Adoption By a Family Member

Adopting a family member is common when birth parents are not able to care for their children or when a step parent steps up to take on a legal parental role. In fact, the court will often seek out family members to serve as foster and adoptive parents as an alternative to putting children into the home of someone they do not know.


If you need legal advice regarding an adoption, you should work with an attorney who is familiar with the court process. Call Law Offices of Rick D. Banks today at (559) 222-4891.


Who May Adopt a Family Member?


Family member adoptions are often called “kinship adoption.” They occur when a child is adopted by someone with a biological relationship to them, such as grandparents, siblings, or aunts and uncles.


Step parents may also adopt children in certain situations where one or both biological parents are no longer able to care for the children.


Some jurisdictions also recognize “fictive kin” relationships for adoptive purposes. This includes family friends and other people with a close, non-biological relationship to the family.


Family Adoptions are Preferred


The state is often required to give family members preference over non-family members in adoption cases. In fact, when biological parents are no longer able to care for children, the state will look to families for caregivers first.


Kinship Adoption Process


The process of adopting a family member is similar to that of adopting a child who is not a family member. The state or adoption agency will do a home study, background checks on all household members, and other screening processes to ensure the child is going to a safe home.


Consent is often sought from biological parents for kinship adoption as well as step parent adoption, as their parental rights will be terminated if the adoption is completed.


Step Parent Adoption


The most common type of family member adoption is step parent adoption. This typically requires fewer screening processes and one of the biological parents is usually still in the picture.


In the case of step parent adoption, one parent may no longer be in the life of the child, leading to termination of their parental rights for abandonment. The step parent may step in and assume those parental rights.


Conditions for termination of parental rights are strict, and the child may be required to give consent if they are over a certain age.


Grandparent Adoption


Grandparent adoption is different from grandparent guardianship or custody. In guardianship and custody situations, the parents retain parental rights. However, with grandparent adoption, the parental rights are terminated and transferred to the grandparents.


Are Family Adoptions Open or Closed?


Most family adoptions are open because the parents are known within the family and still have some contact with the child. However, in some situations, family adoptions may be closed, especially if contact with the parents would be detrimental to the child.


Contact a Family Adoption Attorney Today


Adopting a family member can be a daunting process. You may have to deal with a plethora of paperwork and the legal process. Let us handle it for you. Call Law Offices of Rick D. Banks today at (559) 222-4891.



What Is Assisted Reproductive Technology?

If you have considered fertility treatment, you should consult an assisted reproductive technology attorney. Many people use assisted reproductive technology (ART) to conceive and give birth to a child. However, ART has many legal challenges that should be considered. Call Law Offices of Rick D. Banks at (559) 222-4891.


What Is Assisted Reproductive Technology?


ART is defined by The Centers for Disease Control and Prevention (CDC) as fertility treatments that involve handling of both sperm and eggs. This includes an array of methods that may help a person have a child, including:


  • Surrogacy – A gestational carrier may be used to carry the embryo of a couple
  • Intracytoplasmic sperm injection – This involves the injection of a single sperm into an egg. The resulting embryos may be implanted into a uterus or cryogenically frozen.
  • In vitro fertilization (IVF) – This involves the collection of both eggs and sperm, which are then introduced into a culture dish in a laboratory. If fertilization occurs, then the resulting embryos may be implanted in a uterus or preserved for later use.


Other ART methods may include intrauterine insemination (IUI), freezing sperm and eggs, and the use of donor eggs, sperm, or embryos.


Common Legal Issues Involving ART


Because ART can involve more than one couple wanting to conceive, there are many legal issues that can arise. Common challenges include:


  • Disputes over who owns the unused eggs, sperm, or embryos
  • Parental and custody rights for same sex or unmarried partners
  • Child custody issues with a surrogate or donor
  • Contract disputes
  • Negligence claims against fertility clinics and surrogacy agencies


Many states do not have laws specifically addressing ART. Thus, the court must interpret often archaic laws surrounding new age technology. Federal laws do not address family law issues, so only states laws are used to address ART and related disputes.


