Family Law Matters
Adoptions
Domestic Partnerships
Dissolution of Marriage (Divorce)
Elder Abuse
Probate
The act of adopting a child establishes a parent-child relationship between a child and an adult or adults who are not the biological parents. An adoptive parent takes on the same rights and responsibilities as the biological parent. When a child is adopted, the birth parents' rights are terminated and the adoptive parents become the childs legal parents. Adoption is permanent. Adoption generally concerns minor children but persons over age 18 may also be adopted, with their consent. A formal home study may be required. Because adoption affects important parental rights, these cases can be procedurally complicated and competent legal advice and representation is strongly advised.
Types of Independent Adoptions:
1. Adopting a Relative
One form of independent adoption occurs when a family member adopts the child or children of a close relative. An agency may be involved in the preparation and submission to the court of a home study report, if one is required.
2. Adopting a Non-Relative
A birth parent may place a child with a party who is not a relative and who may or may not be known by the birth parent. Most adoptions in Oregon involve placement with non-relatives. An agency will be involved with the preparation and submission to the court of a home study report.
3. Stepparent Adoption
Stepparent adoptions occur when a new spouse has a desire to adopt a spouse's child or children from a prior marriage. A home study is usually waived for stepparent adoptions.
4. Adult Adoption
Adult adoptions are allowed on the basis of the consents of the adoptee and the adoptive parents, without birth parents consent, and do not require a home study.
Oregon requires that adoptive families undergo a criminal history background check. A form is completed and sent to the State Police for a records check. Major felony convictions and crimes against children are among the reasons a home study would not be approved.
One or more interviews with the Social Worker conducting the study will take place. Generally, at least one visit will take place in the home of the prospective adoptive family. These interviews examine the family's decision to adopt and whether the family is adequately prepared for a child to enter their lives.
Frequently Asked Questions
How much will it cost to adopt?
The cost of adoption will vary depending on the type of adoption and the circumstances which may take place. The birth parent is entitled to have his/her attorneys fees paid by the adopting family. In Oregon , adoptive parents may be required to pay for up to three pre-placement and three post-placement adoption-related counseling sessions for the birth parent. The counseling cost would be at the expense of the adopting family. Oregon law requires disclosure of any and all money paid for an adoption, including money paid to a birth parent in connection with an adoption.
How long is the adoptions process?
Generally speaking, and without unforeseen circumstances or complications, the final judgment and decree of adoption is usually obtained within four or five months after the petition is filed. The petition for adoption is filed after the birth and placement of the child as soon as the necessary documentation is completed.
Who is required to give consent for adoption?
An adoption usually requires the consent of both birth parents. A child who is fourteen years of age or older also must consent to his or her own adoption. It is always preferable to have the birth father's cooperation and consent, but this is not always possible. A birth father's consent may not be necessary depending on the circumstances. Unless the birth father meets the statutory requirements, an adoption can occur without his involvement and sometimes without his knowledge. Consent of either or both birth parents may be deemed unnecessary by the court upon a showing of willful neglect or abandonment. If a parent has deserted or neglected a child for one year before the filing of the petition, the court can allow the adoption despite that parent's objection. If either parent is mentally ill or mentally deficient, that person's consent may not be required. The same is true if the parent is in a state or federal prison with a sentence of not less than three years.
Can non-residents adopt in Oregon ?
Oregon requires that the child, the birth parent or the adoptive parents reside in Oregon for six months prior to the date the petition for adoption is filed. If the birth mother is an Oregon resident, the adoptive parents can still finalize their adoption in Oregon so long as they comply with the Interstate Compact on the Placement of Children (ICPC) and obtain a home study.
Some of the advantages of adopting in Oregon are:
• There are no waiting periods in Oregon, so the birth mother can sign the consent any time after birth.
• Consents may become irrevocable.
• The adoptive parents are not required to appear in court in order to obtain the final judgment.
• Oregon law does not always require a birth father's consent to adoption. Birth fathers are not entitled to receive notice of adoption unless they have met certain statutory requirements, i.e., providing support or residing with the child during certain time periods.
