The Supreme Court Interrets "Living Separate and Apart" in Marriage of Davis

Living-separate-under-one-roof.JPGIn Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be "living separate and apart" within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.

In Davis, the parties seem to agree that their marriage was "over" sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.

supreme-court.jpgThe Court's decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term "living separate and apart" required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term "living separate and apart" had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, "living separate and apart" required that the wife establish "her own place of residence."

The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while "they continued to literally share one roof." For now, what this means exactly is up to the lower courts, or possibly the legislature.

Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren't separated, the spouse will, for instance, continue to have a one-half interest in the other spouse's earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.

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Same-Sex Divorce

same-sex-divorce.jpgIn recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California's same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker's ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations ... It forces them to follow a complicated procedure to file their state and federal taxes jointly ... It prohibits them from being buried together in veterans' cemeteries."

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the "marriage" for purposes of spousal support?

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There is Life After Divorce

life-after-divorce.jpgThere may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that "transitions such as separation and divorce do not have a long-term effect."

While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which "suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people." So, in other words, the move to end an unhealthy marriage has health benefits.

broken-heart.jpgRegardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.

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When A Military Parent is Deployed

military-parent.jpgSan Diego is home to a great many families who serve our country in the armed forces. However, as is often the case, members of the military are deployed for periods of time away from home and separated from their families. Deployment is stressful for families, but takes on an added dimension after a divorce when parties have crafted a parenting plan for their child. What happens to your parenting plan when you are deployed overseas?

The State of California has made it a matter of public policy to ensure that a parent who is unable to follow a parenting plan due to their deployment is protected. California Family Code Section 3047 states, in part, that being deployed for military purposes shall not be a reason for a modification of a parenting plan on its own. It further states that upon a parent's return from deployment there is a presumption that the parties' return to the pre-deployment parenting plan. Any changes to that plan would require a showing that a reversion in not in the best interests of the child.

military-parenting-deployment.jpgThe courts have recently reiterated the importance of Section 3047 in Marriage of E.U. and J.E. which requires both a speedy resolution to custody matters for a parent returning from deployment and placing the initial showing on the non-deployed parent to show why a reversion is not in the child's best interest. This ruling strengthens a deployed parent's rights upon their return.

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When is a Custody Order Really "FINAL"?

child-custody-tug-of-war.jpgHaving to litigate the issue of child custody can be an emotionally exhausting process. Litigation also tends to fray the relationship between the parents and the resulting tension almost always affects the children in some form. Clients justifiably want to know: when will it end?

Under California law, the Court continues to have the power to make child custody and visitation orders until a child turns 18. The orders can be changed at any time upon the filing of a motion. However, this doesn't mean that the Court starts from scratch each time a parent files a motion to change the parenting plan. Sometimes, the law requires that the Court apply the changed circumstances rule, which makes it significantly more difficult to change custody. In these cases, the Court must find that there are significant changed circumstances exigent to the health, safety, and welfare of the child before it changes custody.

So when does the changed circumstances rule apply? It applies when there is a "final judicial custody determination" as stated in the Montenegro v. Diaz California Supreme Court case. If the parents litigate the issue of child custody at a trial or post-judgment hearing, these custody orders would be "final" and subject to the changed circumstances rule. A stipulated custody order or judgment that contains a clear, affirmative indication that the parties intended the stipulation to be a final judicial determination of custody will also invoke the changed circumstances rule.

child-custody-co-parenting.jpgIt is important to note that there are many circumstances where the Court makes an order after a contested hearing, but the order is not considered final. Temporary child custody orders and custody orders made pursuant to a Domestic Violence Restraining Order request, for example, are not considered final judicial custody determinations. Therefore, the changed circumstances rule does not apply to these types of orders.

Even though a finding of changed circumstances may be required to change custody, the Court never has to find changed circumstances to make slight modifications to the visitation schedule, pursuant to the Enrique M. v. Angelina V. case. Adding an overnight, for example, would probably not invoke the changed circumstances rule. In these situations, the Court would apply the best interests of the child standard as set forth in Family Code section 3011.

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They Want to Move Where?!

divorce-moving-overseas.jpgPeople from around the world settle in California and specifically San Diego for many reasons, for example, our beautiful weather, or to work in the booming biotech industry. When they arrive, they marry, have children and become an integral part of the diverse San Diego community. While oftentimes people plan on staying permanently, sometimes they decide to return home. What happens when your divorced spouse wants to move with your child overseas?