Get an Assisted Reproductive Technology Attorney to Protect Your Rights


When dealing with ART-related issues, you should speak with an attorney who can guide you through the complex laws. A skilled lawyer can help you:


  • Draft comprehensive surrogacy agreements
  • File a petition for a birth order determining legal parentage
  • Create prenuptial and other contracts regarding sperm, eggs, and embryos
  • Keep you updated on ART laws
  • Provide legal advice regarding ART and your rights


Fertility clinics and agencies will force you to sign contracts, often relieving them of any fault if something goes wrong. You should consult with an attorney before you engage in ART so that you know your rights and understand the process going forward if there is a dispute.


Call an Attorney Today


The Law Offices of Rick D. Banks can help you with assisted reproductive technology and related issues. We have handled ART issues for our clients since the science formed. If you have questions about your rights and what you should do in your specific situation, call us today at (559) 222-4891.


How Mental Illness Can Affect Custody in Divorce

Parents with mental illness and child custody issues are common in family law cases. Mental illness is suffered by many, whether it be anxiety, depression, bipolar disorder, or another condition. Not only can it lead to divorce, but it can also impact your child custody.


If you have questions about your specific situation in a family law matter, contact Law Offices of Rick D. Banks at (559) 222-4891.


Factors in Determining Child Custody


Mental illness is a factor considered by the court during hearings for child custody and visitation. If a parent is unable to care for their children, the court may not be inclined to award physical or legal custody to that parent or visitation may be limited. However, this should not scare parents who do have mental illness issues. The court will carefully evaluate every situation individually and do what is in the best interests of the child.


Other factors that the court will consider that are related to mental illness include:


  • The ability of each parent to provide food, clothing, and other necessities to the child
  • The ability of each parent to provide love and discipline to the child
  • School and community records
  • The physical health of each parent
  • The relationships between the child and each parent
  • The child’s wishes, if the child is of an age where they can form an opinion
  • History of domestic abuse
  • Wishes of each parent


The court may also consider other factors that it believes are important to the case.


When Mental Health Is an Issue


The court will consider mental illness as it would any other factor when determining child custody and visitation. A final decision will be made based on the severity of diagnosis and confirmed mental illness. In order to do this, the court may need access to a parent’s mental health records and treatment records from their doctors and any facilities in which they have been treated. The court can order you to release these records. If you do not, you may risk losing custody of your child or having limitations put on your visitation rights.


Mental Illness and Physical Custody


Physical custody of a child involves time actually spent with the parent. When a parent has physical custody of a child, they provide for the daily needs of a child, including a home. If a parent is so mentally ill that they cannot provide a safe home for their child, they may not be awarded physical custody.


Mental illness can also result in violent outbursts, abandonment of a child, drug use, and other issues. If these are factors in the child’s life, then the court will likely remove physical custody.


Mental Illness and Legal Custody


Legal custody gives a parent the rights to make decisions about how the child will live their live, including educational, medical, and religious decisions. The court often favors shared legal custody so that both parents influence a child’s life. The court would likely only remove legal custody if a parent is not mentally able to make decisions about their own life as well.


Mental illness can also cause a person to be argumentative. If the parents are unable to come to agreements, then the court may limit one parent’s legal custody.


Call a Child Custody Lawyer for Help


If you are dealing with a difficult situation involving parents with mental illness and child custody issues, you need an attorney to work out the details. Call Law Offices of Rick D. Banks at (559) 222-4891.

Signs of Parental Alienation

If one parent is trying to distance their children from the other parent, there may be signs of parental alienation. Attempts to alienate a child from a parent can be made for a variety of reasons, but the result is always negative for the child. If this is happening in your life, contact a child custody lawyer right away. Law Offices of Rick D. Banks can help. Call us at 559-222-4891.


Common Reasons for Parental Alienation

A parent may attempt to alienate a child from the other parent for an array of reasons. One of the most common is to punish the other parent for a perceived wrongdoing. If a parent wants to cause a problem for the other parent, they may take negative actions with the children involved.