What is the Interstate Compact on Placement of Children?
The Interstate Compact for the Placement of Children (ICPC) is an agreement among all fifty states that coordinates the transfer of children across state lines for the purposes of adoption. In general terms, the compact requires that the state where the child and birth mother are living and the state where the adoptive parents live need to both agree that the child can go to live with the adoptive parents. Each state has different requirements that must be met. The sending state may also require a genetic history of the birth parents and the hospital medical records of the minor. Once the ICPC coordinator in the sending state has all the required documentation, he/she will give his/her approval to leave the birth state. There is an ICPC coordinator in the receiving state as well. The ICPC coordinator in the receiving state (the state where the child will be living with the adoptive family) will typically require a home study of the adoptive family to make certain that it can provide a good, stable home for the child and to make certain that the child will be adequately cared for in the adoptive home. Once the receiving state has given its approval the adoptive family may go home with their baby.
If you live with your partner without being married, you must take certain legal steps if you want to make sure that you and your partner have rights and obligations similar to those that married couples have. A partnership contract can be used to establish the rights and duties of each person in the relationship. A will can be used to provide for the distribution of property at death so that property does not automatically pass to legal family members. Partners may purchase homes with a right of survivorship. If you are a state, municipal or other local public employee, your employer may not discriminate against you because of sexual orientation or because you are not married to your same-sex partner. The City of Ashland has a Fair Housing ordinance that prohibits discrimination based on sexual orientation in housing.
In 2007, the Oregon legislature adopted the Oregon Family Fairness Act, which created Domestic Partnerships for same-sex couples and their families, and the Oregon Equality Act, which prohibits discrimination against gay, lesbian, bisexual and transgender individuals at work, in housing and public accommodation. The Fairness Act has been challenged in court, and further court decisions will be required to determine the meaning of each of these Acts.
Dissolution of Marriage (Divorce)
Frequently Asked Questions:
What is a prenuptial agreement?
Before marriage, people may sign an agreement that determines their rights and duties regarding their property and support obligations. The agreement becomes effective when the marriage takes place. It is enforceable if it does not violate public policy or the law. Both parties to a prenuptial agreement must fully understand the effect of the agreement, including the legal rights they may be giving up.
What are the grounds for divorce?
Oregon has adopted the concept of no-fault divorce, making it generally unnecessary to prove cruelty, adultery, etc. , in order to obtain a divorce. An allegation that you and your spouse have developed irreconcilable differences will suffice .
What is a legal separation?
Although in some instances a legal separation is possible, it is not generally used. If you are not ready for a divorce but want to talk things over with someone, consider counseling services rather than legal services. If you are physically separating from your spouse but not filing for divorce, there is no legal paperwork you can obtain to verify that status. You might want a legal separation if your religious beliefs prohibit divorce. A legal separation costs about the same as a divorce and involves the same issues. You are still married after a legal separation. You cannot remarry without getting a divorce.
Who will be awarded custody?
Oregon law directs the Court to consider the following factors when deciding which parent shall be given custody of minor children: (a) the emotional ties between the child and other family members, (b) the interest of the parent in the child and the parent's attitude toward the child, (c) the desirability of continuing an existing relationship, (d) the abuse of one parent by the other, and (e) the willingness of a parent to encourage the child's relationship with the other parent. In practical terms, this means the parent who has accepted the primary responsibility for bringing up the child in the past will probably be awarded the care and custody of the child in the future. The primary caretaker is usually defined as the one who attends to the child's basic needs on a daily basis and this is often the parent with whom the child is living. The noncustodial parent will be allowed reasonable rights of parenting time based on the child's needs. Joint custody will only be granted if both parties agree. In general, joint custody will work only if the parents communicate and cooperate with each other. Courts are reluctant to separate siblings. The court may consider a child's preference to live with a parent but does not have to follow the child's wishes. Disagreement over custody and parenting time is guaranteed to put you right in the middle of a contested and expensive divorce.
