California Family Law Blog

San Jose Family Law Attorney Discusses California Surrogacy and Adoption Laws

Lately, Sagaria Law has received several calls about surrogacy and adoption. Surrogacy comes in two main forms: gestational or traditional. Gestational surrogacy is where the embryo and resulting child is genetically related to both parents. Traditional surrogacy involves the use of donor eggs and sperm, or artificial insemination.

Surrogacy law in California is governed by 2 Supreme Court cases: Johnson v. Calvert and Marriage of Buzzanca. Johnson is a case of a gestational surrogate (genetic material from both parents, surrogate to carry the child), and the Supreme Court ruled that when two women have valid claims to motherhood, the tiebreaker is the intent at the time of conception. Therefore, the natural mother of a child is the person who intended to bring about the birth of a child and raise it as her own. In Marriage of Buzzanca, the Court dealt with a case of two infertile parties who used donor sperm and donor eggs to implant in a paid surrogate. In that case, the court held that where a married couple, unable to procreate on their own, intends to bring about the birth of a child through the use of medical technology, those individuals will be held to be the legal parents, regardless of genetics. This holding should apply to surrogacy cases where the surrogate has been artificially inseminated with the intended father’s sperm, but since there is no clear ruling on this particular issue, it is possible the court would decide differently under that set of circumstances.

In California, the intended parents can only be listed on the birth certificate if there is a court judgment naming them as the parents. If no such judgment is to be had before birth, the parents will need to adopt the child(ren) to become the legal parents. It is advisable to seek a legal judgment in advance of the birth to ensure there is no delay in obtaining the status of legal parents.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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Posted In: Adoption , Family Law , Family Law Issues , Guardianship , Santa Clara County Family Law Issues

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San Jose Family Lawyer Discusses Adoption

November 15, 2008 is National Adoption Day!

National Adoption Day is a collective national effort to promote awareness of the 129,000 children in foster care waiting to find permanent, loving families, as well as those families that have been happily created through the adoption process. National Adoption Day helps make the dreams of thousands of children come true by working with courts, judges, attorneys, adoption professionals, child welfare agencies and advocates to finalize adoptions and find permanent, loving homes for children in foster care. National Adoption Day is normally celebrated the Saturday before Thanksgiving, but was moved in 2008 for one year only.

Adoption is an important and often overlooked component of the family law system. Many children are either in homes with step-parents who wish to adopt them and don’t know how, or in foster homes with loving foster parents who wish to make their bond permanent. Adoption provides a means for abandoned, neglected and abused children to become a part of loving, caring families. Whether those bonds are formed through foster care, international adoption, private or open adoption, an attorney is an essential part of the process, which can be complicated and confusing, but ultimately, successful.

There are many steps to obtaining an adoption, including a social services review and home visit, termination of natural (birth) parent(s)’s rights, medical history and filing those all important court documents. An attorney can help you every step of the way.

What are the grounds for terminating a parent’s parental rights? You may be considering adopting a child, whether it’s a step parent adoption or an adoption through foster care and the juvenile system. California law provides specific circumstances under which a natural parent’s rights may be terminated. A proceeding may be brought to have a child under the age of 18 declared free from the custody and control of either or both parents where: (1) the child has been left without provision for the child’s identification, support, or communication from the abandoning parent; and (2) with the intent to abandon the child. Token efforts to support or communicate with a child or children is not enough to prevent a court from finding abandonment. Furthermore, the California courts have found that the code should be construed liberally to best protect the health safety and welfare of a child. Adoption provides safety and security to a child who is desperately in need of those very things.

Other grounds for termination of parental rights include conviction of a felony where the circumstances or nature of that felony prove the unfitness of a parent There is no requirement that the children be present when the felony occurs or that they be in current danger, but rather the purpose is to prevent future harm. The court considers the circumstances of the felony to determine whether it is likely that future harm may result to the child if the parental rights are not terminated.

If you are interested in learning more about adoption, whether it’s a child from the juvenile dependency system, a minor child who is a relative, a step-child, or any other child who has been abandoned by a parent, the attorneys in our office can help you. Our attorneys have experience handling multiple types of adoptions, and believe in making the process as painless as possible. Adoption is intended to be a happy event, and we strive to keep it that way. In addition, we specialize in divorce, child support, alimony, child custody and visitation, etc. Sagaria Law offers a free consultation, either in person or over the phone, at any of our six Northern California locations: Sacramento, Fremont, San Jose, Monterey, Salinas, and Redwood City. Call today to schedule your free consultation 1-800-941-6730 or visit www.sagarialaw.com!