Another cause of alienation may be a personality disorder that causes the alienating parent to respond to stressful situations in irrational manners. If parents are arguing and one parent is not able to communicate well because of a mental illness or disorder, they may attempt alienation to gain favor from the child.


Signs of Parental Alienation

Parental alienation may even be considered a syndrome if it becomes extreme in one parent. Common symptoms or signs include the following:


Making Children Angry at the Other Parent

A parent may criticize the other parent in order to make the children angry at them. For example, if a parent says they can’t afford new school clothes because the other parent used the money on a fancy new car, then they may be attempting to make the children upset at the other parent. Other common statements may be made about why the relationship didn’t work or how inconsiderate the other parent has been towards the family. This is often an attempt to use the child to get back at the other parent.

Speaking Badly of the Other Parent in Front of the Child

Even if an alienating parent does not make negative comments to the child directly, if comments are made within hearing distance of the child, they may develop anger towards the other parent. In these situations, the alienating parent often sees themselves as a “good person,” and they rarely take responsibility for their actions in the failing relationship. This amounts to passive aggressive actions towards the other parent.


Sharing Inappropriate Details with the Child

When a parent gives children details about divorce or parental conflict that should not be shared, they may be making attempts at alienation. This can cause a child to feel anger towards the other parent, and may make them feel responsible for the situation.


Using Body Language to Convey Negative Messages About the Other Parent

Rolling one’s eyes or shaking one’s head regarding things about the other parent can also send a negative message to children about the other parent. Children understand body language and alienation can occur through its use.


Co-Parenting Irresponsibly

Even if a relationship falls apart, two parents should still work together to provide care for their children. Co-parenting is an important part of a child’s life. If a parent refuses to be agreeable and make arrangements with the other parent, they may be alienating.


False Accusations of Abuse

Alienating parents often make false accusations of abuse, creating a negative situation in the minds of the children and the court. This can cause legal problems for the other parent as well as alienation from children.

How to Prove Child Abandonment

If your child has been without one or both of their parents for a period of time, you may wonder how to prove child abandonment. California has a variety of laws that address child abandonment and how it should be handled by the court. Read below to learn more about this situation. For more information about your specific case, call Law Offices of Rick D. Banks at 559-222-4891.


What Is Child Abandonment?

A parent may have abandoned their child if they have left their child with the other parent for over a year, without any communication or they have left their child with another person for over six months without any communication. Often, this happens when a child is left with one parent or a family member. Sometimes, the child will be left with foster parents or in state custody. However, if a parent fails to communicate with their children for a long period of time, abandonment may be a consideration.


Proving Child Abandonment

In order to prove child abandonment, you must show that a parent has failed to take part in their child’s life for a long period of time. That includes lack of visitation and no calls for one year if a child is with their other biological parent or six months if they are with someone else.


You must submit testimony or an affidavit to the court claiming that there has been no contact between the child and parent for a period of time. It is then up to the other parent to submit evidence that they have communicated with the child. If a parent is present and claims to have had communication with their child, it is unlikely that their parental rights will be terminated because they are making an effort to interact at that time.


Termination of Parental Rights

If a parent abandons their child, you may not have to go to court to litigate the child abandonment case; however, you will have to go to court to terminate a parent’s parental rights. If you fail to terminate parental rights, then a parent will still have the right to establish custody and visitation with their child.


If a parent agrees to terminate their parental rights, then the court process will be easier and less costly. You will still need to file an agreement with the family law court so that it can become a court order. Once the court issues an order terminating parental rights, that parent can no longer establish custody or visitation with the child.


Courts carefully protect the parental rights of biological parents. Both mothers’ and fathers’ rights are considered by the court during termination proceedings. If a parent agrees to terminate their own parental rights, it’s still important to consult with an experienced child custody attorney.


Contact a Child Custody Attorney About Child Abandonment

If you are wondering how to prove child abandonment, contact a child custody attorney right away. We will gather the necessary evidence to help support your case. Call Law Offices of Rick D. Banks at 559-222-4891.

Temporary Custody Order for Grandparents

Grandparents can gain custody of their grandchildren in various ways. One way is to obtain a temporary custody order for grandparents if there is a situation that warrants an immediate need for or temporary change of custody. Read below to learn more about custody orders that allow children to live with their grandparents.


