Statistics compiled by
Divorce Peers tells us in two out of three cases children stay with their mother in the marital home when couples split up. The vast majority of couples (sixty-five to eighty percent depending on the source) either agree at the outset how custody will be arranged or settle the matter during the pendency of their divorce. About sixty percent of couples agree for the mother to have primary physical custody.
Theoretically, courts abandoned the ‘mother is best’ mindset years ago, but it has taken time for the idea to sink in. In our experience, a mother is still more likely than a father to be awarded primary physical custody of the children if a case goes to mediation or trial, but fathers have steadily gained ground in the last twenty years. More fathers who want to be an active part of their children’s lives are fighting for that right.
The ultimate goal in a custody proceeding is to determine what is best for the children. A child needs the love and attention of both parents as long as they are fit to be parents. In deciding what is best for the children under California law, judges will consider many factors, including:
- The ages of the children,
- The emotional ties between the parents and the children,
- The ability of the parents to care for the children,
- The health of the children,
- Any history of family violence or substance abuse, and
- The children’s ties to school, home, and community.
Practically speaking, family court judges will also consider where the children have lived since the couple separated. For instance, if a father voluntarily left his children with their mother in the marital home and the children have lived with the mother continuously since the separation, a judge may decide the mother is the best primary custodian.
Why? Because a father who holds his children’s best interest above all other matters would not leave his children in a bad situation. Since he left his children with their mother and allowed them to reside there continuously, she must be a fit and suitable person to care for the children. In other words, the father’s actions support the mother’s claim that she is the best parent.
The point is to take care not to make the other person’s case for them. If you believe the children should live with you, then take steps to get temporary custody at the outset.
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Law Offices of Judy L. Burger, we will persistently pursue the best outcome possible for you in your divorce or custody proceedings, whether you need to demonstrate the other parent’s faults, or defend such claims.
Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. If you are a parent facing a custody dispute, call us today to learn more about how we can help. Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our
confidential inquiry form.
This article should be filed under the heading, “Things clients should ask, but don’t.” Granted, getting divorced is rarely a walk in the park, so it is very understandable when clients are too stressed to think clearly and ask all of the pertinent questions. That’s one reason we welcome phone calls and emails between meetings. An informed client is an empowered client, and mid-divorce is a good time to feel empowered.
So, without further ado, here is a list of five mistakes to avoid when getting divorced.
The recent decision by Los Angeles Lakers star Kobe Bryant and his wife Vanessa to forego divorce in favor of working out their differences is significant for several reasons. Most importantly their children will not have their lives turned upside down by the division of their family, and will continue to have Mommy and Daddy raising them together.
Hopefully the decision was not financially motivated, but we would be remiss if we didn’t also point out the fact that Bryant will save millions of dollars in child support and spousal support. Based on his reported income, Bryant could have been ordered to pay $1.3 million per month in payments to Vanessa if she were awarded primary physical custody.
Additionally, since the Bryants celebrated their tenth anniversary in 2011, their marriage is considered by California law to be long term. What this means is that all wages earned, and all items purchased since the day the exchanged nuptials would likely be considered community property and divided between the two accordingly.
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Adjusting to divorced life can be difficult, especially when struggling to make ends meet. A child support order won’t pay the bills if the other spouse is not paying accordingly. Some spouses who are ordered to pay child support or spousal support immediately commence the underworked and underpaid strategy. Thankfully, California provides a mechanism for separating the vocationally disenfranchised from the lazy.
If you believe your ex-spouse is voluntarily unemployed or underemployed and refuses to submit to a vocational examination, you can petition the family court to permit the examination. The process is initiated by filing a petition and showing good cause to support your request.
If the results of the examination show your ex has the capacity to generate earnings, the judge can impute income for purposes of calculating child support or spousal support. This means the judge can determine a fictional amount of income the ex should reasonably be expected to generate.
An experienced family law attorney knows the tactics used by parents who refuse to pay child support, including changing jobs frequently, moving from state to state, working for cash and childish defiance of the court order. At the 
A putative marriage is one where the couple intended to enter into a valid marriage, but for one reason or another, the marriage is legally void in fact. There may have been a legal barrier to marriage, such as one of the parties was already married to someone else, or unbeknownst to the couple, the official who performed the marriage ceremony was not legally authorized to do so.
Sections 2250 – 2255 of the California Family Code explains a putative spouse’s rights when the couple breaks up. Rather than a petition for divorce, one or both parties must file a petition entitled “In re the marriage of ____ and ____” and the petition must state that it is a petition for a judgment of nullity of the marriage.
Once the marriage is found void or voidable, then the Court may proceed to divide property, award spousal support, and award custody of the children in a manner substantially similar to standard divorce proceedings as though the couple were legally married.
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Common law marriage is a matter of state law, so the requirements for creating a common law marriage and whether a marriage exists at all vary from state to state. Under California law, it is not possible for a couple living in California to create a common law marriage, regardless of how long they live together or whether they refer to each other as husband or wife.
Nonetheless, California courts may recognize a common law marriage that was created when the couple lived in another state. For instance, in Alabama a couple may be considered married under common law if they cohabitate for a period of time, and if during that time they hold themselves out to the public as husband and wife. If the couple then moves to California and decides to break up, a California court may entertain divorce proceedings for the couple in deference to the valid common law marriage created in Alabama.
California’s policy of not allowing common law marriages to be created in California is somewhat balanced by California’s stance on “palimony.” The word palimony is a misnomer because it is not really the equivalent of alimony. Rather, a claim for palimony is based on a breach of contract theory and pursued as a civil action rather than in divorce proceedings. Essentially, a person being left behind in a breakup may be able to pursue compensation under a breach of contract theory if he or she can prove that a valid agreement existed between the couple for ongoing financial support.
A full discussion of palimony will be the topic of a later post, so check back soon to learn more.
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