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Posted In: Adoption , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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San Jose Family Law Attorney Discusses Adoption for Same Sex Couples:

In March 2007, the Urban Institute and the Williams Institute at the University Of California School Of Law reported that over 65,000 adopted children are being raised by same-sex parents in the United States. The same report estimated more than 14,100 foster children were living with one or more gay or lesbian foster parents. Though denied the right to marry in every state except for Massachusetts and California, more and more same-sex couples are turning to adoption and foster care to form families.

Enduring the time-consuming process of adoption or foster care is difficult enough for heterosexual couples, but gays and lesbians face additional complications.

Eleven states and Washington D.C. either implicitly or explicitly state that sexual orientation cannot legally prevent gays and lesbians from adopting. Three states have laws denying gays and lesbians the right to adopt or to even take in foster children. Though Mississippi allows single gays and lesbians to adopt, it prohibits same-sex couples from adopting. Utah excludes same-sex couples indirectly through a statute barring all unmarried couples from adopting or taking in foster children. Florida is currently the only state that specifically bans “homosexual” individuals from adopting, although the state does allow them to be foster parents.

For prospective gay and lesbian parents, success in adopting from the public child welfare system depends on the state adoption law and the attitude of the agency. For example, in New York and California, gay and lesbian prospective adoptive parents are protected against discrimination. It is illegal for public agencies in those states to reject adoptive parents on the basis of sexual orientation. However, that is not a guarantee that prejudices don't exist. Social workers who are uncomfortable with homosexuality may find the prospective adoptive parents unsuitable for other reasons. Private agencies establish their own criteria for the prospective adoptive parents. Age, religion, fertility status, marital status and sexual orientation all may be agency considerations.

Each state decides independently who can adopt. Since the final decision is made by judges at the county level, the availability of adoption as an option to openly gay and lesbian couples is influenced by the political and social community in which the family lives. The court's decision hinges on the "best interest" of the child, a concept interpreted differently by different judges.

If you are a same-sex couple and have questions about adoption, call our experienced team of family law attorneys. We handle all types of family law cases. We have five Bay Area locations, including San Mateo, Redwood City, San Jose, Monterey, and Fremont. We offer a free consultation, either in person or over the phone. Call today to schedule your free consultation with an experienced San Jose Family Law Attorney.

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In a region as diverse as the San Francisco Bay Area, it does not seem possible that racial tensions would prevent prospective parents from adopting a child of a different ethnic background. Nevertheless, in recent months, publications from various metropolitan areas throughout the United States are reporting on the trends and pitfalls of transracial adoptions, and our San Jose adoption attorneys believe that it is highly important to take notice of this issue. One should never be dissuaded from bringing a new child into the family, but it is also critical that a person considering adoption enter the situation “with eyes wide open,” according to Billy Hancock, a family recruitment specialist from Seattle. Maddy Day, a family development coordinator from Redmond, WA agrees. She believes that many parents interested in adopting a child walk into the process with “naïve bliss,” and fail to consider obstacles or difficulties that may arise once that child is no longer an infant.
Although adopted children will certainly begin to take notice of physical differences between themselves and their parents as they reach maturity, this stage of development can be dealt with quite smoothly if the adoptive parents have properly prepared themselves to address the inevitable questions. Many Santa Clara County adoption resources are easily accessible –it is only a matter of knowing where to look. In addition to assisting with the legal process, a good adoption attorney can help adoptive parents seek resources such as classes, literature, and parenting associations that focus specifically on issues surrounding transracial adoption.

Continue reading "Creating the New American Family: The Transracial Adoption Option" »

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An Iowa woman whose 5-year-old daughter was kidnapped and killed in 2005 has been ordered to give up her parental rights to her two sons, who have been in foster care since their sister’s murder. Miller has been granted one more visit with her sons, ages 2 and 3, who will become eligible for adoption.

The boys’ sister, Evelyn, then 5, disappeared from their apartment in July 2005. Miller says that she came home after her overnight job to discover the front door partially open and her boyfriend and their two sons asleep. A massive search ensued, and Evelyn’s body was eventually found in the Cedar River. Her death was declared a homicide. No charges have been filed in connection to her murder and the investigation continues to this day.

Casey Frederiksen, the father of the boys, voluntarily signed away his parental rights, but Miller, who has been hospitalized for mental health problems, opposed the juvenile judge’s decision that she give up her children. According to the judge, the two boys had spent more than six months removed from their parents’ physical custody and that neither parent had kept up a significant amount of meaningful contact or tried to resume caring for them.

Frederiksen is serving time in prison for a child pornography conviction. His friend Danny Slick, who was one of the last people to see Evelyn alive the night she disappeared, has pleaded guilty to making false statements to the police investigating her death. His sentencing hearing is scheduled for February 21, 2007.