Call Law Offices of Rick D. Banks for help with your child custody issues. When a grandparent wants to gain custody of their grandchild, it can be a complex issue fraught with many court hearings and legal documents. Contact us today at 555-222-4891.


Gaining Physical Custody with Power of Attorney

Grandparents may gain physical custody of their grandchildren through a power of attorney (POA). When a parent asks grandparents to care for a child on a temporary basis, it is often done through an information arrangement. However, a POA can ensure that the grandparents can make decisions regarding school and medical treatment.


A POA is a simple form giving custody to grandparents that is then notarized and submitted to the court. The court may then issue a temporary custody order for grandparents. A POA may be effective for a certain amount of time, ending on a specified date, or until the child is 18. Additionally, the parent may revoke the POA with the court at any time.


Some states allow parents to sign medical and educational consent forms that make a full POA unnecessary. If the parent’s whereabouts are unknown, grandparents may be able to file affidavits to obtain a POA and other consent to care for their grandchildren.


Fostering Grandchildren

Grandparents may also serve as foster parents for their grandchildren on a temporary basis. This may be called kinship care. In this situation, the grandparents get physical custody of their grandchildren, but the state retains “legal custody.” With legal custody, the state may make major decisions regarding education and medical care.


When grandparents are foster parents, they may have to go through training and certification. They will also be subject to visits and evaluations from Child Protective Services.


In 2008, a federal law passed that mandates notification of adult relatives when children are taken into state custody. Relatives are given an opportunity to foster and are provided with support to make the situation successful.


Guardianship of Grandchildren

When a grandparent serves as the guardian of a grandchild, they have legal custody and can make decisions about major life matters, such as education and medical care. A guardian may name someone else to care for their grandchildren if the grandparent is unable to do so themselves. Parents generally retain visitation rights under a guardianship situation.


Adoption of Grandchildren

Adoption is a more permanent placement arrangement than other change of custody situations for grandchildren. Adoption would give grandparents parental rights and the ability to make major decisions about all areas of a child’s life. Grandparents who adopt their grandchildren may be eligible for an adoption subsidy and adoption tax credits. Children remain eligible for medical care through the state.


Call a Grandparent Custody Attorney Today

Obtaining temporary custody orders for grandparents can be difficult. We can help. Call Law Offices of Rick D. Banks at 555-222-4891.

Reasons Grandparents Can File for Custody of a Grandchild

Considering Grandparents for Child Custody


Although it may seem like a positive move, the court will not grant custody of children to grandparents unless there is a legitimate reason why it is necessary. The court will not give grandparents special consideration, even though they are family members. Parental rights always come first unless the child is in danger.


Not Agreeing With Parenting Style Is Not Valid Reason for Change of Custody

Parenting styles are very different now than they were even a few decades ago. What was once considered “normal” discipline may not be called child abuse. Even celebrities’ parenting styles are being highly criticized by the public and courts for the way they discipline their children.

It is understandable that grandparents may not agree with the parenting style of their sons or daughters. However, having a different parenting style is very different than a child being at risk or in danger.


Conditions that May Warrant Change in Custody

The court will only consider changing custody of children in situations that are dangerous to the children. That may include:

  • Abandonment – If a child is being left alone for long periods of time or a parent has completely abandoned their child, the court may consider new custody arrangements.
  • Emotional Abuse – This can be more damaging that physical abuse in some ways, often requiring years of therapy or counseling. If you can prove that the children are being subjected to emotional abuse, the court may consider a change of custody.
  • Neglect – Even if parents are in the house, they may not be taking an active role in caring for the child. If they fail to take part in a child’s life and care for them properly, then the court may consider a change of custody.
  • Physical Abuse – If a parent is physically abusing a child, the court will consider change of custody. It is not necessary for the physical abuse to be malicious. In some situations, the parent may think they are doing what is best, but not in the eyes of the court.
  • Sexual Abuse or Child Exploitation – If you uncover that a child is being sexually abused or exploited, it’s important to call the police immediately so they can record the situation. A court will want evidence of this situation, and a change of custody is likely.
  • Substance Abuse – If parents are abusing drugs or alcohol and cannot properly care for their children, the court will consider a change of custody.

