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How Do I Obtain Guardianship of My Adult Child? And More Free Legal Advice – Free Joe 10/2/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Nancy: Good Morning ,
I am a parent of a 20 year old son who has Down Syndrome and would like to know the most reasonable way to obtian guardianship. I am on a limited income. Peace

Joe Escalante: You petition the court (Family Court) for guardianship. Most court houses have pretty good self-help departments that will assist you in filing the guardianship papers. Good luck.

Monica: how do i get help getting my 12 year old son back from his aunt and uncle who are mistreating him?

Joe Escalante: I’m assuming your parental rights were terminated at one point. If that is so, you petition the court to restore your parental rights, or at least terminate the rights of the evil aunt and uncle. If your rights were not terminated, just drive over there and honk until they come out.

Isara: I was involved in an accident a car hit me while I was riding my bicicle, I took the person who hit me to court but I lost the case, a few days ago I was served a citation to small claim court where the lady who hit me with her car is going to be asking me questions about my earnings and what I own, the only thing I own is a car and , a bank account with no more that $80 and I have a part time job from where I just get what I need to survive and go to school, should I file an exemption to protect my wages? What are the negatives for me if I do so

Joe Escalante:

Monica: Has anyone successfully sued child support?

Joe Escalante: Yes. It is a process though. In California you first have to file a claim with the Victims Compensation and Government Claims Board.

Donna: I am married and have been for 12 years and my husbund got remarred in July 2012 without getting a devorced. What should I do if anything?

Joe Escalante: You can file for divorce in your county. It will be granted immediately on the grounds of polygamy. If you want you could stir up trouble for him as a polygamist in his county, but if you want to move on, just file for your divorce and be done with it, but ask for support from the creep. Or you can move in with them and maybe get a reality show.

Chuck: how long can a mortgage company hold your payment w/o posting or refuse to sign certified mail showing it was received?

Joe Escalante: Theoretically, if you can prove they received it, that is all you need to do to prove payment. They can hold onto it forever and it wont hurt you. If you are suspicious, cancel that one and send the next one by certified mail to prove payment was received.

Glenn: what kind of lawyer can help me battle an inaccurate report made by the board of health about my house that i have lived in for 45 years and still occupy and fixing everything she put on her report thanx for any help

Joe Escalante: You need a lawyer experienced in litigating against government agencies. It’s tough work, but there are some who specialize in it.

Trina: How do you change your will? Do you need to start from scratch? We did ours on Legal Zoom. Mostly we need yo change guardianship of our child in case we die.

Joe Escalante: Usually it requires drafting a new will from scratch. However, since you got yours from Legalzoom, they will help you get a new one made and depending on the package you bought, it might be free. But don’t quote me on that. I’m just a skull with two crossed gavels.

Amazon: How is it that you sign a one year lease but building owners can still raise the rent whenever they want? What’s the purpose of signing a contract :(??? Thanks

Joe Escalante: That would only be true if you sign a lease that allows your landlord to raise the rent during the lease term. You’re right, that would be kind of useless. However, if the market dictates, it might be possible. You would theoretically have a cap on what they could charge, but you could not be thrown out on the streets if you paid it.

Justin: Hey Joe, My name is Justin, I got way to drunk one night in NYC and got a disorderly conduct ticket. I wasn’t arrested but I need to appear in court. unfortunately I can’t remember exactly what happen. do I need a lawyer at my appearance? What can I expect at court? will it just be paying a fine? Thanks for responding and any help in the matter.

Joe Escalante: Congratulations. That’s not easy to do in a city like that. I tip my hat to you. If it is your first offense, it is likely that the court or prosecutor will offer you a way to reduce the impact on your record by attending some alcohol abuse prevention classes, or AA classes. Take the offer. If it is a 2nd offense, then I would plea not guilty and talk to a criminal defense lawyer, and go from there.

KC: If my college requires that for student clubs and orgs to raise funds that they must go through a specific vendor that has an exclusive contract with the district, are they potentially violating the anti trust statue of Tying here in California?

Joe Escalante: You’re on the right track. It is a suspicious collusion that would theoretically affect the market because that vendor doesn’t have to charge competitive prices. It also represents a barrier to market entry, which on it’s face is a violation of the anti-trust laws, per se. However, tying is more associated with having to pay for a product you don’t want to get a product you do want.
If it is a public school, they may be exempt, but if it’s a private school, it seems even more fishy.

Yolanda: In the State of Indiana, can a Property Management keep your Security Deposit cause you refused to move in when they want you too? Ex. I paid the Security Dep. on the 11th, approved on the 15th. I already gave notice of moving from current landlord and will be moving out on the 1st of the next month. The New Property Manager says I need to take possession by the 24th of the current month or I will loose my Security Deposit. Nothing in writing states this either. ???????

Joe Escalante: They can keep the security deposit if you unlawfully remain in possession of the property contrary to terms of the lease, or if you break some stuff.
If you feel that they have no right to keep what they are claiming, then you file a claim in small claims court. It happens all the time. It will hinge on the language of that agreement and the writings back and forth between the parties. Make sure all your claims can be supported by writings. Good luck.

Yolanda: We never had possession. We answered a For Rent and placed an Application and they requested a Security Dep. to hold and we was approved. Than the next week demanded for us to move in or loose the Security Deposit.

Joe Escalante: If there is no move in date, that would be your argument in small claims court, but the paperwork is still going to dictate everything.

Kate: Is there a way to compel my record label to give me a copy of my contract? Is there a low cost or free way for musicians to have a contract reviewed, and get advice about possibly breaking the contract? Thanks!