Continue reading "Woman Whose Daughter Was Murdered Loses Legal Custody Of Her Two Sons" »

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Posted In: Adoption , Child Custody & Visitation , Juvenile Dependency

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Authorities in Mexico City have arrested an American couple for trying to illegally adopt a baby in Mexico. The couple, who both have California driver’s licenses, face charges of trying to buy or rob a child. They are being held at a local jail. While the husband is claiming total responsibility for what occurred, the wife told local journalists that she has wanted a baby for a long time but that the adoption process she became involved in didn’t meet legal standards.

For American citizens who wish to adopt a child from another country, there are proper legal channels that must be taken in order to ensure that the international adoption is legal and valid. It is important for prospective parents to know about the adoptions laws in the country where the child is from, as well as the laws that govern the immigration process that parents will have to follow in order to bring their child to live in the United States.

The U.S. State Department offers information regarding adopting a child from Mexico, including the following:

The State System for the Full Development of the Family (Desarrollo Integral de la Familia, or DIF) is a government institution in each Mexican state that handles family matters. The DIF and the Mexican Foreign Relations are assigned responsibility to study each child’s eligibility for intercountry adoption and arrange adoptions. The DIF determines whether a family would be suitable for a particular child by ensuring that a home study has been done. The DIF makes every effort to place children with relatives or Mexican citizens living in Mexico before placing children for inter-country adoption.

Continue reading "California Couple Arrested After Trying To Illegally Adopted A Baby In Mexico" »

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The number of foreign children adopted by american citizens dropped significantly last year. Countries that were affected by this decline included Russia, Ukraine, China, and South Korea. There were, however, an increase in foreign adoptions in Liberia, Vietnam, Ethiopia, and Haiti.

According to the U.S. State Department, international adoption figures dipped from 22,728 in 2005 to 20,679. For the 15 years prior to last year, these numbers had been dramatically increasing.

In China, the number one source of foreign adoptions for Americans, figures there fell from 7906 to 6493 last year. In Russia, previously the number two place for adoptions, the rate of foreign adoptions from there dropped to 3,706. Romania has banned adoptions by foreign parents, unless they are related to the child. Kazakhstan and Ukraine are now making it mandatory for foreign parents to turn in regular reports about their adopted children.

Guatemala, now the number two spot for adoptions by U.S. parents, saw their number of foreign adoptions grow to 4135. This figure, however, may change this year. The US is scheduled to ratify the Hague Convention on Intercountry Adoptions. The pact has tough standards that Guatemala doesn’t meet and adoptions from there could be suspended.

Continue reading "In The United States, The Number of International Adoptions Go Down In 2006" »

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China, the number one source of international adoptions by Americans says it will tighten its rules on foreign adoptions. People who are single, older than 50, obese, or fail to meet certain physical, psychological, or emotional benchmarks will not be allowed to adopt Chinese babies.

The new rules are a result of the increase in adoptions by foreign-born parents—the number of applicants are far larger than the amount of available babies. In the fiscal year of 2006, the U.S. State Department granted 6,493 visas to Chinese orphans adopted by American parents. The new regulations, to be officially announced by the Chinese Center of Adoption Affairs, will take effect on May 1, 2007.

According to U.S. adoption agencies, the guidelines are intended to have Chinese babies adopted by families that they believe possess the qualities and values essential to making sure that the babies are raised in stable, healthy environments. Adoption agencies are having to turn down applications who don’t fit the criteria.

Criteria for applicants include:

· A body-mass index of less than 40.
· No criminal record.
· A high school diploma.
· Being free of certain health problems.
· Being married for at least two years.
· Having no more than two divorces between a couple; a couple with a divorce in their history must be married for at least five years.
· A combined net worth of at least $80,000.

Since 1991, American have adopted over 55,000 Chinese babies.

Continue reading "China To Impose Tighter Restrictions For Adoptions By Americans And Other Foreigners" »

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More than 75 babies and teenagers were officially adopted by families in Alameda County Superior Court on Saturday, November 18. Some of these children had already been living with these families as foster children, while others were arriving at new homes for the very first time.
A spokeswoman for the Alameda County Social Services says that there are almost 3000 children in the county who belong to the foster care system.

National Adoption Day, celebrated every year on the Saturday before Thanksgiving, is a day when thousands of children across the United States are formally adopted by families. Like Adoption Awareness Month, National Adoption Day takes place every year to raise awareness that there are more than 100,000 children in the U.S. who are waiting to find permanent homes.

National Adoption Day.org offers the following statistics about adoption:

· There are an estimated 523,000 children in foster care in the United States, and more than 119,000 of them are waiting to be adopted.

