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How a Court Decides Partition by Sale vs. Partition In-Kind [California Real Estate]

How does a California Court decide Partition by Sale of Property Over Physical Division? One common dispute between co-owners is whether to partition the property by sale or physically divide the property, known as partition in kind. This article provides the advice of an experienced partition attorney in California on how courts decide between these two...

Partition California In-Kind By Sale Attorney Lawyer Los Angeles Orange County

How does a California Court decide Partition by Sale of Property Over Physical Division?

One common dispute between co-owners is whether to partition the property by sale or physically divide the property, known as partition in kind. This article provides the advice of an experienced partition attorney in California on how courts decide between these two outcomes of a partition action.

What is a partition action in California?

A partition action is the only court ordered process under California law to end disputes over-co-owned real estate. Under California Code of Civil Procedure Section 872.210, the court must divide California real estate equitably among its co-owners. More information on partition actions in general can be found at Ultimate Guide to Partition Actions in California.

What is the difference between partition by sale and physical division (partition in kind)?

A complaint for partition by sale can be granted whereby a court orders sale of a jointly owned property and all owners receive their corresponding shares. Physical division, or partition in kind, occurs when a property is divided so that each owner receives undivided interest in his or her own share of the land. In general, courts will prefer physical division over partition by sale when ending property co-ownership disputes. Partition is by physical division unless the parties agree on a sale or the court determines that partition by sale would be “more equitable.” Code Civ. Proc §§ 872.810, 872.820; see 12 Witkin, Summary 11th Real Prop § 73 (2020).

How does the Court Choose Between Partition by Sale vs. Partition In-Kind?

The leading treatise on real estate law in California, Miller & Starr, explains that “[t]he burden of proof is on the party who seeks a sale, rather than a physical division, to prove that it would be ‘more equitable’ to sell the property rather than to divide it and distribute portions in kind to the cotenants.” Right of partition—Partition by a sale of the property, 4 Cal. Real Est. (4th ed.) § 11:17. “In order to compel a sale rather than a physical division, it must be shown that either: (1) a division into subparcels of equal value cannot be made, or (2) a division of the land would substantially diminish the value of each party’s interest, such that the portion received by each cotenant would be of substantially less value than the cash received on a sale.” Id.

The seminal case of Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 366–67:

There are two types of evidence which have been held sufficient to justify a partition sale of property rather than physical division. The first is evidence that the property is so situated that a division into subparcels of equal value cannot be made. This test is not met by evidence that a portion of the property is not equal to the whole, for that is always the case in a partition action. Nor is this test met by evidence that the land is not “fungible” or uniform in character. (See Williams v. Wells Fargo Banksupra., 56 Cal.App.2d at pp. 647-648.) In order to meet this test the party desiring a partition sale must show that the land cannot be divided equally. (East Shore Co. v. Richmond Belt Railway (1916) 172 Cal. 174, 180.) An example of this type of situation is provided in Sting v. Beckham (1949) 94 Cal.App.2d 823, where it was shown that the major value of the land consisted of a water well and that without the well the land had little value. In that case physical division of the land would have required an award of the subparcel with the well to one party to the manifest prejudice of the other party. Another example is provided in Priddel v. Shankie (1945) 69 Cal.App.2d 319, which involved a small (40 feet by 140 feet) inside lot with structures located in such a way as to preclude equal partition.