How will child support and spousal support (alimony) be determined?
There are support guidelines which the Courts use to determine the amount of child support. The guidelines are used to set support in your case, unless there are exceptional circumstances present. The parent having the greater earning capacity will, generally, be required to bear the greater portion of the financial burden for the support of the children. If spousal support is appropriate, a judge must decide how much it should be. The court looks as factors such as the length of the marriage, the ages of the parties, their health, their work experience, earning ability, and future earning ability, the standard of living the couple had during their marriage, the property division, taxes, responsibility for debts, cost of health care, and the custody of minor children. Spousal support is taxable income to the party receiving it and deductible by the party paying it. The law relating to support rights and obligations is very complex and has a substantial impact on the lives and resources of the parties involved. Legal representation to protect your rights may be a good investment.
How long does it take to get a divorce?
The law usually requires a waiting period of 90 days before a divorce becomes final. This waiting period can be waived if both parties agree. How long it will take also depends on the complexity of your case. If you are filing for temporary orders, such as custody and child support, or if you and your spouse dispute the issues in the divorce, you may need to have court hearings. Court time lines can affect how long it takes to get the final divorce decree. My experience indicates a normal interval of about 12 to 18 months for contested divorces. If you file a petition for divorce, you must have the petition and any other required documents served on (officially delivered to) your spouse. Either you or your spouse must have lived in Oregon for six months before filing for divorce. In addition, the divorce must be filed in the county where one of you lives.
How much does a divorce cost?
Court filing fees in Jackson County (2008), are $326 for the petitioner and $238 for the respondent. The more complex the divorce is, the more it will cost. The more issues you and your spouse disagree about, the more work your lawyer will have to do. Divorces are generally handled on hourly fee basis (currently $200 per hour) and require a retainer of $2,000 - $5,000. The retainer fee, or advance deposit, will be applied against expenses and fees that are incurred. Most lawyers who charge by the hour have a minimum billing time of 1/10 of an hour. You will be charged for all the time the lawyer actually spends working on your case, including research, writing, and phone calls made to discuss you legal matter.
In Oregon , a court's protection order based on the Elderly Persons and Persons with Disabilities Abuse Protection Act provides protection against physical, financial, and emotional abuse for persons aged 65 and older and persons who are disabled. This law defines abuse as conduct, within the last six months, that caused physical injury either on purpose or caused physical injury by neglect, abandonment, or desertion of the victim when the abuser was supposed to be taking care of the victim in some way. Abuse also means the use of intimidating or harassing language threatening serious physical or emotional harm. It also includes sexual misconduct, inappropriate sexual language, and the wrongful taking or a credible threat to take wrongfully a vulnerable person's money or property. The protection order usually lasts for one year, and it can be renewed for a second year if there is a good reason to extend it.
Obtaining a protection order is quick and usually very simple. If the victim has suffered serious harm, a civil suit for damages or a permanent court order keeping the abuser away may be appropriate. I have represented the family of a woman who was abused in a nursing home. Estate of Margaret Slowey , Jackson County Case No. 96-485-P3. I stated at the time: The principle in this case involves more than just money. The principle involves holding those accountable who are entrusted with the well-being of those who are the weakest and most vulnerable among us, and protecting them from abuse. (quoted in Medford Mail Tribune )
One type of civil remedy is called an action for abuse of elderly or incapacitated person. You can file this kind of case if you have been injured or suffered damages as a result of financial abuse. This kind of case can be filed by the heirs or the personal representative of a person whose death was the result of abuse. You can sue not only the person who directly caused the harm but also someone who permitted that person to harm you. Having representation by an attorney is essential in this kind of case. If you win your case, the court will order the abuser to pay your attorneys fees and your costs in the case, as well as damages.