Continue reading "On National Adoption Day, More Than 75 Children Are Adopted In Alameda County Superior Court " »

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Across the United States, adoptive parents, adoptees, and adoptive families are celebrating National Adoption Awareness Month.

The annual commemoration, established in 1990, is designed to raise adoption awareness and bring attention to the tens of thousands of children in foster care that are still waiting to be adopted.

This year, national adoption day will be on November 18, when courts across the country will finalize thousands of adoptions of children from foster care.

Goals of National Adoption Day 2006:
· Finalize adoptions from foster care in all 50 states.
· Celebrate and honor all families that adopt.
· Raise awareness about the 114,000 children in foster care waiting for adoption.
· Encourage others to adopt children from foster care.
· Build collaboration among local adoption agencies, courts and advocacy organizations.
· Through research, learn more about families wanting to adopt and the children waiting to be adopted,
· Find more permanent, loving homes for children in foster care.

Continue reading "Adoptees, Foster Children, and Adoptive Parents In The United States Are Honored During National Adoption Awareness Month " »

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In the United States, more than 10 years after signing the Hague Convention on Intercountry Adoption, the U.S. is finally close to implementing the global treaty. The treaty, which hopefully will be ratified next year, will govern all adoptions that take place in the countries that have ratified it. While it will be against the law for Americans to adopt a child from countries that have ratified the treated but are not obeying its rules, Americans can still adopt children from countries that have not signed the treaty.

The Hague Convention is seen as a major step for making international adoptions safer for children, as well for biological and adoptive parents.

Countries will have to follow specific procedures and guidelines, including:

· Adoption agencies being required to work harder to collect health information about the children, as well as information about a child’s biological parents.
· Establishing a central authority to monitor all of a country’s adoptions.
· Ensuring that any person or agency that arranges an adoption is accredited. The Council on Accreditation and the Colorado Department of Human Services will take care of the accreditation process in the U.S.
· Requiring agencies to disclose the full cost of adoption at the start of the process.

Continue reading "For International Adoptions, U.S. To Finally Implement The Hague Convention On Intercountry Adoption" »

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A Malawi Court has scheduled a November 15 hearing for the resumption of pop superstar Madonna’s international adoption case. The Human Rights Consultative Committee is asking the court to ensure that no Malawian laws have been violated during the adoption process. They are also asking to be involved in the process to evaluate the singer’s capacity to bring up the baby according to his best interests. Attorneys for Madonna say no Malawian laws have been broken.

International adoption is essentially a private legal matter between a private individual (or couple) who wishes to adopt and a foreign court, which operates under that country’s laws and regulations. Should any issues or complications arise during the adoption process, U.S. authorities are unable to intervene on behalf of prospective parents with the courts in the country where the adoption is taking place.

What the U.S. State Department Can Do:
· Provide information about international adoption in countries around the world.
· Provide general information about U.S. visa requirements for international adoption.
· Make inquiries of the U.S. consular section abroad regarding the status of a specific adoption case and clarify documentation or other requirements.
· Ensure that U.S. citizens are not discriminated against by foreign authorities or courts in accordance with local law on adoptions.

Continue reading "Madonna International Adoption Case To Resume In November" »

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The Bay Area Heart Gallery Exhibit is currently showcasing photographs of 50 Bay Area foster kids who are waiting to be adopted. The traveling exhibit can be seen at the Berkeley Public Library, Central Branch and the Downtown Berkeley YMCA from October 2-31. The exhibit, which began touring on April 26, will eventually have been experienced by people in Alameda, Contra Costa, Marin, Monterey, San Francisco, San Mateo, Santa Clara and Sonoma Counties.

According to statistics collected through 2001 and provided by the California Department of Social Services Reporting System:

· Approximately 102,000 children are in foster care in California. Almost one third of foster children are under 6 years old. Over half the children in foster care are under 11 years old. Many of these children are waiting to be adopted.

· Almost half of the children in foster care have siblings who are also in foster care.

· 31% of children in foster care are White, while a majority (69%) are of minority backgrounds. Of these, 32% of all children are Black, 33% are Hispanic, 1% are American Indian, and 3% are Asian/Pacific Islander.

· In the decade between 1983 and 1993, the number of children in foster care increased 154% in California.

Continue reading "In Alameda County, Bay Area Heart Gallery Photo Exhibit Features Foster Kids And Encourages Californians To Adopt " »

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The court of appeals held that Prob. Code 1516.5 , which authorizes a trial court to declare a child free from parental custody and control if the child would benefit from adoption by a legal guardian who has had custody for at least two years, is constitutional. It futher held that Probate Code 1516. 5 is retroactive, and applies after two year of guardianship, regardless of whether part of the two year period occurred before the statue became law.

Continue reading "Statute Authorizing Adpotion is Constitutional " »

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