The referee appointed by stipulation of the parties concluded that parcel B was capable of physical division and that this was the most equitable solution. That parcel could be divided into a north and a south parcel of approximately 90.5 acres each and provision could be made for access easements over existing paths. Plaintiff initially conceded the fairness of such a division before a change of mind based upon factors extraneous to the feasibility of physical division. Upon such a change of heart it was incumbent upon plaintiff to prove that the land was not capable of equal division; yet the record is insufficient in this regard. It may be admitted, as defendant in fact conceded, that ownership of the entire parcel B would be more advantageous to plaintiff. That concession, however, does nothing to establish that the property is not capable of equal division. Moreover, any potential prejudice through an imprecise division was obviated by defendant’s offer to permit plaintiff to select which of the subparcels it desired. Sale of the property is thus not supported by this first type of evidence.
The second type of evidence which supports a partition sale rather than physical division is economic evidence to the effect that, due to the particular situation of the land, the division of the land would substantially diminish the value of each party’s interest. The generally accepted test in this regard is whether a partition in kind would result in a cotenant receiving a portion of the land which would be worth materially less than the share of the money which could be obtained through sale of the land as a whole.  This is a purely economic test. If plaintiff, who demands that the land be sold, can receive a portion of the land through physical division and that portion could be sold for a sum equal to the amount it could realize through sale of the entire parcel then as a matter of law no economic prejudice can be shown. The manifest inequity of ousting an unwilling cotenant from the land where no economic detriment is suffered cannot be permitted. An example of this type of situation is provided in Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397, there a 17.4 acre movie studio had been developed in such a unique manner that physical division would result in damage to the aggregate value of the land in the amount of $1.5 million.
As Witkin explains, “‘great prejudice’ from physical division (former C.C.P. 752 et seq.) is no longer a prerequisite to sale. (Law Rev. Com. Comment on C.C.P. 872.820; see Butte Creek Island Ranch vCrim (1982136 C.A.3d 360365186 C.R252 [although ‘great prejudice’ need not be shown before sale, presumption in favor of physical division over sale still controls].)” Determination of Manner of Partition., 12 Witkin, Summary 11th Real Prop (2020) § 73; see generally 48 Cal. Jur. 3d Partition § 65. Witkin continues that a “sale may be more equitable if, for example, the value of the whole would exceed that of the divided parcels, or zoning restrictions make physical division impracticable.”

Consult an Experienced Partition Attorney in Los Angeles, Orange, San Diego, Riverside, and San Bernardino Counties

Co-owners of real estate in California are best advised to consult a real estate attorney with experience in real estate litigation. Understanding the strategies and defenses to a partition action will allow you to obtain the best possible outcome. Contact Talkov Law at (844) 4-TALKOV (825568) or info(at)talkovlaw.com.


The #1 Consent for Stepparent Adoption Template Form [Free Example Sample]

Skilled Family Law Attorney Creates the Ultimate Consent for Stepparent Adoption Template and Reveals it for Free!

Consent for Stepparent Adoption Template Example Free Sample Form Termination Parental Rights

Consent for Stepparent Adoption Template Free Sample Example

When a biological parent agrees to terminate his or her parental rights and consent to a stepparent adopting his/her child, the hard part is over, right? So why is it that when you Google “Consent for Stepparent Adoption Form” the results are anything but easy to sift through?

Isn’t there a Judicial Counsel Form for a biological parent to sign to terminate his or her rights and consent to a stepparent adoption? The short answer is no.

Many courts in California have a local form for this purpose, and there is a form that can be used (if you can find it) from the California Department of Social Services, but having closely studied the adoption and freedom from parental custody and control provisions of the Family Code, it does not appear that this form, or any others available online, contain the language that seems to be required for termination of parental rights and consent to a stepparent adoption.

For this reason, the knowledgeable adoption attorneys of Talkov Law have created a document to assist families and make this complicated process a little easier. This consent form is drafted for cases meeting the abandonment criteria of Family Code § 7822 (a)(3) and § 8604 (b), (c).

We also provide free templates for:

Child Custody Agreements

Pet Custody Agreements

Agreements to Sell Real Property

Marital Settlement Agreements

Consent for Stepparent Adoption Template Example Free Termination Parental Rights Sample Form

It is highly recommended that you contact a skilled family law attorney prior to using this template. Adoption law in California can be frustrating and unclear when litigants attempt to navigate the process on their own. If you choose to use this template without contacting an attorney, keep in mind that the biological parent MUST sign this document in the presence of the court clerk in their county, or in the presence of a notary, probation officer, etc.

