Family Law Attorney in San Francisco, CA
Under California law, marriage is “a personal relation arising out of a civil contract, requiring the consent of the two parties who have the legal capacity to enter into the contract of marriage.” (California Family Code section 300 and following) That means that in California a valid marriage requires (1) two consenting adults, (2) legal capacity, (3) informed consent, and (4) compliance with the legal and formal procedures prescribed by the California Family Code. As long as two single/divorced adults meet these criteria, they can get married. Dealing with the implications and complications of this “personal relationship arising out of a civil contract,” especially when the relationship dissolves, is what Family Law is all about.
People often call Family Law attorneys simply Divorce attorneys. A Family Law or Divorce attorney deals with Pre and Post Nuptial Agreements, Adoptions, Guardianship, Dissolution (Divorce), Domestic Violence and Restraining Orders, Child Custody and Visitation, Child Support, Spousal Support, Division of Assets, and other related issues.
The Who is Who of a Family Law Case
Family Law cases are conducted in Family Law Court and presided by Family Law judges. The law that governs Family Law cases is the California Family Code, supplemented by precedents set by prior decisions of Family Court. Unlike criminal and civil cases that are generally tried before a jury, in Family Law all trials are bench trials where the judge is both the trier of fact and the trier of law. The judge hears testimony, evaluates evidence, determines the facts, applies the law to the facts, and renders a verdict.
A divorce cases is formally called a “dissolution of marriage.” The spouse that files in court the petition for divorce is the Petitioner. The other spouse is expected, but not required, to file in court a response to the request for divorce and is called the Respondent. After the petition is filed and served, the Respondent has 30 days to file a response in court. If the response is not filed, the case may continue as a default case.
In a guardianship case, the petitioner requests the court to be granted legal guardianship of a minor. A legal guardian is an adult who is not the biological parent of the minor but who is granted legal and physical custody of the child until the child reaches majority. Because guardianship cases are common when the biological parents die leaving minor children, guardianship cases are often handled by Probate court, not Family court. When parents die, the court generally awards guardianship to the next of keen. Guardianship may also be necessary when parents are incarcerated or incapacitated by illness, accident, or addiction. The standard for guardianship is the same for child custody, namely, “the best interest of the child.”