May 2022 - Lonich Patton Ehrlich Policastri

Does Having an Adopted Child Impact Child Custody Cases?

May 24, 2022/in Family Law /by Riley Pennington

Many questions often arise once a divorce is on the table, especially when children are involved. For example, how will the children be shared between their parents? Who will have physical custody, and who will have legal custody? How will child support be handled?

Determining custody of children can be a complicated matter in any divorce. However, when a couple shares an adopted child, it can raise additional questions on how it might impact the divorce process and arrangements once the divorce is finalized.

Under California law, adoptive parents are considered the legal parents of any adopted children once the adoption is final. Thus, adoptive parents legally have the same responsibility to ensure that children receive care and support as any biological child would following a divorce.

Divorce and Child Custody For Adopted Children

When a divorce occurs with children involved, it is the court’s responsibility to determine each parent’s physical and legal custody responsibilities.

Legal custody grants parents the authority to make important decisions regarding medical procedures, education, religion, and more. Typically this is a shared responsibility, and both parents remain involved in making significant decisions regarding children after the divorce.

Physical custody determines where the children will reside, while visitation rights determine how often they’ll see their other parent outside of these times.

Adoptive Parental Rights in California

There are two common situations regarding parents with adopted children. First, there are instances where parents have adopted a child with no relation to either of them. There are also frequently situations where one parent adopts the biological child of their partner after marriage.

If one parent is the biological parent and the other parent has adopted the child after marriage, the court will likely award custodial rights to the birth parent following a divorce. However, there can be contributing factors, such as abuse situations, where the ruling might not be as straightforward. Adoptive parents can also apply for shared custody of their partner’s biological child after divorce, as they are considered to have all of the rights of a legal parent after an adoption is complete. The potential significant emotional connection between the adopted parent and child further complicates the physical custody issue.

In situations where parents have adopted a child that is not related to either of them biologically, both parents are considered the legal parents of the child after the adoption is finalized and share responsibility for the child’s care in the event of a divorce.

In either scenario, adoptive parents can be required to provide financial support for adoptive children following a divorce. The court will determine what that responsibility should be during divorce proceedings.

As you can imagine, there is no one-size-fits-all answer to the question of how best to handle custody of children during a divorce, as the outcome of any custody case will be based on the unique facts and circumstances of each family. In California, courts are required to consider the child’s best interests when making custody decisions, whether the child is adopted or biological.

Qualified California Family Lawyer

If you are considering divorce and have an adopted child, it is essential to speak with a family law attorney who can provide supportive guidance during what can often be a difficult and emotional time for all involved, especially adopted children.

At Lonich Patton Ehrlich Policastri, we have a team of experienced family law and estate planning attorneys ready to help you navigate your divorce and achieve the best possible outcome for your family’s unique situation. Call 408-553-0801 today to schedule a consultation.

How To Choose A Law Firm For Estate Planning

May 19, 2022/in Estate Planning /by Michael Lonich

No one wants to think about estate planning, but it’s a critical part of life. As you grow older, it becomes increasingly important to have a solid plan. A well-drafted plan can ensure your assets are distributed according to your wishes after you pass and help minimize the tax burden and emotional stress on your loved ones.

What to look for in a law firm

If you’re looking for a law firm to help you with estate planning, it’s crucial to select one with experience and expertise. When looking for a reputable firm, your local bar association or the Better Business Bureau is a great place to start. They will be able to tell you if there have been any complaints against the law firm.

Also make sure the firm you choose has experience in estate planning. Not all lawyers specialize in this area of law. Therefore, it is important to find a firm that is well-versed in all aspects of estate planning, including estate and trust administration, litigation, and probate, to ensure they can properly advise you.

After selecting a law firm, set up a consultation to ensure that you are comfortable with your attorney and feel confident that they can properly provide guidance and represent your interests.

What to expect during the estate planning process

Estate planning can be complex, but with the help of a knowledgeable lawyer, it doesn’t have to be daunting. The main components can include preparing a Last Will and Testament that outlines who will serve as the executor of your estate and designating your beneficiaries and what they will inherit. This document also outlines how your property and assets will be handled.

You may also want to set up a Durable Power of Attorney or POA, which allows designated agents – usually family members or close friends – to act on behalf of an incapacitated person if necessary. You can also designate a Healthcare Power of Attorney to authorize an agent to specifically make medical decisions if you cannot communicate your wishes in an emergency.

You may also want to consider setting up a Living Trust, which allows you to create a trust and transfer assets for your beneficiaries while you’re still alive, or a Living Will, which outlines your directives for how medical treatments should be handled if you are unable to advocate for yourself.

The importance of estate planning

Every person should consider having an estate plan in place in case something happens and they cannot make decisions for themselves. If you don’t have a plan in place, your loved ones may have to go to court to sort out your affairs. This can be a costly and time-consuming process, so it’s best to take care of this important task ahead of time.

