7 Factors Judges Consider When Deciding Who Gets the Kids

7 Factors Judges Consider When Deciding Who Gets the Kids

Deciding who gets the kids in a child custody battle is no easy feat. Judges don’t simply toss a coin or render arbitrary decisions. In fact, California law requires judges to make decisions that are in the child’s best interests based on certain factors. Let’s look at some of the things family court judges consider before finalizing custody arrangements.

But, first, let’s look at the types of custody available:

  • Legal custody – A parent with legal custody of a child makes important decisions about their “health, education, and welfare.”
  • Physical custody – Children live with or spend more time with a parent who has physical custody.

Either type of custody can be joint (shared by both parents) or sole (held by one parent). For example, a couple could have joint legal custody while only one parent has physical custody. This means that the child might live with one parent most of the time, but both parents share in decision-making.

#1.  The Kid’s Age and Maturity Matter

Judges will note a child’s age before granting custody. Staying with one parent over another might make more sense at certain stages of a child’s growth.

In the past, something called the “tender years doctrine” applied, which meant that mothers were almost always awarded custody of very young children. Under California law, judges are not to consider gender when deciding who gets the kids, no matter how old they are.

#2.  Judges Consider the Children’s Health

Some children might have special needs or serious medical conditions. Judges generally consider which parent is best able to care for the child in situations like this. For example, a father might have physical custody because the mom travels extensively for her job.

#3.  Bonds with Each Parent Play a Part in Who Gets the Kids

Ideally, both parents will bond well with their children. Realistically, children might form a stronger relationship with one parent. If so, breaking that bond could be detrimental to the child or not in the child’s best interests. Judges might consider evidence that a child is closer to one parent before awarding custody.

#4.  Judges Consider Each Person’s Parenting Abilities

Parents often vary significantly in their ability to handle raising children. After all, it can be one of the most stressful (and also joyful) life experiences. Family court judges tasked with deciding custody might look for evidence that one parent is more suitable than the other.

#5.  Acts of Domestic Violence Necessarily Sway a Judge’s Decision

As mentioned above, California family court judges make decisions based on what is in the child’s best interests. When domestic violence is present, children are at risk even if they are not physically injured. In these situations, judges consider their options very seriously before deciding who gets the kids.

#6.  Alcohol and Substance Abuse Matter Also When Deciding Who Gets the Kids

Domestic violence often goes hand-in-hand with alcohol and substance abuse. Here, again, children are at risk when parents suffer from addictions. Getting help is essential, but judges have to consider the risk when assigning custody.

#7. Finally, Judges Consider the Child’s Ties to Home, School, and Community

Divorce is hard enough on children. But the risks of emotional damage become even more harmful when kids are forced to leave their friends, schools, extracurricular activities, and religious institutions. Family court judges consider these issues carefully, along with the others mentioned above, before making custody decisions.

About the Author

Judy Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. She is a passionate advocate for her clients and is known for her aggressive, “outside of the box” representation.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

QDRO Dividing Retirement Plans During a Divorce

QDRO: Dividing Retirement Plans During a Divorce

Property division is one of the most critical and contentious parts of a divorce. The parties and their attorneys must first identify all assets and debts, then categorize them as marital property or separate property. Some assets might even be a little bit marital and a little bit separate. Investment and retirement accounts can be particularly difficult for people to split up. However, a QDRO takes care of the actual process of dividing retirement plans.

What is a QDRO?

QDRO (pronounced “qua-dro” or “cue-dro”) stands for qualified domestic relations order. A judge will issue this type of court order or decree during a divorce when the married couple needs to split up one or more retirement accounts. Without a valid QDRO, administrators of retirement plans generally cannot release funds to the non-accountholder.

Here’s an example of how a QDRO might work. Joe has $100,000 in a retirement fund. His ex-wife Maggie is entitled to half of the money. During his divorce, the judge issued a QDRO requiring the administrator to release $50,000 to Maggie. She might roll over the funds to another account or take a lump sum payment.

What happens when each spouse has retirement plans?

There are other important considerations with a QDRO. For example, both couples might have retirement plans. Each spouse might be entitled to half of the other party’s plan in a basic property division barring any exceptions. However, instead of each party handing half to the other party, they might total the accounts then disburse money to the party with the smaller retirement account.

So, in our example above, Joe has $100,000 in an account. But now we see that Maggie also has an account that is worth $25,000. Together, they have $125,000, and each should receive $62,500. Since Maggie’s account is smaller than Joe’s, she might get a QDRO giving her the difference between the accounts, which is $37,500.

Tax issues can be another concern. The party receiving the funds might be taxed and potentially penalized if the amount received is not rolled over into another qualifying retirement plan.

How do you get a QDRO in a California divorce?

California Family Courts offer a form that can be used to request a QDRO. However, the form is long and contains legal jargon, most of it in fine print. Unless you fully understand the California Family Code and federal laws like the Employment Retirement Income Security Act of 1974 (ERISA), it’s best to hire an attorney to handle dividing retirement plans.