Consent for Stepparent Adoption Template Form [Termination of Parental Rights Example Sample]

[NAME]

[ADDRESS]

[TELEPHONE NUMBER]

[EMAIL]

 

1. I, [Biological Parent], am the natural and biological parent of the minor child, [Minor Child], [Date of Birth], pursuant to the [Judgment of Paternity, Birth Certificate, or Other Document Establishing Parentage].

2. I understand that the Petitioner in this instant matter, [Stepparent], is the spouse of the minor child’s other parent, [Custodial Parent], and stepparent of the minor child.

3. I further understand that Petitioner, [Stepparent], seeks to adopt the minor child, [Minor Child], [Date of Birth].

4. I hereby acknowledge and declare that I have not communicated with, seen, or visited the minor child, [Minor Child], for a period exceeding one (1) year, pursuant to Family Code § 7822 (a)(3) and § 8604 (b), (c).

5. I hereby further acknowledge and declare that I have not paid for the care, support, or education of the minor child, [Minor Child], for a period exceeding one (1) year, pursuant to Family Code § 7822 (a)(3) and § 8604 (b), (c).

6. Based on the above, I hereby give my full and free consent to the adoption of [Minor Child] by Petitioner, [Stepparent].

7. Based on my full and free consent to the adoption, I understand and agree that this document shall be filed simultaneously with the adoption request, pursuant to Family Code § 9003 (a).

8. I understand that with the signing of the order of adoption by the court, I shall be forever relieved from all rights to custody, services, and earnings of the minor child and I may not reclaim said child, pursuant to Family Code § 8617 (a).

9. I also understand that I am voluntarily severing the legal relationship of parent and child along with all the rights and parental duties towards, and all responsibility for, the minor child, and have no right over the minor child, pursuant to Family Code § 8617 (a).

10. I further acknowledge and understand the provision of Family Code § 9004, reading as follows: “Notice to the parent who gives the child for adoption:  If you and your child lived together at any time as parent and child, the adoption of your child through a stepparent adoption does not affect the child’s right to inherit your property or the property of other blood relatives.”

11. I understand that my consent to the adoption of the minor child, [Minor Child], by Petitioner, [Stepparent], may not be withdrawn except with court approval, pursuant to Family Code § 9005 (a).

12. I acknowledge and agree that this document was prepared by the attorney for Petitioner, [Stepparent]. I am not represented by legal counsel at the time of execution of this document. I acknowledge that I have been advised to obtain independent legal counsel, that I have voluntarily chosen not to consult with any attorney, that I have read and understand the contents and legal effect of this consent to adoption, and I have signed it freely and voluntarily.

13. I hereby acknowledge and declare that I am fully and completely informed as to the facts relating to the subject matter of this consent to adoption, and as to my rights and liabilities. I hereby execute this consent to adoption voluntarily, free from fraud, undue influence, coercion or duress of any kind; have given careful and mature thought to the execution of this consent to adoption; and understand each provision of this document.

14. I have not made, nor have I relied upon, any promises or agreements as inducement to execute this consent to adoption. I have read this consent to adoption and I am fully aware of its content and its legal effect.

15. This consent to adoption is executed in the State of California and shall be subject to and interpreted under the laws of the State of California.

Based on the foregoing, and under the laws of the State of California, with the signing of this document my consent may not be withdrawn except with court approval and that with the signing of the order of adoption by the court, I shall give up all my rights of custody; services, and earning of said child, and that said child cannot be reclaimed by me.

 

Executed on ___________, 2020, by______________________________________
[Biological Parent]

 

Consent for Stepparent Adoption Template-example-free-sample-form.pdf

Consent for Stepparent Adoption Template-example-free-sample-form.docx

Notice: Please contact adoption attorney, Colleen Sparks, to advise you of your rights upon an assessment of the facts in your case before using this form or signing an agreement in mediation.


