FAMILY LAW

Divorce and Gaurdianship

Civil Protecton Order (CPO)

A divorce action may involve and incorporate various area of family law such as custody, support, division of property and alimony.  It is imperative to fully understand the legal parameters and process and to engage with the full understanding of the statutory guidelines.   Understanding the law is empowering and can increase the likelihood of prevailing in the matter.   The main categories of divorce law are:  

• Division of Property:  Equitable distribution of property.  
•  Alimony:  Legal factors and consideration in awarding alimony. 
• Prenuptial Agreement:  Comprehensive premarital agreement defining and designating assets and obligations. 
• Child Custody:  The governing principle in awarding child custody is the best interests of the child.
• Legal Separation:  A decree for legal separation is generally sought in order to have the court declare legal separation and toll the time required  (6 months if voluntary or one year if involuntary) before a divorce decree can be granted as well as having the court address preliminarily child custody, child support, and spousal support and even division of property.  There are also times that parties do not wish to divorce for religious, financial or other reasons and legal separation can provide the necessary legal clarity short of divorce.  The requirements for legal separation almost mirror that of divorce.  Specifically, a decree for legal separation from bed and board may be granted if:  Parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation; or That both parties have lived separate and apart without cohabitation for one year preceding the filing of the action.
• Premarital agreement:  Also called prenuptial agreement, a premarital agreement is a  contract between a future couple which delineates financial obligations of each party in the event of marital dissolution, separation, annulment or termination of a domestic partnership.

Adoptions

In Washington DC, the adoption process generally starts with filing of the adoption petition.  Once the adoption petition is filed, the DC family court adoption clerk issues an order of reference and a show cause order both required to be served on the biological parents to provide the initial legal notice.  The parents would either consent or the matter would be contested in which case the court will evaluate the following factors in rendering a decision.

In a contested, the court may waive the need for parental consent when:  

• A parent cannot be located Or has abandoned the prospective adoptee,
• And has voluntarily failed to contribute to the child’s support for a period of at least six months next preceding the date of the filing of the petition.

The court may also independently waive the need for parental consent when the court finds by clear and convincing evidence that  the consents are withheld contrary to the “best interest of the child”.

The court after considering the petition, the consents or waiver of parental rights via elements enumerated above, has to make a fitness determination before an adoption petition is granted by determining whether the adoption petitioner is fit to adopt and the child is fit to be adopted.  The adoption petitioner would have to show by clear and convincing evidence that:  

• the prospective adoptee is physically, mentally, and otherwise fit to be adopted by the petitioner; 
• the petitioner is also fit and able to give the adoptee a proper home and education; the adoption will be for the best interests of the prospective adoptee; and 
• all the requisite state and federal forms have been completed by the petitioner.

The effects of adoption decree:  

• Establishes parental rights for the adopter; 
• Creates natural parent/natural child relationship between the adopter and the adoptee; 
• Establishes right of mutual inheritance and succession between the adopter and the adoptee; 
• Terminates parental rights of the natural parent.

Guardianships

In the District of Columbia permanent guardianship generally enumerates the permanent guardian’s rights and responsibilities concerning the care, custody, and control of the child or an adult.  

 CHILD GUARDIANSHIP:  According to the relevant DC guardianship statute, upon issuance of a guardianship order, the permanent guardian is granted physical custody of the child and is required by law to provide day to day care of the child including but not limited to providing: food, shelter,  clothing, education, discipline, health care as well as providing legal assistance when needed and authorizing releases of information for health care or educational purposes.  The Court may issue a DC guardianship order only after concluding that:  

• Such is in the child’s best interests; 
• Adoption/termination of parental rights or return of the child to the biological parent is not appropriate; 
• That permanent guardian is fit and able to provide a safe and permanent home environment for the child. 

In determining whether it is in the child’s best interests that a permanent guardian be designated, the court shall consider each of the following factors:  

• The child’s need for continuity of care and caretakers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;  
• The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child; 
• The quality of the interaction and interrelationship of the child with his or her parent, siblings, relatives, and caretakers, including the proposed permanent guardian;  
• To the extent feasible, the child’s opinion of his or her own best interests in the matter; and 
• Evidence that drug-related activity continues to exist in a child’s home environment after intervention and services have been provided pursuant to section 6-2104.01. Evidence of continued drug-activity shall be given great weight.

ADULT GUARDIANSHIP:  A petition for an incapacitated individual may be filed by any person interested in the welfare of the incapacitated individual.  The petition may be limited, temporary or permanent and must include:  

• The petition shall state the name, address, and interest of the petitioner, 
• State the name, age, residence, and address of the individual for whom a guardian is sought, 
• Set forth the reasons for which the guardianship is sought with specific particularity so as to enable the court to determine what class of examiner and visitor should examine the person alleged to be incapacitated. 

The petition shall be served upon the subject of the petition.   After the filing of a petition, the court will schedule a hearing on the matter and will appoint counsel for the incapacitated person.  The court will also appoint an appropriately qualified examiner who will submit a report in writing to the court. The incapacitated individual will be also interviewed by a visitor appointed by the court. The examiner and the visitor shall be separate persons.  

The court may waive the appointment of a visitor and, where a report has been submitted in writing to the court for the allegedly incapacitated individual, the court may waive the appointment of an examiner.  The court shall waive, absent good cause shown, the appointments of a visitor and examiner if the petition seeks appointment of an emergency guardian or a health-care guardian and the petition is supported by the certification of incapacity.  

When the incapacity alleged is due an intellectual disability, preference is for the appointment of an examiner and visitor who are qualified developmental disability professionals and who can collectively give a complete social, psychological, and medical evaluation of the individual.  

For any individual alleged to be incapacitated, any current social, psychological, medical, or other evaluation used for diagnostic purposes or in the development of a current plan of treatment or any current plan of treatment shall be presented as evidence to the court.  

An individual alleged to be incapacitated shall be present at the hearing unless good cause is shown for the absence. The individual shall be represented by counsel and is entitled to present evidence and to cross-examine witnesses, including any court-appointed examiner or visitor.