Contact a Child Custody Lawyer for Help Today

If you have questions about reasons grandparents can file for custody of a grandchild, contact Law Offices of Rick D. Banks at 559-222-4891.


What Is a QDRO?

What Is a QDRO  Family Law Attorney  Fresno CADivorce can be a difficult situation for anyone, especially if you’re dealing with complex assets like retirement accounts. A qualified domestic relations order (QDRO) can ensure that you get your fair share of any retirement benefits that were acquired during your marriage. But what is a QDRO, and how can it benefit you?

Understanding How a QDRO Works

A QDRO is a legal order that divides a private retirement plan in a divorce. It allows both spouses to get a fair share of a retirement plan that was contributed to during the marriage.

The spouse who originally earned the retirement benefits is called the “participant,” and the other spouse who will receive part of the benefit is called an “alternate payee.” A QDRO generally awards part of the retirement account benefit to both the alternate payee and survivor benefits in the event that the participant dies.

A QDRO isn’t automatic in California divorces. It must be requested as part of a property settlement during a divorce. It is a federal law that these retirement plans must be divided by a QDRO issued by a state court. The divorce decree or agreement between the parties is not enough to divide a retirement plan. Spouses can make an agreement regarding finances that do not include retirement accounts.

What Types of Retirement Plans Does a QDRO Cover?

A QDRO generally covers any private retirement plans that are covered by the Employee Retirement Income Security Act (ERISA) of 1974. This includes the following:

  • Private pension plans
  • IRAs
  • Thrift plans
  • Profit-sharing plans
  • Money purchase plans
  • 401(k), 403(b), and 457 plans
  • Employee stock ownership plans
  • Tax-sheltered annuities
  • Business/corporate defined benefit plans

Retirement plans associated with public job, such as military and government pension plans, are not typically addressed by a QDRO.

What Happens When a QDRO Is Made?

If you obtain retirement funds through a QDRO, then the court order will be signed by the judge and it will be sent directly to the pension or retirement plan administrator. It must be completed accurately for the court to sign it and for the plan administrators to carry through with the directions of the QDRO.

In some cases, when you are already at retirement age, the benefits will begin paying out immediately. In other cases, when you are not yet of retirement age, you will have to wait for retirement funds to begin paying out.

Amounts Payable to the Alternate Payee

Unless the QDRO specifies a specific amount that is payable to the alternate payee, the QDRO preparer will use a formula to tell the plan administrator how much should be paid to the alternate payee. The formula can allow for adjustments to be made in the benefit over time.

Some QDROs allow for lump sum payments to the alternate payee, and others offer payments much like a retirement benefit. Lump sum payments may be rolled over into a personal IRA or other eligible plan. Monthly installments may be made over a period of time.

Speak to a Fresno Family Law Attorney About Preparing the Order

Because the QDRO will go directly to the court and requires in-depth legal knowledge, it should be prepared by an experienced Fresno family law attorney. Call the Law Offices of Rick D. Banks today.

How to Stop Supervised Visitation

How to Stop Supervised Visitation Visitation Lawyer Fresno CASupervised visitation may be imposed when the court is concerned that a noncustodial parent may not be able to properly care for a child during their visitation time. In that case, visitations may be supervised by a third party. However, these types of visits can make it difficult for noncustodial parents to truly engage with their children and build meaningful relationships. Below, we discuss how to stop supervised visitation, and how a child custody attorney can help.

Can Your Supervised Visitation Order Be Overturned?

The court may order supervised visitation for a number of reasons, and some of those reasons automatically prevent the noncustodial parent from ever being alone with a child ever again.

The most common reason for a permanent supervised visitation order is when the child is a sexual abuse victim of the parent. Even if the noncustodial parent has completed their term in prison, they will likely be required to adhere to visitation with a third party nearby.

In some states, a sexual assault conviction on any minor will result in a permanent supervised visitation order. For example, in Missouri, visitation rights would be granted if they were in the best interest of the child, but the time would be limited and someone else must always be in the room.

