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Attorney & Mediator
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How to reopen a Family Law case in California Sacramento ...

Resolved Question:

How to reopen a Family Law case in California Sacramento area.
How long due you have to set aside an adoption?
How long due you have to sue an attorney after finding a mistake?
Submitted: 7 years ago.
Category: Legal
Expert:  Attorney & Mediator replied 7 years ago.
Is this a case involving removal of a child by child protective services?

Did you have a trial or hearing where your parental rights were terminated?

Please clarify. Thank you.
Customer: replied 7 years ago.
No.
No.
Expert:  Attorney & Mediator replied 7 years ago.
Thank you for your reply. But we still need some clarification inorder to research applicable law and assist you better.

1) Why is there an adoptions in this family law case?

2) Have you already filed an appeal?

3) On what grounds to you believe this attorney made a mistake?

Thank you.
Customer: replied 7 years ago.
I met my ex wife, married, and adopted her children because the biological father was detrimental to them. The biological father gave up his parental rights. 30 days from the exact date I adopted them, my ex wife through me out of the house. So she got custody of the children, ended a ten years custody battle, and rid the biological father as well. I'm trying to prove fraud. Does it seem odd after adopting her children I was asked to leave?

I already hired two attorneys and my second attorney wouldn't appeal the case. I'm not an attorney an tried to do the court paperwork. However, the Court dismissed the case.

My first attorney wanted me to pay 2500.00 dollars for two children and spouse support. I told him I could afford it or even come close to it. I was only married 2 years and 4 months. He said sign it and pay what you can until we go to Court. Everytime I called his office, his assistant would quote the Rules and Regulations of California Law. He never petitioned the Court for a trial date to set aside the adoption which left me in contempt of Court then he quick the case. I complained to the State Bar of California and he had to go into a program for attorney with mental, alcohol, and substance abuse problems. He had to admit mishandling my case.
I hired a second attorney to set aside the adoption based on fraud, but at a Settlement Conference I didn't agree with the proposal; however, my attorney didn;t want to go to trial which was the next step. She wouldn't even help to appeal the case.
Both agreements were signed under duress because I wanted to go to trial; they ignored their client which was me.
Expert:  Attorney & Mediator replied 7 years ago.
Thank you for the clarification.

You typically have 30 days when the decision is handed down to file for an appeal and from there you have approximately one year for there to be a hearing on the appeal. This appeal would be in regards XXXXX XXXXX latest hearing you had; the one involving the settlement conference. However, the problem I see here is how you would go about convincing the appellate court that you did not wish to settle but set the matter for trial, since you signed the settlement agreement. Additionally, appeals only involve the review of the lower court's decision; to see if the lower court misused or misapplied the application of law when it rendered it's decision. The appeal will not change it's ruling unless it found the court erred in its application of law before it decides to remand (send back) the case to the lower court.

So to appeal you need to determine:

1) If you are still within time to appeal the last court decision?

2) How would you convince the court to appeal for a rehearing?

3) Did the court commit any error in handing down your SC order?

I think what you might be able to do is start all over by petitioning the court for modification of the settlement agreement. But first read the settlement documents to see if you have the right to seek court intervention. If your request for modification of the settlement agreement (SA) is granted, this will reopen the issue and then you can attempt to resettle or set the matter for trial.

Based on the facts as you have stated them, the appeal appears to be timed barred and its application is irrelevant as appeals only review for court error. Your best bet is to petition the court again for modification of your current settlement agreement.

As you know every attorney has the fiduciary obligation to provide competent and zealous representation of his client's interest and if you feel that she did not act competently in your representation you can again file a complaint with the disciplinary committee. Infact, you can then use the findings of the disciplinary committee and sue for malpractice.

Lastly to make sure I cover your questions, if your appeal was dismissed, you can no longer appeal again. However, if your appeal was dismissed without prejudice then you will be able to appeal. If you wish to attempt a subsequent appeal, I suggest you consult with appellate attorney who have experience with these types of appeals, do not consult with family law attorneys (if you wish to appeal) that don't engage in such a practice.


Legal Disclaimer: The information given by me is for informational/research use only and you are paying me only for such information. The information contained herewith is not legal advice and by rendering such information there is no formation of an attorney-client relationship. I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are advised to speak with the appropriate legal counsel for accurate information. Thank you.

Customer: replied 7 years ago.
1. The Settlement Conference was held in October 18, 2005.
2. The Judgement was entered into Court on the 30th of March 2006 by my attorney without my presence. She went into Court without me after I told her that I had hip replacement surgery and unable to drive to the Courthouse.
3. I have a letter stating my first attorney mishandled my case with the State Bar of California. I guess I need to complain to the State Bar concerning my second attorney.
4. I don't know if the Court committed an error. I wanted to go to trial.
5. I don't understand without prejudice with the appeal being dismissed. Could you help.
6. The longer this goes on, I feel that nothing is going to be accomplished.
7. I think I will start with the modification of the Settlement so I can reopen the case.
Expert:  Attorney & Mediator replied 7 years ago.
Thank you for your reply.

1) As I stated before an appeal reviews for court error. I doubt the court committed error as the Judge accepted what he believed was a proper settlement agreement. This is why I had concerns that the appeal would not work.

2) When a judgement is rendered "without prejudice" that means you can petition the court again on the same legal basis. However if your appeal attempt was dismissed without any indication that you can appeal again (on these same grounds) then you cannot bring up the appeal again. To best answer this question, read your dismissal order and see what it says about appealing on this issue again. If it is not clear, you might have to request to review your case file at court and see what the Judge's ruling was on that day your appeal was dismissed.

3) I believe your best shot is to petition the court for modification of the settlement agreement because it has been over one year since the last settlement agreement was entered into and appeal limits are at least 30 days from the last order issued by the court.

4) The best way to do this is the modification route, you can attempt settlement again and if there is no agreement you can set the matter for trial.

5) If you believe your second attorney did not act towards your best interest, then filing a complaint on this second attorney may be warranted. Some attorneys knowing their client's will be having hip surgery would at least attempt a continuance request and proceed if it cannot be granted. It appears on what you have said that your second attorney may not have acted zealously in your representation.

Legal Disclaimer: The information given by me is for informational/research use only and you are paying me only for such information. The information contained herewith is not legal advice and by rendering such information there is no formation of an attorney-client relationship. I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are advised to speak with the appropriate legal counsel for accurate information. Thank you.


Customer: replied 7 years ago.
My second attorney entered the Judgement from the Settlement Hearing after I told her I couldn't appear. I had been told that my signature was needed to enter it into the Court. I told my attorney that I wasn't going to sign it to make it official. However, the Settlement was signed under duress. So, can my attorney enter the Judgement into the Court without my presence and signature.
Expert:  Attorney & Mediator replied 7 years ago.
Thank you for your reply. Yes, the attorney can enter the settlement agreement without your presence so long as you signed. This is probably why she did not request the continuance. However if your signature was obtained under duress, this can be grounds to report it to the disciplinary committee.

Legal Disclaimer: The information given by me is for informational/research use only and you are paying me only for such information. The information contained herewith is not legal advice and by rendering such information there is no formation of an attorney-client relationship. I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are advised to speak with the appropriate legal counsel for accurate information. Thank you.


Attorney & Mediator, Lawyer
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Experience: Attorney & Certified Mediator
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