For example, actress, Kelly Rutherford, is involved in a very contentious international custody dispute. After an initial joint custody award, her ex-husband gained custody of their children when his visa required him to return to Monaco. The ability of a parent to move with a child out of state or even out of the country can be very contentious. One parent's relationship with the child will be irrevocably changed. While the determination of a move-away case can be extremely complex and fact specific, as with all matters involving children, the court relies on what it believes are in your children's best interests before issuing a ruling.

divorce-moving-suitcase.pngHowever, if one parent moves without permission from the court, you may have recourse if your spouse moved to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"). The Hague Convention gives parents recourse if the moving parent has taken a child without permission, or sometimes if they are in non-compliance with a custody and visitation order. The Hague Convention attempts to return the custodial arrangement to the status quo before the abduction and it gives a framework for different jurisdictions with different laws to work together for the benefit of the child. The issues surrounding the Hague Convention are complex and require diligence to ensure the best outcome for your child.

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Why Mediation?

trace-rhonda-adkins-getty-3.jpgCounty music singer Trace Adkins has just ended his divorce from his wife of 17 years, Rhonda. While the split has been in the news, the terms of the divorce have remained quiet. The reason why the parties were able to reach a resolution of their issues without a judge making a ruling and there is being a public record is because they utilized mediation.

Mediation is a process wherein the parties involved in a dissolution meet with a neutral third party mediator to work toward a settlement. The mediation process is voluntary and private to allow for flexibility in the process. In order to facilitate open communication and dialogue between the parties in mediation the State of California enacted Evidence Code §§1115-1128, which protects the confidentiality of the process. This means that disclosures made during mediation generally cannot be used if the parties decide later to litigate their matter in the Family Court.

Mediation is a valuable process to allow for parties to speak candidly and can be beneficial in complex, high asset cases. The parties can represent themselves or utilize attorneys to advocate for them during the process. Mediation can often keep legal costs down and allow for personalized settlement results in a less formal atmosphere.

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What do I do with my Thrift Savings Plan during my divorce?

retirement-tsp.jpgIf you are a member of the uniformed services or work for the Federal Government you are eligible to sign up for a Thrift Savings Plan ("TSP"). A TSP is a retirement savings plan similar to a 401(k), and it often supplements other retirement plans such as Federal Employee Retirement System (FERS) or your military retirement. Even though it is similar to a regular 401(k) it is managed by the Federal Thrift Investment Board, which is an independent government agency, as opposed to a private financial services company.

When you retire your TSP is treated the same as a 401(k). During your working years you place a portion of your pretax earnings into your TSP account and those funds are taxed when removed post retirement. Because a TSP is similar to a 401(k) they are treated in the same way during a divorce. The community portion of the TSP (the amount accrued during marriage), are divided pursuant to a specially prepared order. A Thrift Savings Plan does not fall under the Employees Retirement Income Security Act ("ERISA"), rather the order must meet different requirements under Federal Law (5 United States Code sections 8435(c) and 8467, and 5 Code of Federal Regulations part 1653, subpart A).

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Never Look a Gift Horse in the Mouth

bobby-flay-stephanie-march.jpgThe divorce battle between celebrity Chef Bobby Flay and his Wife of a little over 10 years, Stephanie March, have been anything but civil. At the heart of the divorce is a premarital agreement executed by the parties before they said their nuptials. The agreement clearly lays out what Stephanie is entitled to receive with regard to property and support. The jury is still out on whether the premarital agreement will hold up, but that is a blog for another day.

The most recent fight (of which there have been many) revolves around a racehorse named "Dad's Crazy" which Bobby allegedly purchased for Stephanie back in 2009. Stephanie alleges the horse was purchase as a 4th anniversary gift. Apparently the horse was quite successful, raising in excess of $130,000 in winnings, which according to Stephanie, Bobby kept to himself. The horse has subsequently sold for $60,000 and, again according to Stephanie, Bobby kept the sale's proceeds as well.

If you have followed our blog for any amount of time, you will know that any property acquired during marriage that was acquired by way of "gift" is the separate property of the recipient of the gift (Family Code §770). Seems pretty simple, right? Bobby (allegedly) gave the horse to Stephanie as a gift and therefore it is her separate property. It would then follow that the winnings and the sale's proceeds would also be her separate property.

You know if it were that simple I would not be writing this blog. You see gifts between spouses do not work the same as gifts to a spouse from a third party. Gifts from third parties are almost always the separate property of the recipient. I say "almost always" because this is family law after all, and nothing is ever perfectly certain.