The Ultimate Guide to Termination of Parental Rights in Stepparent Adoptions

A Complete Guide to Termination of Parental Rights in Stepparent Adoptions in California Family Court!

Can a Parent Voluntarily Terminate Their Parental Rights Adoption Attorney Lawyer

Procedure for Termination of Parental Rights in Stepparent Adoptions in California

Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Once the adoption is final, the adoptive parent(s) has/have all the legal rights and responsibilities of a parent-child relationship. The new parent-child relationship is permanent. An adoptive parent can be a stepparent or domestic partner of one of the birth parents, a relative of the child who has been caring for the child, or someone not related to the child by blood.

One of the most common adoption scenarios in California occurs when a stepparent adopts the child of the person that he or she has married. Marriage itself does not provide a stepparent with the legal rights and responsibilities associated with parenting a child. The additional step of having the family court approve the stepparent’s adoption of the stepchild is necessary.

A stepparent adoption begins with the filing of a petition for the adoption.  The petitioner is the stepparent who wants to adopt the child, and the case is generally filed in the county where the petitioner lives (Family Code 9000 (a)). Usually this is the same county where the child resides.

However, in order for a child to be adopted by a stepparent, the parental rights of their other biological, presumed, or natural parent must be terminated. A parent can lose his or her parental rights either voluntarily or involuntarily.

Terminating a parent’s rights is not easy, and for good reason. Parents have a fundamental constitutional right to parent their children and children have a constitutional right to a parent-child relationship.

The process involved in terminating a parent’s rights and adopting a child is not always straightforward, and without a thorough understanding of this area of law it can be frustrating and confusing.

Whether you are a stepparent thinking about adopting your stepchild, a parent wondering if your spouse can adopt your child, or a biological parent thinking about terminating your parental rights, you are in the right place.

Voluntary Termination of Parental Rights in Stepparent Adoption

California family courts only allow parents to terminate their parental rights voluntarily under certain circumstances. Generally, it is only possible to give up parental rights for the purposes of adoption.

If a parent wishes to voluntarily relinquish parental rights for the purposes of adoption, there is a process in place that requires all parties involved to provide the court with adequate notice.

If one parent will retain custody and the custodial parent’s new spouse or partner legally adopts the child, the court will need to perform a review process to ensure the adoption is in the child’s best interests. It is also possible for a parent to relinquish parental rights by refusing to respond to a request for termination of parental rights and/or signing a relinquishment of parental rights form.

When the Biological Parent Consents to Termination of Parental Rights

After the initial petition is filed by the stepparent seeking to adopt his or her spouse’s child, the documents must be served on the biological parent.  Once served, the other parent can sign a form in the presence of the court clerk in their county acknowledging their consent that their parental rights are to be terminated, or in the presence of a notary, probation officer, etc.

The biological parent can also appear in court on the hearing date to acknowledge their consent, or they can inform the social worker conducting the investigation that they consent.  The forms are filed and at the hearing date, the court will terminate the parent’s rights and set a further hearing on the adoption (by this time, the social worker will have completed their report and recommendation).

Termination of Parental Rights in Stepparent Adoptions in California Lawyer Attorney

How to Voluntarily Terminate Parental Rights in Stepparent Adoptions

If the noncustodial parent consents to the adoption and to terminate his/her rights and he or she lives in California, then that parent will need to sign a document consenting to the adoption. The consent document varies from county to county, and is often a local court form.

Alternatively, a pleading can be drafted with the language necessary to consent to the adoption. This document must be signed in the presence of an official court investigator, clerk, or notary public.

Uncontested Stepparent Adoptions

By consenting to the termination of parental rights, the noncustodial parent is giving up his or her rights to visitation with the child and other rights associated with parentage. That parent would no longer be able to pursue legal visitation rights via a court order. By giving up his or her rights in a stepparent adoption, however, the noncustodial parent will become unburdened from certain legal obligations such as being required to pay child support.

