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

May 23, 2016 Judy L. Burger Leave a comment

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.

Uncategorized

Parental Access to Child Medical Records

May 16, 2016 Judy L. Burger Leave a comment

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.

California Divorce, Debt

What Is the Effect of Substance Abuse in California Divorces?

May 9, 2016 Judy L. Burger Leave a comment

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.

Child Custody

What Happens at a Mandatory Child Custody Mediation?

May 2, 2016 Judy L. Burger Leave a comment

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.

Uncategorized

California Laws on Child Abduction

April 25, 2016 Judy L. Burger Leave a comment

Taking or keeping a child away from his or her legal custodian is a crime that carries substantial penalties. Even a child’s own parent can be convicted of child abduction under California law.

The offense of child abduction is committed when all of the elements below are present:

The person “takes, entices away, keeps, withholds, or conceals” the child;
The person acts maliciously; and
The person has the intent to detain or conceal the child from a lawful custodian.

In addition, the person who takes the child either has to have no right to custody or must take the child with the intent to deprive a legal custodian of custody or visitation.

By law, it does not matter whether the child resists or objects to the offending party’s actions.

If all the elements are present, there is only one true defense to a charge of child abduction. This defense may apply if the person has a “right of custody” and takes the child “with a good faith and reasonable belief” that the child “will suffer immediate bodily injury or emotional harm” if left where she is. However, even when this limited defense applies, the person taking the child must report certain information to the county district attorney and must initiate a custody proceeding within a specified period of time.

The following are not defenses to child abduction:

Taking or keeping the child because the other parent failed to pay child support; or
Obtaining a custody order after the child has been abducted.

The punishment for child abduction is stiff: up to four years in prison and a $10,000 fine. The judge considers several factors in determining the proper penalty, including the following:

The child’s age and the length of the abduction;
Any physical harm or threat of physical harm to the child during the abduction;
Whether the child was removed from the country;
Whether the child was returned to the lawful custodian;
Whether the child’s appearance was substantially altered during the abduction; and
Whether the child was returned unharmed and before any arrest was made.

A judge may also impose restitution, either to the victim or to a state prosecuting agency. It should be noted that the criminal offense of child abduction is different than the civil offense of false imprisonment. This means that in addition to prison time and a fine, someone who abducts a child in California could be sued for money damages in a lawsuit.

Child abduction is a serious crime. If you are concerned that your child has been abducted, contact the police immediately. If you are involved in a divorce or separation proceeding, you’ll also need an aggressive, experienced attorney to protect you and your child. For help, contact The Law Offices of Judy L. Burger at (415) 259-6636.

Child Custody

Child Abandonment: How Does It Affect Custody Determinations?

April 18, 2016 Judy L. Burger Leave a comment

By law, both parents have rights and responsibilities relating to their children. Parents are required to support their children, including providing adequate food, shelter, and medical services. Parents also have the right to parent their children. This is an important right that courts take very seriously. While child abandonment may affect custody determinations, courts are very proactive in protecting parental rights.

Under the California Family Code, three circumstances may result in a finding of child abandonment, if they are proven by clear and convincing evidence:

Both parents left the child without any provision for identification;
One or both parents left the child with another person for at least six months without providing any support and without communication; or
One parent left the child with the other parent for at least one year without providing any support and without communication.

In the second and third circumstances, the court must find that the parent acted with the intent to abandon the child. Failing to provide identification of the child, to support the child, or to communicate with the child is considered presumptive evidence of a parent’s intent to abandon the child. Token efforts of support and communication may be disregarded by the court in making its abandonment determination.

Abandonment may be considered as a factor in determining custody and visitation except in very limited circumstances. The first exception is for a short absence or relocation during which the parent demonstrates no intent to abandon the child and during which the parent makes reasonable efforts toward regular contact with the child. The second exception is when a parent is absent or relocates because the other parent actually committed or threatened to commit domestic or family violence.

It should be noted that the effect of abandonment on child custody is separate from the criminal offense of child abandonment under California law. Before a parent may be found guilty of child neglect or abandonment, criminal charges must be brought and very specific findings must be made in a court of law.

Custody and visitation issues are at the heart of many relationship endings. If child abandonment is a potential issue in your divorce or separation, you need an attorney to advocate for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in child custody and child support matters. Call today to learn how our attorneys can protect you and your children: (415) 293-8314.

Child Custody

What Is an Independent Child Custody Evaluation?

April 11, 2016 Judy L. Burger Leave a comment

California judges have the right to order child custody evaluations any time they believe doing so would be in the “best interest of the child.” Often, judges order evaluations when the parties cannot agree about child custody. This blog will discuss why evaluations are ordered, who conducts evaluations, and what evaluators do.

Why Are Child Custody Evaluations Ordered?

Whenever children are involved in a divorce or separation, emotions run incredibly high. Sometimes, the parents are able to set their emotions aside and make custody and visitation decisions in the best interest of their children. However, it can be very stressful to deal with child-related decisions during this difficult time.

Child custody evaluations are always ordered if the judge finds that there are serious allegations of child abuse. They may also be ordered when any of the following concerns are present:

Mental health;
Substance abuse;
Parenting in a way that may negatively affect the parties’ child; and
A possible parent move or relocation.

Who Conducts Child Custody Evaluations?

By law, only a qualified evaluator may conduct court-ordered custody investigations. People licensed in the following professions may serve as child custody evaluators:

Clinical social workers;
Psychologists;
Psychiatrists; and
Marriage and family therapists.

Evaluators are not eligible unless they are included on an approved panel or approved by the judge as meeting the requisite qualifications.

What Does the Evaluator Do?