It would be best if you had the advice of an experienced California divorce attorney because QDROs are more complicated than they appear. Using the wrong form or omitting important information can lead to delays in receiving the funds you deserve. In fact, people often overlook retirement benefits when dividing property during a divorce. Your lawyer can help you locate retirement plans and submit a QDRO if appropriate.

Talk with Us About Using a QDRO to Divide Retirement Plans

It’s absolutely critical to understand this about a QDRO – it’s not given to you automatically. You and your attorney will have to request it.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Why Is a Divorce with Children Usually More Expensive

Why Is a Divorce with Children Usually More Expensive?

Divorce can be an expensive but necessary process. But the average divorce with children invariably costs more than the average divorce of a childless couple. In this article, we will take a closer look at why the costs increase when kids are involved.

Some Issues in a Divorce with Children Can Be Challenging to Resolve

Decisions surrounding child custody and child support are often hotly contested. Demands might be made based on emotions and not reality, as parents use children as pawns against each other. Unfortunately, fighting over children is not likely to end well for anyone.

Divorce typically involves negotiation. A divorce with children usually requires more negotiation than one without. Compromising might be necessary, as long as the compromise is safe for the kids. Refusing to yield even a little prevents the parties from finalizing their divorce. It also usually increases legal fees.

In some cases, the parties will use a family law mediator to help negotiate resolutions. This step also increases the cost of a divorce with children but could remove roadblocks that prevent the parents from moving on.

When Couples Can’t Agree, Trials Often Follow

And trials are expensive. Both parties will incur additional legal fees because their case now could include additional discovery, hearings, and depositions. They might need to hire expert witnesses to provide testimony at trials. Inevitably, legal fees generally increase as attorneys spend days and weeks preparing for trial.

To avoid trial, couples can work closely with their attorneys to prepare a parenting plan. In fact, family court judges will not finalize a divorce with children without one. The parenting plan is also called a custody and visitation agreement or “time-share plan.” In a divorce with children, it’s critical for parents to work out this agreement as amicably as possible to avoid collateral damage to themselves and their children.

You Need Good Legal Representation

As mentioned above, a contested divorce with children requires a great deal more work from your attorney. This is especially true if your case proceeds to trial. Adding an experienced California divorce attorney to your team might be expensive. However, it’s crucial to work with an attorney who can protect your rights and your children’s.

Trust Us to Handle Your Divorce with Children

Contested divorces will always be more expensive to resolve than uncontested ones. Talk to an experienced California divorce attorney today about your divorce with children. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Does California Family Law Favor Women

Does California Family Law Favor Women?

Sometimes our fears are unfounded, based solely on gossip or a story told by a friend-of-a-friend. For example, men often fear divorce because they feel that California family law and courts favor women on important issues like child custody, child support, spousal support, and property division. Feeling nervous about an impending divorce is normal and justified. It is a huge, life-altering step. However, it’s critical to understand that California family laws are not biased in favor of either gender.

Straight from California Family Law

Laws relating to divorce are contained in the California Family Code. Courts are bound by these laws, as well as the parties and their attorneys.

Gender is mentioned in the Family Code. In a chapter relating to custody, the law states:

“The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).” (emphasis added)

Judges are strictly prohibited from using gender to determine custody for children. And this law just relates to one aspect of divorce. Gender also should not be considered in other issues like child support, spousal support, and property division.

So, if California family law does not favor women, why do so many people feel it does?

Custody, Visitation, and Parental Roles

The prevailing myth is that courts always give custody and support to the wife. In fact, most parents can work out custody and visitation in their parenting plan. The parties and their attorneys do use California family law to prepare their plan. However, some of the decisions might be based on how parenting roles played out during the marriage, but not solely on gender.

Let’s consider two hypothetical examples. 

Sophie and Jon have two children. During their marriage, Sophie worked full-time while Jon was a stay-at-home dad. During custody and visitation discussions, the couple might decide to retain these roles. If they cannot agree on custody, a family court judge will consider their roles and decide what’s best for the children.

In the second example, Max has a stressful job that requires almost constant travel. His wife, Emma, works full time also but handles all of the childrearing. If Max tries to get custody of his children, a judge might rule against him because of his job. But the decision will be based on what’s best for the kids, not on Max’s gender.

California Family Law and Support

The same ideas generally apply to child support and spousal support. Courts will consider many factors before ordering one party to pay the other. However, gender is not one of those factors.

If we look at our couples from the previous examples, Sophie might be ordered to pay both child support and spousal support to Jon, in part because he has been out of the workforce caring for the children. Even though Max and Emma both work, the courts might order Max to pay Emma’s child support and spousal support based on his income and childcare arrangements.

Property Division in a Community Property State

Under California family law, marital property and debts are split 50-50 between the spouses. Both parties are equal, except in certain circumstances. Gender certainly should not be a deciding factor here.

Talk to a California Family Law Attorney About Your Divorcee

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.