Grandparent Rights – Visitation

What are they?

 

Grandparents who are separated from their grandchild(ren) by a parent or a legal situation may be interested in filing for formal visitation, the legal right for them to visit their grandchild(ren) at certain times.

 

How does it work?

 

For a grandparent to file for visitation of their separated grandchild(ren), the court must be able to:

  1. Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”  This means that there is such a bond between grandparent and grandchild that visitation is in the best interest of the grandchild(ren).

                                                                                               

                                                                                         AND

 

       2. Balance the best interest of the child(ren) in having visitation with a grandparent with the rights of the parents to make decisions about their child.

 

 

In fact, grandparents can only file for visitation rights in a few instances, such as:

  • The parents are living separately;
  • A parent’s whereabouts are unknown (and have been for at least a month);
  • One of the parents joins the grandparent’s petition for visitation;
  • The child does not live with either of his or her parents; or
  • The grandchild has been adopted by a stepparent.

 

 

However, even if a grandparent successfully files for visitation, once the situation with the parent(s) change so that none of the above applies, the parent can terminate the grandparent’s visitation rights at any time.

 

 

 

Are you interested in filing for visitation? We can help you find the lawyer you need. Please call 805.569.9400 for more information. 

Living Trust vs. Will

What’s the difference?

 

A Will

A will is a written legal document that dictates how your possessions will be distributed after your death. It is revocable and amenable during your life, and is the document in which you can appoint a guardian for your minor children.

 

A Trust

A living trust is a legal document that partially substitutes for a will. Your assets are put into your trust during your life time, to be given over to the pre-appointed beneficiaries when you die. Usually, you make yourself the trustee, and appoint a successor, so that you can manage your assets until you die. More than this, however, living trusts are for the management of properties, including real estate and/or personal properties. A property can be managed or distributed among inheritors without expensive court-supervision.

 

Why choose one over the other?

Assets and responsibilities tend to push people to select one or the other. Factors such as estate taxes, the existence of minor dependents, and how much privacy is preferred are all important in deciding between a living trust and a will.

 

 

Are you deciding between a trust and a will? Need advice? Call 805.569.9400, and we will do our best to connect you with a lawyer who can help.

Arraignment

What is it?

An arraignment is when the accused is brought before the court to plead guilty, no contest (where the accused pleads neither guilty nor innocent), not guilty, or not guilty by reason of insanity. It is during the arraignment that the issue of bail is settled, and the date for the trial is set. Essentially, it is the precursor to a trial for someone arrested for a crime.

 

 

What is it about?

After someone has been arrested and formally charged, they have an arraignment. The arraignment lets the defendant know what they have been arrested for, so that they can prepare an appropriate defense. It is also to record for the court the plea of the accused, and allows the court to plan accordingly.

 

While it varies from state to state, arraignments are not required for every crime. Some states only require an arraignment for felonies, and not misdemeanors, while some require it for both. In California, the arrested must be arraigned for either. If the person who is being arraigned is still in custody, they must have their arraignment within two court days. If they pay bail and are released, their arraignment will occur at some point within the following three weeks.

 

If you or your attorney fails to appear at your arraignment, the judge can issue a “Bench Warrant,” so the police can arrest you and bring you directly to court.

 

 

Are you facing an arraignment and need a lawyer, or just more information? Give  us a call at 805.569.9400 or reach us online at www.sblaw.org

What is Conservatorship?

In California, conservatorship is a case where a judge appoints a person or organization as financial caretaker of an adult who cannot manage their own finances. There are two main types of Conservatorship:

 

A)     Probate Conservatorship is the most common kind of conservatorship. There are two types of this: General and Limited.

 

a.       General
This tends to be for elderly people, or a person seriously impaired through an accident so as to be unable to take care of their own finances.

 

b.      Limited

This type of Conservatorship is for people with mental and/or learning disabilities that disallow them from tending their own finances.

 

B)      Lanterman-Petris-Short
This kind of Conservatorship is for adults with serious mental diseases/disorders, who often live in restricted living arrangements (such as an asylum). The adult whose care is in question will not or cannot accept the restricted living arrangements needed for their safety, and the conservatorship was started by a local government agency.

 

Have further questions? Need a lawyer to help you with filing for Conservatorship? Give us a call 805.569.9400

Types of Bankruptcy

Filing for bankruptcy may be an option when one is overwhelmed by debt. There are several types of bankruptcy that may be filed, depending on the particular situation. We’ll look into the two more common types of bankruptcy: Chapter 7 and Chapter 13.  

Chapter 7

This type is the most common, and is available to citizens and businesses. When someone files this type of bankruptcy, all of their assets that can be sold, called “nonexempt assets,” are handed over to a trustee who sells them to pay off the client’s creditors. Whatever debt is left unpaid after that is cancelled.

However, you can’t file Chapter 7 Bankruptcy for certain types of debt, including, but not limited to:

  •  Alimony and child support
  • Drunk driving judgments and criminal fines or restitution
  • Debts incurred by fraud
  • Back taxes under 3 years old and student loans
  • Recent purchases involving substantial amounts
  • Properly executed contracts involving titles or liens such as land or automobiles

Chapter 7 may be an option if you have no hope of repaying any debts, you have debts without co-signers, you’re about to be sued by your creditors, you need to protect exempt property and income, or you don’t qualify for Chapter 13.