Involuntary [Loss] Termination of Parental Rights in Stepparent Adoptions

The other way a parent’s rights can be terminated is involuntarily. Several circumstances may lead to a parent involuntarily losing their parental rights. Typically, the conditions include abuse, neglect, or abandonment of the child.

Examples of reasons a parent may involuntarily lose parental rights are:

  • Physical abuse or sexual abuse of the child.
  • The commission of certain felony offenses.
  • Abandonment.
  • Long-term mental illness or mental incapacity.
  • Long-term substance abuse.

When the Biological Parent Will Not Voluntarily Consent to Termination of Parental Rights

If the noncustodial parent does not want to consent to giving up his or her parental rights, then that parent will need to be notified of the pending petition for termination of rights and given a chance to plead his or her case in front of a judge against termination.

Stepparent adoption cases get extremely difficult when the biological parent that is the “responding party” to the case does not consent to their rights being terminated.  The biological parent’s fundamental constitutional right to parent their children creates a substantial presumption against termination. Unless there is a very serious problem with the biological parent or with the parent-child relationship, the court will not consider terminating the biological parent’s rights.

Contested Stepparent Adoptions

In order to terminate parental rights in family court, a petition to declare the child free from the parental custody and control of the biological parent must be filed and served on the biological parent. In the event the biological parent cannot be found, the petitioning party is expected to take reasonable steps to locate the biological parent and give them reasonable notice of the pending action. If the parent cannot be located, detailed evidence will need to be presented to the court regarding the steps taken took in locating and/or obtaining consent from the other parent.

How to Involuntarily Terminate Parental Rights in Stepparent Adoptions

In contested stepparent adoption cases, the respondent parent has the right to have an attorney appointed to represent their interests.  The family court will routinely appoint an attorney to represent the responding biological parent.  In these cases, the court will usually set a pretrial conference date and parties may conduct their discovery.

Once discovery is completed, the court will set trial and hear evidence on the issue of whether the stepparent’s rights should be terminated because the respondent parent has the right to a trial.

If there is not a “prima facie” case to terminate the biological parent’s rights (i.e. none of the statutory grounds allowing the court to terminate parental rights is set forth in the initial petition), the court will dismiss the petition.

Assuming the petition properly sets forth a prima facie case to terminate the parent’s rights, the parties will each have the opportunity to present evidence and argument at trial in favor of their respective positions. The social worker’s report will have been submitted to the court by the time of trial, and the social worker will most likely testify.  Any other relevant witnesses will also need to testify, and any other relevant, admissible evidence will be presented at that time.

In making its determination on termination, the court will consider the ability of the stepparent to provide a suitable home for the child as well as the biological parent’s fitness and history as a parent, which can including looking at instances of domestic violence, payment of child support, drug and alcohol abuse, and ongoing presence (or lack thereof) in the child’s life.

Termination of Parental Rights in Stepparent Adoptions in California Lawyer Attorney

After the trial, if the court determines that there is not sufficient evidence to warrant terminating the biological parent’s rights that will be the end of the case.  If the court does sever the biological parent’s rights, there is a waiting period to allow for an appeal, and a further hearing will be set thereafter on the adoption (which will be approved because the report will already have made the recommendation).

It is at the final adoption hearing where the child is brought to court, the adoption decree is signed, and the celebration occurs!

Is There an Investigation Process for Stepparent Adoptions?

It may seem unnecessary, especially if the biological parent has fully consented to terminate his/her rights, but there is still an investigation process in stepparent adoptions.

Notably, Family Code 9001 (a) states:

Except as provided in Section 9000.5, the probation officer, qualified court investigator, licensed clinical social worker, licensed marriage family therapist, private licensed adoption agency, or, at the option of the board of supervisors, the county welfare department in the county in which the adoption proceeding is pending shall make an investigation of each case of stepparent adoption.