When you have a gift between spouses you need to have writing transferring the property from either the separate property or community property of the giver of the gift to the separate property of the recipient for there to be a valid transmutation; which is just a fancy word for changing the character of the property. The simple reason (and yes, I am simplifying this a great deal - I could spend several blogs discussing transmutations) is that you need to be able to prove intent. Generally this comes in the form of a writing of some kind.

The exception to the requirement for a valid transmutation is found in Family Code §852(c) which says:
"This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage."

This short code section is the reason why parties, almost without exception, keep their engagement and wedding rings, jewelry, personal property and clothing acquired during marriage. These items are easy to distinguish, because they are specifically mentioned in the statute. The analysis becomes more difficult when you get to the line "or other tangible articles of a personal nature."

This is one of those sentences that absolutely defies a precise definition, but as Justice of the Supreme Court of the United States, Potter Stewart, said when he was asked to describe the threshold test for obscenity, "I'll know it when I see it." That's just it, it will always be a case by case basis.

As an example, in the case Marriage of Buie and Neighbors, Husband argued that Wife's gift of a Porsche given to him for his birthday was his separate property under the exception in Section 852(c). The court disagreed holding that an automobile is not an article of a personal nature within the meaning of the section. Though it probably would not have changed the court's holding, it is worth noting that Husband purchased the car with Wife's separate property as a birthday gift, without first asking Wife if that was okay.

So, how will "Dad's Crazy" be worked out? If I was a betting man (and I am...I was raised in Las Vegas after all), I would bet on the horse being deemed community property, and Bobby will be entitled to recoup any money he put into the horse's purchase. As for the money that was earned by "Dad's Crazy," that will also be community property subject to reimbursement by Bobby. This all assumes there is no provision in the premarital agreement about purchases made during marriage and how they are treated upon dissolution.

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Changing Jobs When There is a Support Order

New-Job-support-orders.jpgIf you're a big fan of the "Simpson's" you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse's current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. The Law Offices of Nancy J. Bickford is experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.

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Pets are People Too, Right?

pets-divorce-custody.jpgPets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp's dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?

California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.

However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties' children due to the bonds that develop between children and pets, but every case is different.

The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.

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One Day Divorce, One Year Later

one-day-divorce-2.jpgAsk most family law litigants in San Diego County their opinion on the speed with which their divorce case progresses through the Family Court, and I promise you the results will not be positive. There are many different reasons divorce cases take so long to complete. Some are related to the parties or their case such as complex asset division, highly contested custody issues, or difficult litigants. Other issues the parties have no control over such as decreased court budgets resulting in less staff and an increased case load due to an increase in family law filings.

Recently the Connecticut House of Representative granted final legislative approval to a bill that would not only make the divorce process quicker but cheaper as well. To be eligible for the program, neither of the parties can be receiving Medicaid benefits or own any real estate. Neither part can have a defined benefit retirement plan (also called a pension), since dividing these plans complicates cases. It does not mention whether the parties can have a 401(k) plan (the most popular retirement plan offered by employers) and still qualify for the program. Finally, neither party can have a restraining order issued against them.

The goal of the new legislation is for divorces to be granted more quickly, leaving judges with more time to address contentious cases. This would help clear the calendars in the family courts and hopefully speed things up for the other litigants.

This is the same goal the One Day Divorce program in San Diego had when it launched in March 2014. We blogged about the program last year and explained the process. I encourage you to take a look at the blog if you have not read it already.

So, how is the One Day Divorce program doing a year later? Not surprisingly, it has been big success...and a popular one at that. The program has not released any data, but what I can tell you is I have heard great things about the program, and every time I walk by the One Day Divorce office it's busy processing about five cases a day.

For more information about the One Day Divorce program, visit the San Diego Court website. From here you can complete a simple questionnaire to see if you qualify for the program.

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The End of the Nuclear Family and the Rise of the Single Parent

single-parent.JPGThe iconic image of the American Family has changed according the Pew Research Center. Today, less than half (46%) of U.S. children under the age of 18 reside with two married heterosexual parents in their first marriage. In fact, 34% of U.S. children are being raised by a single parent.

Whether you are participating in a conscious uncoupling like Gwyneth Paltrow and Chris Martinor you are a single parent raising a child, the challenges and joys of raising children on your own are enormous and the issues involving custody disputes can seem complex. Are the California Family Law courts keeping pace with our new culture?

