Different Types of Child Visitation in California

March 14, 2016 Judy L. Burger Leave a comment

Divorces and separations are replete with hot-button issues. Perhaps no issues are more frequently contested, however, than child custody and child visitation. In a prior blog, I discussed the different types and aspects of child custody. This blog will focus on visitation, which is typically granted to the parent who has the children less than half of the time.

A visitation order spells out how the child’s time will be managed. For example, a visitation order might address where a child would spend birthdays, Mother’s Day, Father’s Day, major holidays, and summer break.

The California Legislature has declared that the primary concern of courts in making custody and visitation decisions is the “health, safety, and welfare of children.” However, an additional public policy of the state is “assur[ing] that children have frequent and continuing contact with both parents.” The law specifically “encourage[s] parents to share the rights and responsibilities of child rearing” to meet this second goal, unless regular contact is not in the best interest of the children. Custody decisions are not made on the basis of a parent’s marital status, lifestyle, religious beliefs, or sexual orientation.

There are four types of visitation orders in California: (1) reasonable visitation; (2) scheduled visitation; (3) supervised visitation; and (4) no visitation.

A reasonable visitation order leaves decisions about how the parents will share the children’s time largely to the parents. These orders provide the parents with the ultimate flexibility; however, if the parents do not get along or if future disagreements may occur, these are not a good choice for the family.

Scheduled visitation provides clear direction to the parents about how the children’s time will be spent. These orders are ideal for parents who may not get along or communicate well because they provide clear expectations. If you’ve ever heard someone say that it was “their weekend” with their children, the court probably ordered scheduled visitation in their divorce. These orders dictate everything from birthdays and major holidays down to evenings and weekends.

Courts use supervised visitation orders when necessary to protect the health, safety, and welfare of children. In supervised visitation, the parent still gets to spend time with the children but only under the supervision and presence of another adult or, sometimes, a professional agency. Supervised visitation may be used in situations like the following:

Allegations or a history of abuse, neglect, or domestic violence;
A nonexistent or weakened parent-child relationship;
Parental mental illness or substance abuse.

In rare cases, a court will order no visitation for a parent. This is only done when visits would not be in the best interest of the children, such as when a parent refuses to refrain from alcohol or drugs while visiting with the child.

Remember that child support is a matter separate from child visitation. That means that a parent cannot deny visitation to another for nonpayment of support; likewise, a parent cannot deny payment because the other refused visitation.

An experienced family lawyer can ensure that you understand the issues that might impact child visitation and help you present them in the best light possible to a judge. The attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California and will represent you aggressively. Please contact us today at (415) 259-6636 to learn more.

Uncategorized

California’s New Law Allows Petitions to Seize a Family Member’s Guns

March 7, 2016 Judy L. Burger Leave a comment

Effective January 1, 2016, a new law went into effect that allows family members to ask a court to seize their family member’s guns temporarily. The bill was introduced in the California Legislature in 2014 after the Isla Vista massacre near Santa Barbara. Before six people tragically lost their lives, the shooter’s mother had noticed that he was increasingly agitated, and she had heard him make threats of violence.

The law places strict limits on judges who are presented with petitions to seize guns.

Temporary Emergency Gun Violence Restraining Orders

The new law authorizes a judge to issue a temporary order to prevent the possession of guns for 21 days when a petition is presented by an immediate family member or a law enforcement officer and the judge finds the following:

There is reasonable cause to believe that the person presents an “immediate and present danger” of personal injury to another person or himself;
By having, owning, purchasing, possessing, or receiving a firearm; and
The order is needed to prevent personal injury to a specified person.

If the dangerous person can reasonably be found, a law enforcement officer must serve a copy of the order on him.

Ex Parte Gun Violence Restraining Orders

Probably the most controversial aspect of the new law is the power of a judge, in very narrow circumstances, to issue an order restraining a person from possessing a gun or ammunition without providing the person advance notice. This is known as an “ex parte” order. Before an ex parte order may be issued, the following criteria must be met:

There is a “substantial likelihood” that the person poses a “significant danger of harm” to another person or himself;
In the near future;
By having, owning, purchasing, possessing, or receiving a firearm; and
The order is needed to prevent personal injury to a specified person.

