required - No one has to prove that either spouse or partner is "guilty" or "innocent".
It is not necessary that both persons agree to end the relationship. One spouse or partner cannot make the other stay in a relationship.
It takes a minimum of six months from the date of the divorce papers are served (given) to the other party before a divorce can be final. However, you are not automatically divorced at the end of six months. At least one spouse or partner must complete the required legal process and obtain a written judgment.
A Legal Separation is a legal action filed by a married person or domestic partner who wants to stay married or in the domestic partnership, but also wants to resolve all other issues, such as child custody, child and spousal support and property division.
There are no residency requirements for obtaining a Legal Separation.
Sometimes a person will file a legal separation because he/she does not meet the residency requirement for filing for a divorce. Then, after the residency requirements are met, the action is amended from a legal separation to a divorce.
Sometimes people stay in a marriage or domestic partnership for religious reasons or to be able to retain medical insurance benefits for a spouse or partner.
A Nullity of Marriage or Domestic Partnership (Annulment) is a legal action to determine that a marriage or domestic partnership is not legally valid. An annulment restores the parties to the status of single persons, as though they were never married.
- Certain conditions must be met before an Annulment is granted.
The person who files for the Annulment will have to prove to the court that one of the conditions for an Annulment has been met.
There are no residency requirements.
Paternity (Establish Parental Relationship):
A Paternity case is a legal action filed by an unmarried mother or unmarried father to establish who is the legal father of a child or children. In order to get child support or custody and visitation order unmarried parents must first establish paternity.
There are two kinds of child custody:
- Legal custody, which means who makes important decisions for your children (like health care, education, and welfare), and
- Physical custody, which means who your children live with.
Legal custody can be:
- Joint, where both parents share the right and responsibility to make the important decisions about the health, education, and welfare of the children.
- Sole, where only 1 parent has the right and responsibility to make the important decisions about the health, education, and welfare of the children.
Parents with legal custody make decisions or choices about their children’s:
- School or child care
- Religious activities or institutions
- Psychiatric, psychological, or other mental health counseling or therapy needs
- Doctor, dentist, orthodontist, or other health professional (except in emergency situations)
- Sports, summer camp, vacation, or extracurricular activities
- Residence (where the children will live)
Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision. Either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.
Physical custody can be:
- Joint, which means that the children live with both parents.
- Sole or primary, which means the children live with 1 parent most of the time and usually visit the other parent.
Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with 1 parent than the other because it is too hard to split the time exactly in half. When 1 parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.”
Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with 1 parent most of the time. The parent who does not have physical custody usually has visitation with the children.
Visitation (also called “time-share”) is the plan for how the parents will share time with the children. A parent who has the children less than half of the time has visitation with the children. Visitation orders are varied, depending on the best interests of the children, the situation of the parents, and other factors. In general, visitation can be:
- Visitation according to a schedule: Generally, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion, so parents and courts often come up with a visitation schedule detailing the dates and times that the children will be with each parent. Visitation schedules can include holidays, special occasions (like birthdays, mother's day, father's day, and other important dates for the family), and vacations.
- Reasonable visitation: A reasonable visitation order does not necessarily have details as to when the children will be with each parent. Usually, these orders are open-ended and allow the parents to work it out between them. This type of visitation plan can work if parents get along very well and can be flexible and communicate well with one another. But if there are ever disagreements or misunderstandings, this kind of an open schedule can cause issues between the parents, and the children may suffer as a result.
- Supervised visitation: This is used when the children’s safety and well-being require that visits with the other parent be supervised by you, another adult, or a professional agency. Supervised visitation is sometimes also used in cases where a child and a parent need time to become more familiar with each other, like if a parent has not seen the child in a long time and they need to slowly get to know each other again.
- No visitation: This option is used when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the children for the parent to have any contact with the children
An adoption is the judicial act of creating a legal parental relationship when no biological relationship exists.
In all adoption cases, an investigator writes a report, unless parties are seeking an adult adoption. The report provides important information to the judge about the adopting parent(s) and the child.
If the child is over 12 years of age, he or she must agree to the adoption proceedings.
Stepparent adoptions require the consent or agreement of both parents unless one is deceased.
All California Courts use the same basic Judicial Council forms for adoption proceedings.
Domestic Violence Restraining Order:
A domestic violence restraining order is a court order that helps protect people from abuse, and/or threats of abuse from someone they have a close relationship with. Abuse is defined as any of the following:
Physically hurting or trying to hurt someone intentionally or recklessly;
Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone's peace; or destroying someone's personal property, or impersonating someone on the Internet in order to harm or intimidate them.
A Restraining Order can order the restrained person to:
Not contact or go near you, your children, other relatives, or others who live with you;
Stay away from your home, work, or your children’s schools;
Move out of your house (even if you live together);
Not have a gun;
Follow child custody and visitation orders;
Pay child support;
Pay spousal or partner support (if you are married or domestic partners);
Stay away from any of your pets;
Pay certain bills; and
Release or return certain property.
Lawsuits in civil court can involve a range of areas involving disputes over money, title or possession of real property, enforcing a contract, protecting one's civil rights, or seeking compensation for a civil tort.
Civil court can provide for legal remedies, such as monetary damages, and equitable remedies, including injunctions. Civil courts cannot send someone to jail or prison.
A lawsuit with a monetary amount greater than $25,000.00 to get property back, to force someone to complete a contract, or to protect someone’s civil rights.