Probate is a process in which the court decides who receives assets that were owned by a person who has died. Assets are anything a person owns with value, such as real and personal property, bank accounts, investments, etc. Probate is not always necessary. If the deceased person owned bank accounts or real property jointly with another person, the surviving co-owner will then own this property automatically. If a person dies leaving very few assets, such as personal belongings or household goods, these items can be distributed among the person's heirs without the supervision of the court. Sometimes probate is needed to clear title to land or stocks that were held in the name of the deceased person only, and transfer title to these assets in the names of heirs. Probate also resolves any disputes about the validity of a will settle disputes between people who claim they are entitled to the deceased persons assets.
A personal representative is someone who handles the deceased person's affairs. Oregon law requires that anyone in possession of the deceased person's will must deliver it within thirty days to the personal representative or the court. The personal representative gathers together information about the deceased person's assets and gives the inventory to the court. A notice to creditors is published in a local newspaper. This public notice gives creditors four months to bring any claim against the estate for debts the deceased person owes. After approval by the court, the deceased person's assets are distributed to the people and entities (such as charities) named in the will or to the heirs of the deceased person. The process will take a minimum of six to nine months.
Oregon has a small estates proceeding. If the following requirements are met, the cost and time for distributing the estate is greatly reduced: 1) total assets are $140,000 or less; 2) real property is worth less than $90,000; and 3) personal property is less than $50,000. A small estate proceeding will usually take four to six months and can be handled informally.
A personal representative will earn a fixed percentage of the value of the total estate. Reasonable attorney fees will be approved by the court. Other costs include court filing fees, legal notices published in the local newspaper and any other necessary expenses, such as repairs to real property or selling expenses.
What is a Power of Attorney?
A power of attorney gives another person the legal authority to manage some or all of your personal affairs. A power of attorney is created when a principal gives someone else (an agent or attorney-in-fact) written permission to act on his or her behalf. A power of attorney does not take away the principal's right to make his or her own decisions about financial matters. The principal can end the power of attorney at any time by simply telling the attorney-in-fact in writing. A power of attorney ends automatically when the principal dies. The power of attorney must be in writing and signed. Usually, it is notarized. In Oregon , a power of attorney is durable. This means it continues to be valid even if the principal becomes incapacitated. You should not give anyone such powers unless you fully understand the consequences and completely trust the attorney-in-fact.
What is a Conservatorship?
A conservatorship is a legal proceeding that gives a person (the conservator) power over the property and finances of a financially incapable person (the protected person). A conservatorship may be established for a person who cannot manage his or her financial resources effectively. Letters of Conservatorship is the court paper which gives the conservatorship authority to make financial decisions on the protected person's behalf. Each year, the conservator must tell the court how he or she managed the money and property of the protected person. The conservator does not have the power to make personal decisions for the protected person.
What is a Guardianship?
Guardianship can occur because a person becomes incapacitated, or unable to make decisions for his or her well-being and safety. A guardian is appointed by the court when a person (the protected person) becomes so incapacitated that she or he is in danger of serious physical injury or illness without a guardian to make decisions. A person interested in the welfare of another person may petition the court to set up a guardianship. The court appoints a visitor to interview the person seeking appointment, the proposed protected person and others involved. The visitor submits a report to the court. Letters of Guardianship is the court paper which gives the guardian authority to act on the protected person's behalf. If the court directs, the guardian can control where the protected person lives and can consent to necessary medical care and treatment. A guardianship can also be established over a minor child to give an adult other than the child's parent authority to make decisions for the child.
What is an Advance Directive?
Oregon law allows you to name a person (called a health care representative) to speak for you about medical treatment if you cannot speak for yourself. This instruction is called an advance directive (sometimes called a Living Will). The advance directive document allows you to give your physician and your health care representative directions about treatment, particularly about procedures that will artificially prolong your life. There have been well publicized cases involving legal disputes between family members (Terry Schiavo, Karen Ann Quinlan) where a person who was incapacitated or in a coma did not leave such written directions about their medical treatment and the use of life sustaining measures. You must sign the advance directive in front of two witnesses, one of whom must be unrelated to you. The health care representative also must sign the form to show that she or he agrees to assume the duty.