When these criteria are met, the judge may issue an order preventing the dangerous person from having firearms or ammunition in his custody or control. Ex parte orders have a limited shelf life: They cannot last longer than 21 days, and the judge must order a hearing within that 21-day period. At the hearing, the judge determines whether a one-year restraining order is warranted. Again, the person must be served with a copy of the order if he may reasonably be found.

One-Year Gun Violence Restraining Order

A longer term restraining order, up to one year, may be issued after the person receives notice and an opportunity to attend a hearing. Before a one-year order may be entered, the following must be shown by clear and convincing evidence:

The person “poses a significant danger of personal injury to himself” or another;
By having a firearm or ammunition;
A restraining order is needed to prevent personal injury to the person or another; and
Either less restrictive alternatives have been ineffective or they would be inappropriate.

The health and well-being of you and your children are important to the State of California. If you are concerned about your safety, do not hesitate. Call the attorneys at The Law Offices of Judy L. Burger today at (415) 293-8314. We have extensive experience in family law matters, including those involving family member violence and threats of violence.

California Divorce

Ashley Madison Data Breach Could Impact Divorces

February 29, 2016 Judy L. Burger Leave a comment

Media stories on the Ashley Madison hack have spotlighted data security and privacy issues. But there is much more at stake: families. Some have speculated that the release of the Ashley Madison data will lead to increased marital problems and divorce rates.

Before last summer, many people would have had no idea that Ashley Madison was anything other than a person’s name. Now, people nationwide recognize Ashley Madison as a hook-up site for those who are married.

In case you missed it, the personal and private data of over 33 million of Ashley Madison’s customers was recently compromised. The hackers scored traditional personally identifiable information, such as names, street names, passwords, partial credit card debt, and telephone numbers. However, they also accessed private information of a very intimate nature, such as sexual fantasies and message history.

Much of this information was posted online for the world to see. Suddenly, friends, spouses, and others knew not only who was a customer of Ashley Madison but much, much more.

What are the implications of this giant data breach in family law?

Very early on, some divorce attorneys predicted a spike in the divorce rate. Certainly, the ability to confirm infidelity could cause spouses who previously weren’t sure about divorcing to file their papers.

But the implications of this data breach could be wider than originally thought.

Suddenly, one partner is armed with what would appear to be undeniable evidence of infidelity, and the other partner is likely to be riddled with guilt. This imbalance could cause the former to stake out a position and refuse to budge and the latter to simply fold. Is it possible that these feelings could affect the outcome of divorce proceedings?

Any issue that is wholly or partly in the parties’ control could be easily affected. For example, the parties have a great deal of influence on issues such as personal property division and visitation plans. The guilty partner might feel obligated to cave in, and often, the judge will approve the parties’ plan as long as it is reasonable. Likewise, the imbalance in perceived power could greatly affect settlement and, because feelings are hurt, drive up attorney fees in protracted litigation.

Some issues, however, will not be impacted. For example, California law explicitly spells out how property division will take place. Barring proof of money spent by the guilty partner on affairs, which might be considered marital waste, property division will not be affected. Custody of the parties’ children also will not be affected, as the core focus in custody determinations is the “best interest of the children” and the factors considered by courts are spelled out by law.

If you’re involved in a divorce and don’t know where to turn, you should work with an experienced, compassionate attorney who can help guide you through California law. Attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California family law, including cases involving infidelity. Please contact us today at (415) 259-6636 to learn more.

Child Custody

False Allegations of Child Abuse in California Custody Battles

February 22, 2016 Judy L. Burger Leave a comment

The California Legislature, by law, has said that the primary concern in child custody decisions is the “best interest of the children” It is the policy of the State of California that the “health, safety, and welfare of children” are of the utmost importance.

It is not surprising, then, that false allegations of child abuse may be punished in custody battles in California courts.

The law gives judges the authority to take temporary steps deemed necessary to protect a child who is the target of alleged child abuse, pending the outcome of an investigation and report to the court.

When the investigation is complete, the court must make a determination about whether the child abuse allegations were true or false. If the court finds that the allegations were true, the abusing party has an uphill battle to obtain custody of any kind. That is because California law creates a presumption that a party who meets the following criteria should not receive custody:

The parent committed domestic violence;
Against the other parent, the child, or the child’s siblings;
In the last five years.

But what if the allegations were false?

California law provides stiff penalties for parents who knowingly makes false child abuse allegations. First, the party may be required to pay sanctions. The sanctions can include all costs incurred by the party who had to defend the false allegations, including attorney’s fees.