The stepparent/petitioner can either hire a private investigator (at his/her own cost) or the court will appoint a social worker to complete an investigation as to whether the court should approve the adoption.  The investigator will interview both biological parents, the stepparent, and child.  They will conduct background checks and sometimes do a home visit.  The social worker will draft a written report and provide it to the court recommending either adoption or not.

Restoring Parental Rights – Can A Parent Change Their Mind About Terminating Their Parental Rights?

It is very difficult, and generally not possible, to restore parental rights after voluntary or involuntary loss of those rights. California law does not allow a parent who has lost his or her parental rights to petition for restoration of those rights.

There is a limited circumstance where the child can petition the court to reinstate the parental rights of a parent, but these cases are few and far between. There is typically no way to restore parental rights following an adoption.

Contact A Skilled Adoption Attorney For the Best Results

An adoption attorney can help parents, future parents, and children address parental rights issues. Ultimately, anyone with any concerns about his or her parental rights or the loss of those rights should speak with an experienced family law attorney as soon as possible. Contact us online or call us for a free consultation.


Right to Partition is Absolute in California

Co-owners of real estate in California have an absolute legal right to partition the property, thereby causing the property to be sold and the proceeds distributed.

Lange v. Schilling - Attorneys Fees - Mediation Before Litigation

As a real estate partition attorney in California, the most common question we receive is whether a co-owner has a right to partition a property by sale, meaning a court-ordered sale of the entire property to the highest buyer after the property is marketed to third parties.

California law is clear that the right to file a partition action requesting property be sold is available to any co-owner of real property, known in the law as a co-tenant (tenant-in-common or joint-tenant), is absolute.

One case explained that: “The action for partition may be brought by one or more of the persons described in section 752 of the Code of Civil Procedure. It is a special proceeding regulated by the provisions of the statute and ordinarily, if the party seeking partition is shown to be a  tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

Yet another case set forth that: “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

One treatise on California law explains the issue as follows: “Ordinarily, therefore, if a party seeking partition is shown to be a tenant in common or a joint tenant, the right [to partition] is absolute and cannot be denied, either because of any supposed difficulty or on the suggestion that the interests of the cotenants will be promoted by refusing the application or temporarily postponing the action. The only indispensable requirement is that a clear title be shown, and in no event is a partition to be denied because it might result in financial loss to the cotenants.” 48 Ca Jur Partition § 36.

This is because Code of Civil Procedure Section 872.710(a) provides that: “At the trial, the court shall determine whether the plaintiff has the right to partition.” Code of Civil Procedure Section 872.710(b) goes on to explain that “partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Such concurrent interests include joint tenants and tenants-in-common, i.e. co-owners of real estate.

Even the leading treatise on California real estate law, Miller & Starr, explains under the heading “Absolute right to partition” that “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). While there are very unusual cases in which the right to partition had been waived or otherwise, these cases are so far outside the fact pattern of virtually all co-owners of real estate in California that these strengthen, rather than undermine, that the right to partition is absolute.

This means that the right to partition does not depend upon the fractional interest of the co-tenant. For example, a co-tenant holding only a small fractional interest could file a partition action. One reason the law allows this is that it may be very hard, if not impossible, to market a fractional ownership of real estate, as few parties will be interested in becoming a co-owner with the remaining co-owner(s).

Moreover, the right to partition does not require infighting among the co-owners. For example, an ex-husband can file a partition action even if he has an entirely-amicable relationship with his ex-wife, so long as they are co-owners of the property. Generally, partition actions involve parties who are or were very close, such as family (or former family), intimate partners (or formerly-intimate partners), and close friends (or formerly close friends). Indeed, parties would rarely end up as co-owners unless they did so voluntarily, based on trust existing at the time, or involuntarily, based on a trust, will, divorce decree or otherwise creating the co-ownership.

