Monthly Archives: June 2016

Child Custody

What Is a Child Custody Investigation?

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What Is a Child Custody Investigation
A child custody investigation is designed to help the family court determine the custody arrangement that is in the “best interest of the child.” In acrimonious divorce or legal separation proceedings, the parties may be vying for custody of their children. It can be difficult for a judge, sitting in a courtroom, to balance the evidence and determine what is best for the children. Child custody investigations can help identify and frame the issues the judge needs to resolve.

Child custody investigations are required by law any time there is a “serious” allegation of child abuse. This includes situations in which any of the following people allege child abuse:

  • The child, made to a law enforcement officer;
  • A child welfare services agency investigator; or
  • Any person who is required by law to report suspected child abuse.

A child custody investigation may also be ordered any time an allegation of serious child abuse “is supported by substantial independent corroboration.” This means that an evaluation may be ordered any time an allegation of serious child abuse is backed up by substantial independent evidence that the abuse occurred.

A child custody evaluation may also be ordered whenever a judge needs information that bears on what may be in the best interest of the children, such as alleged parental substance abuse, extreme parenting practices, or major mental health issues. Sometimes, one party to a divorce or legal separation may make allegations against the other of these types of conduct. Other times, the judge may become concerned based on other evidence or testimony presented to him or her.

Child custody investigations generally conclude with a report from the investigator to the court. The law sets forth minimum requirements for investigations; however, family court judges have great discretion to order additional evaluation “when necessary to determine the safety needs of the child.”

To read more about what happens during a child custody investigation, please see our earlier blog here.

Child custody evaluations are often necessary to protect California children. In hotly contested child support matters, you need an attorney to fight for you and your child. 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.
Child Custody, Visitation

How Does a Temporary Move Out of the Family Home Affect Custody and Visitation Decisions?

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How Does a Temporary Move Out of the Family Home Affect Custody and Visitation Decisions
After a decision to divorce or separate is made, one parent sometimes moves out while the other parent stays in the family home with the children. We are often asked about the effect of this move on court decisions relating to custody and visitation.

Divorce and legal separation are difficult events for everyone involved, especially children. Children, particularly younger ones, often do not understand what is happening. Even older children may not understand the full implications of the end of an adult couple’s relationship. For these reasons, the guiding principle for California custody and visitation decisions is the “best interest” of the parties’ children.

California law does not allow a court to consider short absences of a parent from the family home in its custody and visitation decisions as long as the following three criteria are met:

  • The party showed an interest in maintaining custody or visitation;
  • The party either maintains or makes reasonable efforts to maintain regular contact with the child; and
  • The party shows no intention to abandon the child.

Even if these criteria are not met, a California judge will not consider a temporary absence or relocation from the family home if it is due to actual or threatened domestic violence. For example, if a husband has been physically abusive toward his wife and she moves out of the family home as a result, the court will not hold her absence from the home against her in its custody and visitation decisions.

These laws do not apply to a parent who has abandoned a child or to a parent who is excluded from the home by a court-issued protective or restraining order.

The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. 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.
Uncategorized

When Does a California Court Appoint a Child Guardian?

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When Does a California Court Appoint a Child Guardian

Child guardianships are established in California in both probate and juvenile dependency court proceedings. Guardianships are used to give someone the legal authority to tend to a child or to his or her property. The nature of the authority depends on the reason the guardianship is established and the court order.

Probate Guardianship

The first type of guardianship is a probate guardianship. A probate guardianship is set up when a child’s parents are not able to care for him or her. Here are some examples of reasons parents may not be able to take care of their child:

  • Serious physical or mental illness;
  • Military duty;
  • Substance addiction or inpatient rehabilitation;
  • Incarceration;
  • A history of child abuse; and
  • Death.

Probate guardianships may be over the child, the child’s property, or both.

Guardianships over the child that are established through the probate process do not terminate parental rights; in fact, the child’s parents may even receive visitation rights in a probate guardianship. However, the guardian receives all of the rights and responsibilities of a parent, including full legal and physical custody. Please see my earlier blog here for a detailed description of legal and physical custody.

A probate guardianship may give the guardian rights and responsibilities relating to a child’s property, also known as the child’s “estate.” This type of guardianship is usually set up when a child owns or inherits significant assets before he or she is 18 years old. The guardian’s role is to manage the child’s estate responsibly, with a very high degree of care. If the child has a responsible, living parent, the parent is usually appointed in this role.

Guardians established through the probate court must submit annual status reports to the court, and court volunteers visit the guardian and child periodically. In addition, a probate guardian over a child’s estate is required to submit regular accountings to the court regarding the child’s property.

Juvenile Dependency Guardianship

Guardianship may also be established through the juvenile dependency court when a child has been removed from his or her home due to child abuse or neglect or other dangerous conditions. This type of guardianship is only used as a last resort, when a damaged parent-child relationship cannot be repaired. Guardianships established through juvenile dependency court terminate parental rights and usually last until the child turns 18.

California laws direct judges to make rulings consistent with the best interest of children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including guardianships. Contact us today to learn how our attorneys can protect you and your children: (415) 293-8314.

 

 

Child Custody, Domestic Violence

How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

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How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

Nothing affects children like domestic violence. Recognizing this, California courts are empowered to deal harshly with the custody and visitation rights of those found to have committed domestic violence. Before a parent’s rights may be impacted, however, certain requirements must be met.

Domestic violence is defined to include causing or attempting to cause bodily injury or sexual assault, placing someone “in reasonable apprehension of imminent serious bodily injury to that person or another,” as well as “threatening, striking, harassing, destroying personal property or disturbing the peace of another.” Domestic violence is not limited to physical conduct but includes oral or written conduct that otherwise fits the definition of the law.

The first requirement of the law is that there must be a court finding of domestic violence in the last five years. This requirement can be met in two ways:

  • The person has been convicted of domestic violence or abuse, as defined in specific California laws; or
  • Any court has made a finding that the person committed domestic violence.
The requisite finding cannot be based solely on either a child custody evaluator’s conclusions or a Family Court Services staff member’s recommendation. Rather, the court must consider “any relevant, admissible evidence submitted by the parties” in making its finding.

After the first requirement is met, “there is a rebuttable presumption that an award of . . . custody [to that person] . . . is detrimental to the best interest of the child.” This means that the parent who committed domestic violence has an extra heavy burden before custody of any type may be awarded to him. The law directs that the court must consider several factors in determining whether this burden is met:

Whether the parent against whom the finding was met has showed that it is in the child’s best interest for him to receive some form of custody;

  • Whether the perpetrator completed any court-ordered batterer’s treatment program, alcohol or drug abuse counseling, or parenting class;
  • Whether the perpetrator has complied with the terms of his probation or parole, if applicable;
  • Whether the perpetrator’s conduct is governed by a protective or restraining order and, if so, whether he has complied with its terms; and
  • Whether the perpetrator has committed further acts of domestic violence.
The health and well-being of your children are of paramount importance to the State of California. If domestic violence is an issue in your family, 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.