Additionally, the court may limit custody or visitation of the parent who falsely made the allegations under limited circumstances:

The parent made a report of child sexual abuse;
That he knew was false when he made it;
With the intent to interfere with the other parent’s contact with the child; and
A limitation in custody is necessary to protect the child’s health, safety, and welfare.

All of this must be supported by substantial evidence, and the court must consider California’s policy of frequent and continuing contact of children with both of their parents.

Limiting custody may include reduced visitation or supervised visitation.

As the law regarding false child abuse allegations makes clear, 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.

Child Custody

Types of California Custody Orders

February 15, 2016 Judy L. Burger Leave a comment

In California, as in most states, custody, visitation, and child support issues are intertwined. This blog will discuss the basics of custody law in California. You may read more about child support at our blog here, and visitation will be explained in more detail in a later blog.

California law recognizes two types of custody: physical and legal. Courts make decisions about these issues based on the best interests of the child. Custody is not granted based on the parents’ ages, lifestyles, religious beliefs, or sexual orientation. Also, in California, there is no presumption that custody of young child should be awarded to the mother. Indeed, by law, the sex of the parents may not be considered in making custody decisions. See Cal. Fam. Code § 3040(a)(1). California courts presume that the child’s best interest is supported by joint custody arrangements. See Cal. Fam. Code § 3080.

When most people hear the term “custody,” they usually think of where a child lives. This is called “physical custody.” Physical custody may be held jointly—by both parents—or by one parent, known as “sole” physical custody.

With joint custody, each parent has a “significant period of physical custody.” While a child’s time cannot usually be split in exact halves, the child in a joint custody arrangement has “frequent and continuing contact with both parents.” Cal. Fam. Code § 3004.

On the other hand, when one parent receives sole physical custody of a child, the child lives with and is under the supervision of that parent, and the other parent is given visitation rights.

The second type of custody is called “legal custody.” This term refers to the right and responsibility of parents to make important decisions for their children. Legal custody may be awarded jointly to both parents or to only one parent.

If the parents have joint legal custody, usually both parents must agree on issues related to the health, education, and welfare of the child. This includes decisions about important aspects of the child’s life, such as the following:

Religious decisions, such as whether and where a child will go to church;
Medical and dental decisions, such as whether to get braces or undergo psychotherapy; and
What school the child(ren) will attend.

When legal custody is given to one parent, it is called “sole legal custody.” If a parent has sole legal custody, that parent has the exclusive right and responsibility to make these decisions for the child.

Often, parents can come to a mutually agreeable decision about child custody. When this occurs, it is certainly better for the child. However, if the parents cannot agree, a judge will make these decisions for them and memorialize them in an order that either parent can later enforce.

Custody issues can be among the most contested between parents. As you might imagine, how these matters are presented to a court can make a significant difference in the support order. 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.

California Divorce, Child Custody, Child Support

How Is Paternity Established and Why Does It Matter?

February 8, 2016 Judy L. Burger Leave a comment

Establishing paternity—the father of a child—is increasingly necessary in today’s non-traditional family structures. People who have not been touched by this issue might be surprised to know that it is not simply a matter of DNA testing.

When a child is born to a married couple who reside together, the law presumes that the husband is the father. More and more often, however, children are born to couples who are not married. When this happens, a determination must be made as to the father of the child.

Medical care providers are required to provide information to the mother of the child regarding a “voluntary declaration of paternity.” If the mother and the father sign a voluntary declaration, the father will be listed on the birth certificate and will have paternal rights and responsibilities under state law. There is no test required to prove that the father is biologically related to the child.

When no one steps forward to acknowledge paternity, a superior court can make the determination. This typically happens when the biological father does not know of his parentage or wants to avoid involvement with the child. A paternity action can be initiated in court by 1) the child’s mother, 2) the man claiming or denying paternity, 3) a child support agency, or 4) an adoption agency. In this situation, DNA testing is normally used to resolve the conflict.

The reasons for establishing paternity are several. Foremost is the need for financial support for the child. It is also in the State of California’s interest to see that both parents support their child. Otherwise, public assistance may be necessary to support the child. Appropriately, and as noted above, the state child support agency can therefore bring an action to establish paternity.