Further, the right to partition does not depend upon the hardship that a partition may cause to the tenant-in-possession (co-owner-in-possession). For example, an ex-wife can file a partition action that may cause the sale of the house occupied by her ex-husband, a co-owner of the property, even if the ex-husband may have no where else to live. One reason for this is that the ex-husband is welcome to be the highest bidder for the property. To the extent the tenant-in-possession is not the highest bidder, the tenant-out-of-possession should not receive diminished profits from the sale because of the hardship it may cause the tenant-in-possession, who can only offer a diminished sum. To prevent problems caused by a tenant-in-possession who would prefer that the property not be marketed for sale, an experienced partition attorney should request that the court take appropriate action if the tenant-in-possession fails to fully cooperate with an orderly sale of the property.

There are many ways to become a co-owner of real estate, but unless all co-owners agree to sell, there is only one remedy under the law: a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case, co-owners should seek the advice of an experienced partition attorney in California.


Court Ordered Drug Testing in Child Custody Cases

The Role of Court Ordered Drug Testing in Child Custody Cases in California Given the widespread substance abuse crisis impacting families across the nation, it is no wonder the problem has made its way into the family court system in California. The court will not demand drug and alcohol testing under normal circumstances. Generally, one...

Court Ordered Drug Testing in Child Custody Cases California Lawyer Attorney

The Role of Court Ordered Drug Testing in Child Custody Cases in California

Given the widespread substance abuse crisis impacting families across the nation, it is no wonder the problem has made its way into the family court system in California.

The court will not demand drug and alcohol testing under normal circumstances. Generally, one of the parents must request it; however, the court will not grant the request unless the requesting parent can offer evidence of the other parent’s substance abuse problem. If the parent has a history of illegal drug use or an alcohol-related criminal history, this constitutes a “preponderance of the evidence” and meets the burden of proof and the court may require drug and alcohol testing.

Can the Family Court Order a Hair Follicle Drug Test?

The short answer to this question is no. The courts may only order drug and alcohol testing done in the least intrusive method. Typically, this means only urine samples. The court cannot demand hair follicle testing even though this method produces more accurate results and provides results reaching father back in time.

However, a skilled child custody attorney can sometimes negotiate an agreement with the opposing party to get a hair follicle test. This can only be done by agreement, otherwise, testing is limited to urine.

Court Ordered Drug Testing in Child Custody Cases California Attorney Lawyer

It’s important to remember that a positive result on a drug or alcohol test does not automatically mean an adverse outcome in the custody case for the parent who tested positive. This will simply be one of the considerations the family court will consider.

Can a Parent Lose Custody of a Child for Failing a Drug Test?

The California State Legislature has enacted various provisions in the family code directly addressing the issue. Family Code 3011 (a) provides that in making a determination of the best interests of the child, the court “shall” consider:

(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.

(5)(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.

This language creates a mandate on the family court to consider such habitual or continual drug use/abuse, and creates a rebuttable presumption against awarding sole or joint custody to parents who have substance abuse problems – implying that the California State Legislature views substance abuse as a crisis directly impacting the safety and well-being of children.

Court Ordered Drug Testing in Child Custody Cases California Lawyer Attorney Law

The court may also require “independent corroboration” of drug and alcohol use. This could include documented reports from organizations providing substance abuse services, social welfare agencies, law enforcement, courts, medical facilities, and probation departments.

Remember, the court must act in the child’s best interest. Although drug or alcohol use on its own is generally not enough to restrict custody, judges typically find any substance use – even casual, occasional use – to be detrimental to the well-being of the children. Substance abuse often leads to poor judgment, resulting in bad parenting decisions or worse, so the court must acknowledge this in its ruling pursuant to Family Code 3011. Substance use and abuse is also frequently linked to domestic violence incidents.

What You Need to Know Before Requesting a Drug Test in Family Court

If you are thinking about filing a request for the opposing party in your child custody case to undergo drug testing, it is important to remember that the court will likely order that you undergo testing as well. The court will probably either order that you are to pay for the testing (subject to reimbursement if the opposing party fails the test) or that you share the cost of testing equally.