A lawsuit with a monetary amount of $25,000.00 or less to get property back, to force someone to complete a contract, or to protect someone’s civil rights.
Civil Harrasment Restraining Order:
A Civil Harassment Restraining Order is a court order that protects people from harassment. You can ask for this court order if you are worried about your safety because someone stalked, harassed, threatened you with violence, financially abused you, or sexually assaulted you. The court can order a person not to: threaten or harass you, contact or go near you, your home, your work, or have a gun. You can also ask for protection for your family members or other household members. You can get a Civil Harassment Restraining Order against people who are not close to you, such as roommates, neighbors, co-workers, or non-immediate family members.
In order to get a court order changing your name or a child’s name, you must file a petition in the Superior Court in the county where you live. You can then use the court order to change the birth certificate, passport, social security card, driver’s license, and other documents. After you file your petition to change the name, you will get a court hearing. Before your hearing, you will have to put a notice in a court-approved newspaper for 4 weeks in a row, one day per week. If you are trying to change the name of your child, you will also have to let the other parent know so that s/he has a chance to come to court if s/he doesn’t agree. If both parents agree, they both can sign the petition to change their child’s name.
Unlawful Detainer (Evictions):
An unlawful detainer lawsuit is a civil case brought by a landlord to obtain possession of rented property and receive payment of back rent. In order to legally evict a tenant (remove and lock the tenant out of the property), the landlord must file an unlawful detainer case. An award for possession of property authorizes the landlord to evict the tenant from the property. If the landlord is also awarded judgment for payment of back rent, he or she may collect the judgment by garnishing the tenant’s wages, attaching the tenant’s property, or any other legal means
Small Claims court is a special civil court where disputes are resolved quickly and inexpensively. The rules are simple and informal. You may ask a lawyer for advice before you go to court, but a lawyer is not allowed to represent you in court.
Generally claims are limited to $5,000. However, an individual may claim up to $10,000. Corporations, partnerships, governmental entities, and other legal entities cannot claim more than $5,000. You can file as many claims as you want for up to $2,500 each in a year. But you can only file two claims a year that demand more than $2,500.
There are a few exceptions to the $10,000 limit for individuals:
- Also, as a natural person, you can only sue a guarantor for up to $6,500 ($2,500 if they do not charge for the guarantee). A "guarantor" is a person or company that promises to be responsible for what another person owes. (If you are an entity other than a natural person and the guarantor charges for its services, you may file a claim for up to $4,000.)
- But, you can sue the Registrar of the Contractors (the executive officer of the Contractors State License Board) as a guarantor for up to $10,000.
Collections agencies cannot sue in small claims court to collect on debts that are assigned to them.
A criminal action is the proceeding by which a person charged with a public offense is accused and brought to justice and punishment. A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.
A felony case is a criminal action in which the defendant is charged with violation of a felony. Misdemeanor or infraction violations may be included. The maximum punishment for a felony may be imprisonment in state prison or county jail, a fine, or both. In some cases, the death penalty may be imposed.
A misdemeanor case is a criminal action in which the defendant is charged with a misdemeanor and it may include an infraction charge. It does not include any felony violations. The maximum punishment for misdemeanor violations is not more than 6 months, a fine not exceeding $1,000, or both.
An expungement allows you to reopen your criminal case, set aside the conviction and dismiss the case. As a result, your criminal record will no longer show the conviction. However the expungement will continue to appear on your record. It is important to note that the expungement does not clear from your record the fact that you were arrested or that charges were filed.
Following a successful expungement, if a potential employer asks if you have ever been convicted you can honestly answer “no”. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed. Answering "No" may look dishonest. A better response may be "Yes, expungement granted."
If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate or permit, the conviction will likely be discovered during the standard background check. You should disclose the conviction and expungement in these situations.
If you are applying for a government-issued license, certificate, or permit, you must disclose your conviction and expungement.
The conviction can still be used against you in future criminal proceedings and by the DMV for purposes of suspending or restricting your license. A successful expungement does not relieve you of any prohibition on the ownership or possession of firearms resulting from the conviction.
A guardianship is a court case in which a person who is not the parent of a child asks for custody of the child, the power to manage the child’s property, or both. There are two types of guardianships. Most cases go to the Probate Court. But if the child is a dependent or ward of the juvenile court, guardianship must be decided in Juvenile Court.
A conservatorship is a court case in which a judge appoints a family member, friend or other responsible person (called a conservator) to care for another adult who cannot care for him or herself (called a conservatee). Once you are appointed conservator, you are legally responsible to provide care for the conservatee’s daily needs.
There are three types of conservatorship actions:
General Probate Conservatorship is for adults who are unable to provide for their personal needs due to physical injury, dementia or other reasons rendering them incapable of caring for themselves or making them subject to undue influence.
Limited Conservatorship is only for a person who is developmentally disabled. In this type of conservatorship the powers of the conservator are limited so that the disabled person may live as independently as possible.
LPS (Lanternman-Petris-Short) Conservatorship (W&I 5350-5371) is for a gravely disabled person who may be a danger to themselves or others and requires hospitalization in a psychiatric facility. An LPS conservatorship requires the annual reappointment of the conservator. A person under an LPS conservatorship may be placed in a locked facility. There are many extra protections in LPS conservatorships to insure that the conservatee's civil rights are not being violated.
U.S.A. California Cours The Judcial Branch of California. California Courts The Judicial Branch of California.
N.p., n.d. Web. Nov.-Dec. 2015. http://www.courts.ca.gov
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