The evaluator’s job is to pull together evidence the judge will use to make custody and visitation decisions and to make recommendations based on that evidence. To do this, the evaluator considers the following:

Written documents, including medical records, as necessary, and any from social services or law enforcement agencies;
His or her observations of family members;
The results of his or her interviews with the parents, children, and other witnesses, as necessary; and
Psychological assessments.

The evaluator packages this information into a detailed written report for the judge. The judge then uses the information to determine what custody and visitation arrangements are in the best interest of the child.

Child custody evaluations can be very stressful in a time that is already laden with emotions. As you might imagine, having an experienced family lawyer by your side can help ease that stress and make a difference in the outcome of custody and visitation proceedings. For something this important, you want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact The Law Offices of Judy L. Burger at (415) 259-6636 to learn more.

Annulment, California Divorce, Child Custody, Domestic Violence

Best Interest of the Children: What Does It Mean for California Families?

April 4, 2016 Judy L. Burger Leave a comment

California courts often cite to the “best interest of the children” standard when making rulings and issuing decisions on family law matters. Where does this language come from, and what does it mean for you?

California laws, in many places, refer to the “best interest of the children” or “best interest of the child.” The core statute on what this means is California Family Code § 3011, which is a general provision of law relating to custody.

Section 3011 lists several factors that courts must consider when determining what is in the best interest of children:

The child’s “health, safety, and welfare”;
Any history of abuse against a child, the other parent, or a parent’s significant other;
The nature and amount of the child’s contact with both parents; and
Either parent’s use of illegal, controlled substances, or habitual use of alcohol or prescribed controlled substances.

The “best interest of the child” standard applies to many types of proceedings:

Divorce;
Annulment;
Legal separation;
Actions for exclusive custody;
Custody or visitation actions under the Domestic Violence Prevention Act;
Custody or visitation actions under the Uniform Parentage Act; and
Custody or visitation actions under brought by a California district attorney.

The “best interest of the child” standard is also at play in related proceedings, such as child custody evaluations and parenting plans.

The California Legislature’s widespread application of the “the best interest of the child” standard shows its commitment to the health and well-being of 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.

California Divorce, Domestic Violence

How Do California Courts Decide Mutual Restraining Orders?

March 28, 2016 Judy L. Burger Leave a comment

Troubled marriages or domestic relationships are sometimes plagued with violence. Accordingly, California’s Domestic Violence Protection Act provides authority for courts to issue restraining orders in such situations. Normally, one party to the relationship has been threatened or attacked and petitions a court to issue an order instructing the aggressor not to have contact with her. In rare cases, mutual restraining orders—those that direct both parties to stay away from the other—are issued.

Under the DVPA, a judge may issue a restraining order based on a written request from a party, but only after notice and an opportunity to respond has been given to the party to be restrained. In the case of a mutual restraining order, it is necessary that both parties make a written request for the other to be restrained. This point was recently emphasized by the Second District Court of Appeal in a divorce proceeding.

In the case, the wife filed a request for a restraining order. The husband submitted documentation in his response showing that the wife was currently restrained from contact with him by a criminal restraining order and that the wife had pleaded guilty to a charge of assault against him.

The court, of its own volition, issued a mutual restraining order prohibiting each party from having contact with the other. As its basis for restraining the wife as well as the husband, the court pointed to the criminal restraining order and found that the wife had already been restrained. As such, the court noted that the wife had already been deemed guilty of domestic violence beyond a reasonable doubt. Therefore, the court felt it had no need to make any findings regarding the need for an order restraining her.

The appeal court reversed the lower court’s order, however, holding that a restraining order could not be issued without a written request by the party to be protected. In this case, the husband had not made such a request. Rather, he had included documentation in his response to his wife’s request showing that she was currently under restraint.

The appeal court found that the regulatory scheme of the DVPA and its legislative history were clear that a party had to make an actual request for protection. The court also pointed out that the issuance of an order without proper notice to the party to be restrained, as well as an opportunity to respond, violated constitutional standards.

As you can see, the manner in which legal matters are handled can materially affect the outcome. If you’re involved in a divorce or separation, you should work with 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.

California Divorce

Who Gets to Keep Pets in a California Divorce or Separation?

March 21, 2016 Judy L. Burger Leave a comment

In some divorces or legal separations, one of the foremost concerns is what will happen to family pets. Many of us treat pets like family. We may even ask for “custody” of them. But the California courts treat pets as personal property, not like children. Therefore, no one can obtain “custody” of a family pet.

Perhaps the clearest way to deal with pet “custody” issues is to avoid them in the first place. Before you are married, include post-marital pet issues in a valid prenuptial agreement. In such an agreement, you can deal with how you want your personal property to be split; this can include the treatment of pets.

If you didn’t have the foresight to include pets in a prenuptial agreement, all is not lost. In most circumstances, it is best to cooperate with your soon-to-be-ex. If your pet is important to you, you may wish to compromise on other issues in order to obtain possession of your animal. The two of you may even agree to an informal arrangement for where the pet will live, or even for visitation.

Under normal circumstances, it is best to agree on the arrangement for the family pet. However, if the parties cannot agree, the judge will decide who receives the pet. Here are some likely considerations:

The connections of the pet with the parties and the children;
The pet’s primary caretaker; and
Acts or threats of violence against the pet, the other party, or a minor child.

This last factor can be particularly important because California has a statute designed to protect pets. California Family Code § 6320, which became effective in 2014, allows courts to take actions to protect personal property from destruction. If a party can show “good cause,” a court can do two things: (1) grant the exclusive “care, possession, or control” of a pet to the appropriate party; and (2) order a party “to stay away from the animal and forbid” the taking or disposal of the animal.

At the Law Offices of Judy L. Burger, we understand how important family pets are not only to a couple but to their children. Pets can provide stability and love in a time of instability. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.