Court Ordered Drug Testing in Child Custody Cases

Speak with an experienced child custody attorney as soon as possible if you are unsure whether you have justifiable grounds to seek a drug or alcohol test in your custody case. A skilled family law attorney can help navigate your child custody case and assist you in determining the best way to approach drug and alcohol testing on either side of the table.


The Link Between Domestic Violence and Animal Cruelty

The Link Between Cruelty to Animals and Violence Towards Humans Explained.

Link Between Domestic Violence and Animal Cruelty

What is the “Link” Between Domestic Violence and Animal Cruelty?

When animals are abused, people are at risk; when people are abused, animals are at risk. – National Link Coalition

The relatively recently discovered correlation between domestic abuse towards humans and animal abuse is modernly referred to as “The Link.”

Increasing awareness of the link is encouraging legislators, community agencies, and caring people to take action by giving greater importance to suspected animal abuse, knowing that they may be also be preventing other forms of violence.

Specifically, a 1983 study notes that animal abuse was found in 88% of homes in which physical child abuse was being investigated.

Link Between Domestic Violence and Animal Cruelty California Attorney

The Link Between Cruelty to Animals and Violence Towards Humans

Over the past several decades, researchers and professionals in a variety of human services and animal welfare disciplines have established significant correlations between animal abuse, child abuse and neglect, domestic violence, elder abuse and other forms of violence.

A 1997 study by the Massachusetts Society for the Prevention of Cruelty to Animals and Northeastern University found that animal abusers are in fact five times as likely to also harm other humans.

Mistreating animals is no longer seen as an isolated incident that can be ignored: it is often an indicator or predictor crime and a “red flag” warning sign that other family members in the household may not be safe.

52% of domestic violence victims in shelters leave their pets with their batterers (National Coalition Against Domestic Violence) and nearly 50% of domestic violence victims have delayed leaving their abuser out of fear of harm to their animals (Pets as Pawns, Carlisle-Frank, Frank and Nielsen, (2004).

If a child is cruel to animals, research shows it may be a sign that serious abuse or neglect has been inflicted on the child. When children are exposed to family violence and animal abuse in the home, they may be 8 times more likely to become a violent offender themselves.

This finding is in line with other research showing that domestic violence toward pets both correlates with domestic violence toward humans, and is also a tool of domestic abuse — violent members of the household will threaten to hurt or actually hurt a companion animal as a method of control and a form of emotional violence.

How Can You Protect Your Pets From Domestic Violence and Animal Cruelty?

Resources available to help victims of domestic violence seeking help for themselves and their companion animals can be found at www.awarenesshelpsguide.doomby.com

When survivors of domestic violence seek to escape their abusive homes they are often faced with the challenge of finding shelter for themselves and their children, as well as for their pets.

Unfortunately, many shelters do not have the means to house companion animals and many survivors are left facing the difficult decision to either leave their pets behind or remain in the abusive environment. Sadly, many survivors stay in abusive homes for fear of subjecting their animals to continued abuse, if left behind. Equally disturbing, animals are often left with their abusers to face torture or even death.

Link Between Domestic Violence and Animal Cruelty California Lawyer

The Domestic Violence Prevention Act (DVPA) in California provides protections and remedies for those brave survivors who are able to come forward and seek assistance from the court. In California, the family court can issue a domestic violence restraining order for the protection of a pet who has been threatened, abused, or is at risk of such abuse.

A knowledgeable family law attorney with experience fighting for the rights of animals can help you and your pets get out of an abusive situation, and get an order protecting both of you from your abuser.

If you or someone you love is the victim of domestic violence, it is strongly advised that you contact a domestic violence attorney for help. Call the experienced family law attorneys at Talkov Law at (951) 888-3300 or contact us online for a free consultation about your case.


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