The answer is yes. California is at the forefront of ensuring that no matter what your personal situation, you are dealt with fairly and respectfully. The law does not distinguish between previously married and unmarried parents in custody cases. That makes the Family Court a vital resource in protecting your rights as a single parent, whether you are seeking a custody order you require child support. If you are not married to the other parent, a Judgment of Paternity is an important first step. However, navigating the Family Court system in California can be daunting, especially when you are trying to put your side of the story before the court. The Law Offices of Nancy J. Bickford is experienced in representing clients in their paternity and custody disputes in the Family Court and we are experienced in dealing with the complexity of the modern family dynamic.

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Mental Health and Your Custody Dispute

mental-health-child-custody.jpgIssues revolving mental health and welfare are often stigmatized in our society. Whether someone is suffering from a short term situational depression, or suffers from depression and bipolar disorder, they oftentimes suffer in silence; afraid of how others will perceive them. This week Kim Kardashian participated in a Google hangout, wherein she discussed her passion for mental health issues and the documentary she produced called #redflag. Her documentary is about mental health in the age of social media.

If you or your ex-spouse is suffering from an issue involving mental health, seeking treatment is always the best course of action. However, how do issues of mental health affect your child custody dispute?

The California Constitution provides a broad right to medical privacy; this is generally referred to as doctor-patient privilege, but it also covers psychotherapists, which is a broad category that encompasses Marriage and Family Therapists. Usually your records remain private. However, in child custody cases in California this right is not absolute. The court may decide to review your medical records to help determine what is in your child's best interests. This requires the side seeking to access the records show that issues involving mental health will affect your child.

However, the court is aware that just suffering from a mental health issue does not preclude you from having a loving and happy relationship with your child. So as long as you are receiving treatment and taking care of yourself the court will support your relationship with your child.

If you feel that issues of mental health and medical privacy are being raised in your case, The Law Offices of Nancy J. Bickford is experienced in dealing with the privacy protections at issue in custody cases to ensure your privacy is respected.

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Step-Parent Adoptions

step-parent-adoption.jpgBlended families, a family consisting of a couple and their children from their current and all previous relationships, are a regular part of American life. That is why the following statistics should not be surprising:
• 48% of all first marriage will eventually end in divorce;
• 79% of women and 89% of men will marry again within 5 years;
• 43% of marriages today in America involve a 2nd or 3rd (re)marriage;
• 68% of re-marriages involve children from prior marriages;
• 2,100 new blended families are formed every day in America;
• Over 65% of Americans are now a step-parent, a step-child, a step-sibling, a step-grandparent or touched directly by a step-family scenario

In many cases, the children will grow very close to a step-parent and in cases where one of the biological parent's is absent from that child's life, the step-parent may consider adopting their step-child.

In a step-parent adoption, one biological parent retains full parental rights and the other biological parent's rights are terminated. The parental rights are then passed to the adopting step-parent; meaning the biological parent no longer has any rights or responsibilities owed to the child and the step-parent has all the rights and responsibilities originally held by the biological parent.

step-parent-adoption-heart.jpgIt is important to give due consideration to a decision to adopt a step-child, because step-parent adoption is a permanent transfer of parental rights and responsibilities. Once a step-parent adoption is finalized, it cannot be revoked or nullified, except in very rare situations. More importantly, the adoption is not terminated if the step-parent and biological parent divorce.

A step-parent must meet certain criteria in order to proceed with a step-parent adoption, specifically:
1. The biological parent and the step-parent must be legally married or in a registered domestic partnership;
2. The step-parent must be at least 18 years old and at least 10 years older than the step-child they are seeking to adopt - though in certain circumstances the 10 year rule may be waived;
3. The step-parent's spouse must consent to the adoption;
4. The other biological parent (i.e. the biological parent whose parental right will be terminated by the adoption), must consent to the adoption - this requirement can be overcome, as I will discuss below, in certain circumstances; and
5. If the step-child is 12 years old or older, the step-child must consent to the adoption.

Family Code Section 8604(b) describes how you can overcome the other parent's lack of consent to the adoption of the child by a step-parent. Specifically, "If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with, and to pay for, the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court..."

Family Code Section 8604(c), states:

"Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts."

If you are considering a step-parent adoption, or if you were served with papers notifying you that your child's step-parent has filed an Adoption Request, it is important that you discuss your rights with an experienced family law attorney.

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