How Does a Parent’s Military Service Affect Child Custody Orders?

How Does a Parent’s Military Service Affect Child Custody Orders?
Recognizing the unmatchable contributions of our nation’s military, the California Legislature enacted a law designed to protect military members’ custody and visitation rights.  California Family Code § 3047 provides that most absences and failures to comply with custody and visitation orders due to active military service shall not, by themselves, serve as a basis to modify custody or visitation rights.

The law imposes the following two requirements for a service member to take advantage of its provisions:

  • At issue must be the service members’ “absence, relocation, or failure to comply with custody and visitation orders”; and
  • “[T]he reason for the absence, relocation, or failure to comply [wa]s the party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.”
In addition, if a military parent receives temporary duty, deployment, or mobilization orders that will have a “material effect” on his custodial or visitation abilities, any resulting modification of the custody order is deemed temporary and may not interfere with the military parent’s later custody or visitation rights. When the temporary order is reviewed after the military parent returns, the court must apply a special rule: Unless it is in the best interest of the child, the temporary custody order must revert back to the original order.

The law also provides special accommodations for deployed military parents, under defined conditions:

  • Reasonable visitation rights to a child’s “stepparent, grandparent, or other family member”;
  • Expedited hearings;
  • The acceptance, from deployed military parents, of electronic evidence; and
  • The use of measures to avoid delay in custody and visitation cases.
As you might imagine, military parent cases are a top priority for California courts. If you are involved in a divorce and facing active duty, deployment, and mobilization orders, your experienced family lawyer can help position you as favorably as possible in custody and visitation matters. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Remedies for the Other Parent’s Failure to Assume Caretaker Responsibility

Remedies for the Other Parent’s Failure to Assume Caretaker Responsibility

Custody and visitation issues are often hotly contested, and rightfully so. Both parents usually want to continue strong relationships with their children despite the fracture of their own relationship. But there are times when one parent fails to take advantage of his time with the children, either in the form of custody or visitation. What happens if, as a result, the mother has to cancel work? What if she has to hire someone to babysit so that she can carry on with her own schedule?

Fortunately, the California Legislature has enacted a law that helps a parent faced with this situation. California Family Code § 3028 gives judges the power to “order financial compensation for periods when a parent fails to assume the caretaker responsibility.”

To obtain this compensation, the custodial parent must file a motion or an order to show cause alleging one of two circumstances:

  • That she has spent at least $100 due to the other parent’s failure; or
  • That the other parent has failed to exercise his custody or visitation rights at least three times.
In addition, the other parent’s caretaker responsibility must be spelled out in either an order or joint physical custody or an agreement between the parents. An oral arrangement between the parties will also suffice.

Recovery is limited to “reasonable expenses incurred for or on behalf of the child” that result from the failure to assume caretaker responsibility. For example, these expenses might include payment to a babysitter, day care, or other third party provider, or the value of the parent’s lost wages.

The law specifically requires the court to award attorney’s fees to the party who prevails if she can show the other party’s ability to pay.

It is likely that you will only become aware of certain opportunities, like the ability to recover expenses for unused visitation time, if you’re working with an experienced California family lawyer.  If you’re involved in a divorce or separation, you should contact an attorney with substantial experience in the area who knows the mechanics of how family law matters are handled. To obtain experienced legal help, contact the Law Offices of Judy L. Burger at (415) 259-6636 to discuss your case.

Parental Access to Child Medical Records

Parental Access to Child Medical Records
If you have never been denied access to your child’s medical records, you may be unaware of the patchwork of laws that generally grant parental rights to them. However, both federal and state laws govern aspects of parental rights to access their children’s medical records, and there are many exceptions to the general rule of access.

The HIPAA Privacy Rule and Child Medical Records

The main federal law that relates to a parent’s ability to access her child medical records is the Health Insurance Portability and Accountability Act. Nearly everyone has some basic level of familiarity with HIPAA because doctors must provide patients with privacy notices as a result of this law. Doctors require their patients to provide consent to allow medical information to be provided to certain people, known under the law as “personal representatives.”

What you may not realize is that, for the most part, HIPAA’s Privacy Rule allows you, as a parent, to access your child’s medical records as long as doing so does not contravene another law. The Privacy Rule considers you to be your child’s “personal representative” eligible to receive his or her medical information.

If any of the following apply, you are not considered your child’s personal representative and are therefore usually unable to obtain your child’s medical information:

  • When state law only requires your child’s consent (see list below);
  • When your child receives health care pursuant to a court order or the request of a person appointed by the court;
  • When you agree that your child has a confidential relationship with a health care provider;
  • When your child’s health care provider reasonably believes that allowing you to serve as your child personal representative could endanger your child; or
  • When your child’s health care provider reasonably believes that your child has been subjected to domestic violence, abuse, or neglect or that your child will be subjected to these in the future.
California Laws and Child Records

As you might expect, California has many laws that impact parents’ ability to obtain their child’s medical records. The most general provision is located in California Family Code § 3025, which provides rights, even to noncustodial parents, to a child’s “medical, dental, and school records.”