 

Chapter 13

This type of bankruptcy may help the client by structuring their debt into a manageable payment schedule over a period of time not exceeding five years. It requires the client to promise to pay off 10 to 100 percent of their debts by that time, the exact amount being determined based on the amount and type of debt.

Although there are restrictions on what Chapter 13 bankruptcy can be used for, these restrictions are fewer than those for Chapter 7. Chapter 13 Bankruptcy cannot be filed for alimony and child support, drunk driving judgments and criminal fines, and student loans.

 

Chapter 13 may be an option if:

·         You’ve filed Chapter 7 recently

·         You have debts with cosigners

·         You know you are able to pay your debts in five years

·         You do not qualify for Chapter 7

·         You’re late on your mortgage payments and you owe back taxes

Chapter 13 is a reorganization bankruptcy designed for debtors with regular who can pay back at least a portion of their debts through a repayment plan. If you make too much money to qualify for Chapter 7 bankruptcy, Chapter 13 may be the only option. However, many debtors choose to file for Chapter 13 bankruptcy because it offers many benefits that Chapter 7 bankruptcy does not (such as the ability to catch up on missed mortgage payments or strip wholly unsecured junior liens from your house).

Miranda Rights

What are they?

 

·         You have the right to remain silent.

·         If you do say anything, what you say can be used against you in a court of law.

·         You have the right to consult with a lawyer and have that lawyer present during any questioning.

·         If you cannot afford a lawyer, one will be appointed for you if you so desire.

·         If you choose to talk to the police officer, you have the right to stop the interview at any time.

 

Where did they come from?

 

The Miranda Rights, or more properly called the Miranda Warning, was the result of US Supreme Court Case Miranda v. Arizona (1966), which ruled that, when arrested, the arrestee must be read their rights (outlined above).

 

Miranda Warning Today

 

The Miranda Warning in its various versions is in fact still used today in each of the United States. However, since its creation, a number of restrictions have been placed on the Miranda Rights. You still have the right to a free lawyer, but only for up to 14 days after the arrest. Moreover, to activate your right to remain silent, you must state that you are doing so. Perhaps most important of all is that the police do not have to read out the Miranda Warning unless they are about to question you. 

Ten Little Known Facts about the Magna Carta

1. Before the Magna Carta was signed, widows and daughters of Barons could be sold by the King in marriage in order to make money.

 

2. Only 3 of the original 63 clauses of the Magna Carta are still in use. They include a defense of the rights of the English church, the liberties and customs of London and the right to a fair trial and only being arrested for a just cause.

 

3. The Magna Carta was valid for just 10 weeks.

 

4. Originally Magna Carta (Great Charter) was known as the Charter of Liberties. It became Magna Carta when a smaller Charter of the Forest was issued in 1217.

 

5. In August 1215, Pope Innocent III annulled Magna Carta, declaring it null and void and having been sealed under duress.

 

6.  It was sealed, not signed, and the new £2 coin to celebrate the anniversary mistakenly depicts King John with a quill pen in one hand.

 

7.  We know who sealed it, but we’ll never be sure who wrote it.
 

8.  There’s no single “original” copy, though only four copies written during 1215 remain today.

 

9.   If you call it “the Magna Carta,” you’re probably not English, who call it simply, “Magna Carta.”

 

10. Even though he affixed his seal to the Magna Carta, King John was so hated that no English king has been named John since. 

Expungement- What is it?

For those interested in clearing up their criminal record, one of the most popular ways is through expungement. A successful expungement can effectively erase the guilty verdict.  In California, expungement can only be used in cases where the verdict was a misdemeanor, or a felony that could have been a misdemeanor. However, there are some cases, such as sexual assault on a minor or a major vehicle code violation, that cannot be expunged.

 

To file for expungement basically requests the court to reopen the case, take back the plea or guilty verdict, annul any charges, and then close the case again without a conviction. The case will remain on record, but the verdict will be changed from a plea or conviction to a dismissal in the “interests of Justice” (IOJ).

If you are interested in an expungement and believe you meet the requirements, or have further questions, call in today at 805.569.9400

The DREAM Act Clarified

Since December 2010, the DREAM (Development, Relief and Education for Alien Minors) Act has served to provide temporary and potentially permanent legal status to immigrant children, as well as allow them to pay in-state tuition at state colleges and universities. To qualify for these benefits, a minor must:

·         Have entered the US before ages 15 or 16

·         Have lived in the US for five years or more

·         NOT have been convicted of a serious crime

Meeting these requirements allows a minor to obtain conditional residency. After that, they must spend two years in college or the military. Meeting all of these requirements allows the minor to achieve permanent resident status and apply for federal student loans and work-study programs. They are ineligible for Federal grants such as the Pell Grant.  

Need a lawyer to help you with DREAM? Contact the Santa Barbara County Bar Association