The court may also refuse to overturn a supervised visitation order where there was severe abuse or neglect of the child, where the noncustodial parent was the abuser or is still with the abuser and mental health issues are unaddressed.

Proving That You Are a Fit Parent

A supervised visitation order was put into place because the court felt you were a danger to the child. When determining how to stop supervised visitation, you must first prove to the court that you are now a fit parent. You will need to provide evidence that the issues that deemed you unfit have been resolved.

For example, if you were ordered to adhere to supervised visitation because you were addicted to alcohol, then you should show that court that you have been clean for a period of time. That may include a letter from a rehabilitation center and drug tests showing you do not have alcohol in your system.

How to Stop Supervised Visitation

You will need to file a motion with the court to modify your custody/visitation order. Although these forms are generally available online or from a court clerk, you will need to know exactly what type of information to present to the court to prove that your supervised visitation order should be overturned. This is best done by an attorney.

A hearing will be scheduled after you submit all necessary paperwork. During that hearing, you will present your own testimony and the court will review evidence that you are now a fit parent. If the court determines that you are no longer a danger to your child, then your supervised visitation order will be overturned.

It’s important to note that the custodial parent can object to changes in the supervised visitation order. However, they will have to present counterproof that you are not a fit parent. When submitting proof that your supervised visitation order should be overturned, you should anticipate any submissions by the custodial parent and address those early.

Contact a Fresno Child Visitation Attorney to Learn More

For more information about how to stop supervised visitation, contact a Fresno child visitation attorney at the Law Offices of Rick D. Banks.

Reasons a Judge Will Change Custody

Reasons a Judge Will Change Custody Fresno Child Custody LawyerWhat are reasons a judge will change custody? The judge’s primary concern is doing what is in the child’s best interests. However, the needs and interests of a child, as well as each parent’s ability to meet them, may change over time. Thus, a change in custody may be necessary at some point.

If you are considering asking a judge to modify custody of your child, an experienced family law attorney to walk you through the process. Below, we discuss some factors the court will consider in child custody modification cases.

Emotional and Physical Stability

A parent’s ability to provide a child with stability is a critical factor in custody proceedings. Children do best when they know what to expect and can count on their parents. If a parent’s life is constantly chaotic, the court may see this as a reason to change custody. Examples of this include:

  • Frequent moving
  • Emotional instability
  • Drug or alcohol abuse
  • Frequent new relationships or marriages
  • Frequent job changes or unpredictable work hours
  • Failure to make the child available for visitation with the other parent

You must be able to prove that something has materially changed since the original custody order in order to get a judge to modify custody. One material change may be a substantial change in the custodial parent’s living environment.

Child’s Academic, Emotional, and Physical Needs

Included in reasons a judge will change custody are significant changes to a child’s school performance or emotional or physical health. If a child is receiving failing grades in school, then the court may think the other parent is a better fit. That parent may live in a school district with better access to resources that can help support the student’s academic struggles.

Similarly, if a child is frequently hospitalized for untreated illness, a noncustodial parent may be awarded physical custody, especially if they have better access to health care. One poor grade or recurrent ear infections likely aren’t enough to warrant a custody change, but the court will consider the ability of each parent to meet the child’s academic, emotional, and physical needs.

Relocation of a Parent

A noncustodial parent may also use the relocation of a custodial parent as an argument to change custody. Such a move may drastically reduce the noncustodial parent’s time with the child or their relationship with siblings. However, the court will still consider what is in the child’s best interests.

Preferences of the Child

If a child is emotionally mature, then the court will likely consider their preferences in where they would like to live. A child will not likely testify in a custody case, but their wishes may be indicated from an appointed person, such as a guardian ad litem.

Abusive and Violent Situations

If a child is in an abusive or violent situation with a custodial parent, the court will remove them immediately. A parent can file an emergency motion to modify custody and address the situation right away.

Call a Fresno Child Custody Lawyer Today

To learn more about reasons a judge will change custody, call the Law Offices of Rick D. Banks.