You will recall that the HIPAA Privacy Rule specifically disallows parental access to records when state laws allows minors to consent for their own procedures. Here is a summary of procedures for which minors may consent in California:

  • Minors of any age may consent to birth control (except sterilization), pregnancy, abortion, and sexual assault;
  • Minors 12 years of age or older may consent to receive HIV testing (if competent to provide informed consent); federally assisted alcohol and drug counseling; outpatient mental health treatment; and treatment for STIs, contagious, and reportable diseases.
In the following situations, California law allows a health care provider to notify parents only if a minor provides consent:

  • Birth control;
  • Pregnancy;
  • Abortion;
  • STIs, contagious, and reportable diseases;
  • HIV testing; and
  • Federally-assisted alcohol and drug counseling.
However, parents must usually be notified when a child seeks outpatient mental health treatment or health care for a sexual assault.

All of these situations are devastating to families, and it can be extremely frustrating for a parent not to be able to obtain records or information relating to their children. At the Law Offices of Judy L. Burger, we understand how important your children are to you. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.

What Is the Effect of Substance Abuse in California Divorces?

What Is the Effect of Substance Abuse in California Divorces?
California is a no-fault divorce state, but that does not mean that extenuating circumstances existing in a marriage cannot be taken into consideration by courts. Substance abuse and alcoholism are factors that can affect custody and visitation rights, as well as division of marital assets, and even alimony. A party to a divorce who suffers from substance abuse or alcoholism is at a significant disadvantage in the proceeding.

The most common effect of a party’s substance abuse problem is an adverse effect on child custody and visitation rights. Courts are bound by law to make such decisions in the best interest of the child, which I discuss in detail in an earlier blog.

When one or both of the parties are known to be substance abusers, custody and visitation must be structured to mitigate possible negative consequences to the child. A court even has the power to order periodic testing to ensure that a parent complies with an order to remain drug-free.

In rare cases, a court may find that one spouse’s substance-induced behavior during marriage depleted marital assets. Excessive use of marital funds to support an addiction, for example, could result in that party’s share of property distribution being reduced. The same analysis may be applied to the granting of alimony. If the addicted spouse has depleted marital assets to support the addiction, additional alimony could be awarded. More often, parties with such problems will settle for less favorable terms than the law may allow in order to avoid the notoriety a court proceeding might bring.

Establishment of a party’s substance abuse problem by the court is necessary before it can be considered for the mentioned purposes. One party may raise the issue, or it might become known to the court in other ways. Family members, representatives of the state Department of Social Services, or other interested parties might inform the court of a potential addiction or abuse. When the latter occurs, it is normally in relation to custody and visitation determinations.

Once the issue is raised, the court may order an evaluation or investigation to determine the validity of the report. This could involve consideration of existing records of substance abuse or the appointment of an investigator to determine the validity of the report and its potential effect on custody and visitation.

The final impact on custody and visitation orders varies, depending on the extent of the problem. In very extreme circumstances, a parent could be denied any share of custody or even visitation, or the court could order limited and/or supervised visitation. The court has wide discretion in determining what is in the best interest of the child.

The health and well-being of your children are important not only to you, but to the State of California. If your partner has a substance abuse or addiction issue, you need an attorney to fight for you and your children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.

What Happens at a Mandatory Child Custody Mediation?

What Happens at a Mandatory Child Custody Mediation?
Parents going through a divorce or legal separation need to know how their child-rearing responsibilities will be divided.  Ideally, the parents work together to establish a parenting plan that lays out the parties’ expectations about visitation and decision-making authority.  If the parents cannot do so, or if the judge does not approve the parents’ plan, the case is referred to child custody mediation.

The purposes of child custody mediation are threefold:

  • To reduce hard feelings between the parents;
  • To help the parents develop a parenting plan that is in the best interest of the child and that helps ensure the child’s continuing contact with both parents; and
  • To come to a child visitation agreement that is in the child’s best interest.

Mediation proceedings are confidential and are conducted by well-trained, neutral parties. Part of the mediator’s job is to help the family transition into its new relationship.  The mediator is required to consider the “best interest of the child” and the child’s “health, safety, [and] welfare” throughout the mediation process.  The mediator is also required to attempt to control for any power imbalances between the parties.

By law, the mediator must do the following:

  • Review the court file and intake form;
  • Conduct a parent orientation that explains the process and the child’s developmental needs;
  • If necessary, conduct interviews with the child;
  • Helps the parties develop a parenting plan; and
  • Discontinue the mediation if allegations of child abuse or neglect arise.

At the end of the mediation, if the parties come to an agreement, the mediator creates a written parenting plan.  The mediator also puts together a description of any additional case management or court procedures that may be necessary to resolve custody or visitation issues.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters, including child custody mediations. Make the call today to learn how our attorneys can guide you through the mediation process: (415) 293-8314.