Joe Escalante: You should call my radio show this weekend on KTLK in Los Angeles and I’ll give you all the advice I can about your situation. In general, if you lose your contract, you are at their mercy unless you take them to court and make a discovery request. It’s not good to let them know you don’t have a copy because they could make a fake one with your signature at the end and how would you know? Call me on Sunday. If we are pre-empted by sports, use the Contact section on to get your question to me.

Denise: What age does a child have to be to decide which parent they want to live with

Joe Escalante: It varies by state. Some states never let them decide.

Sonya: basically my husband was served the divorce papers he has 30days to respond, right? I filed an amendment asking for spousal support husband was served by law he has 30days to repond, right?

did he lose all his rights to this case?

he does not agree with spousal support and will not sign divorce papers. any suggestions?

Joe Escalante: Civil procedure for divorce cases varies by state so I don’t know how long he has to respond. Keep up with the process. If he never responds, a judgement will be entered against him. However, the court doesn’t like to do this, so they will give him every opportunity to have his day in court.

Kimberly: I have someone illegally accessing my private facebook, credit, travel etc. How can I go about stopping her?

Joe Escalante: If you know who she is, file a police report for identity theft. If you don’t know, close all the accounts and start over.

Angel: How do I get my ex to pay me the 401k money she owes me. She received her portion from mine but is not willing to give me my share of hers…

Joe Escalante: You petition the court to compel her to follow the court order. If she doesn’t follow the court approved divorce decree, she’s in contempt.

Melissa: What can I do if: A past attorney friend who has represented both now ex and I, on separate occassions… Who has been coaching me & refering me to other friend(s) as divorice attys, to find out… he or they is/are playing both sides & tried setting me up! …Should I contact Legal Bar Assc or a State Atty Probono?

Joe Escalante: This will be too hard to prove in my opinion and the bar associations are weak, if not useless entirely. A court would wonder why you didn’t see this coming. The responsible thing to do would be to hire, and pay for, an independent attorney. You didn’t do that, so you really need to just learn from this and move on.

Francisco: I have aa citation in samall claim court where the collector will be asking me about what property i own and my wagesn should i answer all his questions? what if i dont want them to have my taxes information

Joe Escalante: You can refuse to answer, but it may affect the outcome of your case negatively. You just can’t provide false information. For example, “I refuse to answer” is different from “I don’t make any money” (when you really do).

William: how does one cut through the red tape of an automated phone system to find out the fine for an appearace ticket for being in the park after dark before it become serious? and, if you’re not contacted for sentencing on a misdemeanor by the lawyer or judge, is there a way of finding out without turning yourseld in on a bench warrent what decision was made on your case?

Joe Escalante: Phone calls to the district attorney or city attorney would do the trick in some court houses, but they are all different. Some don’t even have automated phone systems.

Stephanie: My ex-husband, after living out of state for 3 years, recently moved back to FL and has been exercising his visitation. He decided it was his parental duty to teach our 6yr old daughter to be racist. This is completely unacceptable to me. I have talked to my daughter, but I was wondering if this comes up again, do I have any legal recourse? CanI ask a judge for supervised visitation?

Joe Escalante: Based on this behavior, I think you would have a decent chance of petitioning the court to modify the support order for supervised visits only. It is not in the best interest of the child to become a racist, even in Florida. However, be prepared for the racist to also be a liar. You need to have good evidence. Try to get some other witness besides the kid.

Ned: This is a question for Mr. Escalante. I have a friend of mine that has a California corporation. She and her husband run a small business underneath this corporation, and they have health insurance for both of them in California. They have recently had to move to NY state for work purposes, but they wish the company to remain a California corporation so they maintain their health coverage. My friend asked me if she could use my address for her company. I understand that by doing this I would be acting as a registered agent for her company. In doing so, do I expose myself or my assets to any potential liability?


Joe Escalante: You can be the registered agent of the company in California. That only serves the purpose of providing the Secretary of State with the satisfaction of knowing that if someone does want to sue the company, they can reach them through you, and they can’t pretend they have not been served if a summons comes to you.
However, that is not the same as having a place of business in California. If they are doing the work in New York, they are going to have to pay taxes in New York as a foreign corporation. This might make little difference since California and New York are high tax states.
However, it would make a difference they were moving to Nevada or Texas, places that have no state tax.
This is why it’s a scam to think you are getting some great deal by having a Nevada corp. You pay taxes where you do business, not where your agent is.
I don’t see any significant liability for you to do this for your friends, as long as you pass along any mail, and can prove that you did such.
They really need to talk to their tax pro to make sure they are doing the right thing here. Good luck Ned.

Pamela: Do I have to get a new will made up every year . I did my first one with you a few yrs ago and was not sure if they need to be updated .and do you keep it on file .in case I have misplaced it.

Joe Escalante: You never need to update your will unless circumstances change significantly. If you want to change the terms, then you usually just make a whole new will. Depending on the Legalzoom package you got, your will might be on file at Legalzoom, and it might be free to make a new one. Call customer service to see what you got. Good luck.

LegalZoom: Here’s the number for Customer Care, Pamela: 800.962.7490


Joe Escalante: There’s just the Dream Act for young people brought here prior to a certain age. That’s the only new one I know about that significantly changes things.

LegalZoom: Joe will be back on Friday to answer more legal questions.

Join us then, and in the meantime, check out Barely Legal Radio w/ Joe Escalante.

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October 4th, 2012 at 6:00 am