LPEP can help

There are many firms out there, and it’s essential to choose the right firm for you. Our team at Lonich Patton Ehrlich Policastri has decades of combined experience navigating complex family law and estate planning cases in the Bay Area. We are ready to help you navigate your unique situation. Call us at 408-553-0801 to schedule a free consultation today.

What You Need to Know About California’s Durable Power of Attorney Law

May 10, 2022/in Estate Planning /by Michael Lonich

A durable power of attorney is a legal document that allows an individual to appoint someone else to make decisions on their behalf if they can no longer do so themselves.

However, California has specific criteria for a durable power of attorney to be legally binding. You will want to make sure you understand those requirements so that you or your loved ones won’t find yourselves facing a legal battle.

What is a Power of Attorney?

When creating an estate plan, you will want to appoint someone as your power of attorney. That person will be able to make decisions on your behalf if you are incapacitated and unable to do so yourself.

There are several types of powers you can appoint to someone, such as:

General power: allows the designated person to act on your behalf in any matters permitted by California law.
Limited power: the appointee can only act on your behalf in specific situations spelled out by you.
Durable power of attorney (DPOA): controls certain areas designated by the terms of the agreement, even if you become mentally incapacitated.
Healthcare power of attorney (HCPA) or healthcare proxy: makes decisions regarding your medical care if you cannot do so.
Financial power of attorney: you assign someone to oversee your assets and make payments on your behalf.

Does California Have Any Legal Requirements For Durable Power of Attorney?

California requires certain criteria for a durable power of attorney to hold up in a court of law.

First, both the principal person and the appointee must be legal adults. The person appointed as DPOA can not be affected by the principal’s incapacitation, and the POA does not go into effect until the principal becomes incapacitated.

To be legally binding, a DPOA must be signed by two witnesses (the principal can not be one of the witnesses) or be dated and acknowledged by a notary public.

What Are Some Things to Consider When Choosing an Agent to Act as a DPOA?

There are a few things to consider when choosing an agent under California’s durable power of attorney law. First, you’ll want to choose someone you trust implicitly to make decisions on your behalf. This person will have a great deal of power over your finances, so it’s essential that you select someone responsible and level-headed.

Finally, be sure to discuss your wishes with your agent in advance so they are clear on what you expect from them.

Planning for the Future

When it comes to planning for the future, you want to make sure you are getting the best legal advice. Our lawyers at Lonich Patton Ehrlich Policastri have years of experience and will guide you in making tough decisions about your future. We can discuss how much authority you want to give your durable power of attorney and ensure they carry out your wishes.

If you live in San Jose or the greater Bay Area, schedule your free consultation or call us at 408-553-0801.

Are There Any Disadvantages of a Prenuptial Agreement?

May 5, 2022/in Family Law /by David Patton

No one gets married thinking that it will end in divorce, but the unfortunate reality is that it does happen. When it does, couples who have a prenuptial agreement in place are far better off than those who do not. A prenuptial agreement may protect both parties in the event of a divorce and ensure that each person walks away with what they are entitled to.

What is a Prenuptial Agreement, and Why Might You Need One?

As the name implies, a prenuptial agreement is a contract signed by two people planning to marry. While some agreements may discuss rights and responsibilities during the marriage, they usually outline the division of assets if the marriage ends.

Having a prenup is advantageous for several reasons, such as:

Ensuring that any inheritance you receive remains separate from your joint assets.
Keeping certain financial accounts solely in your name, including any pensions or 401(k) accounts.
Establishing clear expectations about future responsibilities as well as financial independence during the marriage.
Providing peace of mind and ensuring your needs are met in the event of a divorce.

Myths About Prenuptial Agreements

There are several common misconceptions about prenuptial agreements. Discussing divorce before entering a marriage can create feelings of mistrust and insecurity within a relationship. If one spouse feels like they are signing away their rights, it can lead to resentment and conflict. Furthermore, one person may feel like their future spouse is more interested in protecting assets than building a relationship. While the process requires couples to have potentially difficult conversations about their finances and expectations for the future, creating a prenuptial agreement can establish a solid foundation for a marriage.

Why Might a Prenuptial Agreement Not be Enforceable?

There are many different reasons why a prenuptial agreement may not be enforceable in California. While a couple can draft their own contract, California’s Uniform Premarital Agreement Act (UPAA) outlines what they need to include in an agreement. Failure to meet those requirements could invalidate the contract.

Furthermore, there are some items that can’t be in the agreement, including:

Anything regarding child custody or support
Illegal activity
Non-financial demands of the spouse
Any language that is considered unjust or exploitive

We Can Help Create Your Prenup

Creating a prenuptial agreement is a legally complex process. Our attorneys at Lonich Patton Ehrlich Policastri have experience crafting agreements that meet California’s legal requirements and will provide peace of mind for you and your future spouse.

If you live in San Jose or the greater Bay Area, call us at 408-553-0801 or fill out our contact form to request a free consultation.

May 2022 LPEP Spotlight: Damaris Alamillo

May 2, 2022/in 2022, Spotlight /by Lonich Patton Ehrlich Policastri