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What is Family Law?
Family law is one of the most complex and intricate areas of the law. Often times people think family law is simple, and might not consult with an attorney before getting a divorce, trying to establish paternity, changing a custody or visitation order, seeking child support, or requesting a domestic violence or civil harassment restraining order. Unfortunately, the outcome of a family law matter can be life changing, so it is important to have an experienced attorney to guide you through the entire process. Additionally, depending on the state, adoption proceedings may also be heard in family court.
Divorce is the legal term for the dissolution of a marriage. Either party may file for a divorce, but most states have a cooling off period between when you file and when you can get into court. There are different types of divorce, and often times attorneys for both sides will work together to separate assets before ever going into court.
Paternity can be established in several ways:
· If the man and woman are married, or living together at the time the child is born; or
· the man puts his name on the birth certificate; or
· the man signs a declaration of paternity.
The above scenarios give rise to presumed father status, however, a man who does not fall into any of the above categories, but still wants to establish paternity, can file an action in family court to establish paternity via DNA testing. However, if paternity is established, child support is likely to follow, so it is important to consult an experienced family law attorney before filing anything in court.
Visitation is when one parent does not have custody of a child, yet has the opportunity to spend time with the child. Visitation can be tied to a divorce proceeding, or to a paternity action. In most states a party cannot simply walk into court and ask for visitation, there needs to be an open family law case before a party can make a motion for visitation.
Custody on the other hand, is where a child lives with a parent, and either one or both parents, are allowed to make health, education, and welfare decisions for the child. Custody can be either joint or sole, so it is important to consult with an experienced attorney before entering into a custody agreement.
There are many factors to consider when determining the amount of child support one parent will have to pay. However, in most states, before a court will determine the amount of child support, there has to be an underlying family law action. Similar to visitation, one party either needs to file for divorce or legal separation, or paternity. When the court decides the amount of child support, generally one party pays the other directly; however, there are times when a state agency will get involved. In those instances one party can go to the local child support office and request support. The child support office will file an action to determine paternity, then calculate the amount of support based on a formula. Generally, both the court and the child support office take into consideration how much money both parties make, and how much time the child spends with each parent.
Restraining orders are usually granted for domestic violence, elder abuse, and civil harassment. All three are very serious, and people seeking restraining orders or defending themselves from a restraining order action should consult an experienced attorney.
In order to get a domestic violence restraining order, the two people involved had to have a close personal relationship. Most states define this differently, but generally it means either:
· currently married or formerly married,
· a current or former dating relationship or engagement,
· having a child together, or
· blood relatives, or lived together as members of the same household.
Some states will limit domestic violence restraining orders to some sort of domestic relationship, and call violence between members of the same household or blood relatives a civil harassment restraining order.
A civil harassment restraining order is appropriate for victims of abuse when the abuser and victim do not have a close personal relationship, or in some states when the abuser and victim were not in a domestic relationship.
Elder abuse restraining orders are slightly different in that the victim is either over 65, or between 18-64 and has physical or mental limitations. Elder abuse restraining orders can be for victims of physical or emotional abuse, or for elders who are being taken advantage of financially or are being threatened by someone who takes care of them.
Adoption is a legal process by which a parent/child relationship is created between people who are not parent/child by blood. In order for a child to be adopted the biological parents’ rights must be terminated first. Parental rights can be terminated by either death, or a court decision. Parents can choose to give up their parental rights so their child can be adopted, or the court can terminate parental rights if it deems the parents unfit. Once parental rights are terminated, the child is freed for adoption. Once the adoption takes place, the child will receive a new birth certificate listing the new adoptive parents as parents on the birth certificate.
Adoption is a unique area of law that creates legal issues that people do not generally think of. For example, once parental rights are terminated, that severs the legal relationship of that child with all blood relatives. Meaning, legally speaking, biological grandparents are no longer legal grandparents, which can be important when thinking about inheritance laws, as the child will no longer be included in the natural inheritance. Of course, former biological relatives can write the child into a will, but this is not something that people always think of. Conversely, this means the child will naturally inherit from the relatives of the new adoptive parents. Intricacies like these are why it is important to consult an adoption attorney before making these important life decisions.
Additionally, there are many different types of adoption. People can work with private adoption agencies, child welfare services to adopt a child out of foster care, or international adoption agencies. Also, depending on the state, adoptions proceedings are either heard in family court or dependency court. Most times the actual hearing is informal, and prospective adoptive parents can bring their families to the hearing and even take pictures. However, the process leading up to the adoption, and the forms necessary to complete the adoption can be tricky, but an experienced adoption attorney can walk you through the process.
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