Another reason for establishing the identity of the father is for health care purposes. Eligibility for health insurance is an important benefit for children. A court can order health care coverage as appropriate once paternity is established. Genetic health information is also important for the child’s wellbeing throughout his life. Many health care decisions are impacted by genetic predispositions inherited from one’s parents.

The emotional and social development of a child can also be positively affected by a child having a father in his life. Even though the father may not live in the home, appropriate visitation arrangements can be made that will support the parent and child relationship. Even if the relationship is minimal, children are better off emotionally and socially knowing the identity of their fathers.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including paternity matters. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

California Divorce

How Divorce Proceedings Work in California

February 1, 2016 Judy L. Burger Leave a comment

Like most states, California provides for divorce on a “no fault” basis. This means that there is no need for a demonstration as to whom or what has caused a marriage to fail. Instead, a spouse initiating a divorce must only cite “irreconcilable differences.”

The beginning point for a divorce is when one party files a petition and a summons with the Superior Court in the county in which she resides. After the filing of these forms, the petitioner arranges for a copy of the forms to be served on her spouse. Service of the forms must be made by someone other than the petitioner who is at least 18 years of age, and there is a specific form to be completed to show that the forms were personally handed to the receiving spouse, who becomes known as the “respondent.”

The respondent has 30 days to file a response with the court and to deliver a copy to the petitioner in the same manner as the petition was provided to him. After the response is filed, the petitioner and respondent complete financial forms that document the marital assets and debts so that an equitable property division may be determined by the court. For more information about property division in California, see my earlier blog here.

Marital assets and debts are those that were accumulated during the period of the marriage. They do not include any accrued by either spouse before marriage or after the date of separation. For information about the law’s handling of separate and apart, see my blog here. Marital assets also do not include anything that was inherited individually by either party, even during the marriage.

Sometimes, the parties can work amicably to decide how their assets and debts can be divided. In this case, a proposed agreement will be presented to the court and will be made part of the final divorce decree. If no agreement is achieved, the parties will attend a mandatory settlement conference. Any issues that remain unresolved at the settlement conference will be brought before a judge, who will make the final determination of the distribution.

Spousal support, sometimes referred to as “alimony,” may be considered and awarded by the court. Many factors are considered by the court in awarding spousal support, such as the length of the marriage or partnership, the marital standard of living, and each party’s income earning capacity and needs. For a complete listing of the factors considered by California courts in awarding spousal support, see my earlier blog here. If the parties come to an agreement on spousal support, the court will normally accept that and incorporate it in the decree.

When the parties have minor or dependent children, child support and child custody must also determined. As with the other matters, an agreement between the parties will be accepted by the court. For a complete discussion about how child support is determined in California, see my blog here.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including the dissolution of marriages and domestic partnerships. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

California Divorce

How Are Appraisers Used in California Divorce Proceedings?

January 25, 2016 Judy L. Burger Leave a comment

In any divorce, the value of the marital estate must be established before the parties can be allocated their rightful share. The value many assets is obvious, but that is not the case for real estate. This type of property must be assigned a value. Most often, an appraiser will be hired to perform a formal litigation and real estate appraisal.

Real estate in a divorce usually is the family home, but it may also include vacation homes or business property. Business property is sometimes appraised within the context of the business itself being valued. See my previous blogs here regarding business valuations in divorce proceedings.

The parties to a divorce may retain their own appraisers or jointly select one. If the parties ultimately do not agree on a figure as suggested by the appraisal(s), the court will hear testimony and determine the fair market value. The appraisal of property can be pretty straightforward much of the time, but it can also become somewhat complicated and, at times, subjective.

Most appraisals are based on the sales of comparable properties in the geographic area. An average sale price is normally the key indicator, but any special or unique features of a home may increase or decrease the value assigned by a particular appraiser. For example, a detached garage converted to a workshop with special wiring for power tools might cause an appraiser to add to the average sale price. On the other hand, a backyard greenhouse might be seen as a specialty item that clutters the property and cost money to have removed.

It is also important to know that the assessed value of the property by county or municipal governments is researched by the appraiser, but these values usually have no real effect on fair market value. The assessed values are not based on professional appraisals and are also sometimes affected by laws governing the assessment of real property.

In selecting an appraiser, first make sure she is licensed by the state. Second, it is important to find someone who is knowledgeable of the local market and of the type of property being appraised. If there is business property, make sure the appraiser has experience or even specializes in that area. Similarly, if there is vacation property, make sure you hire someone in that market. An appraiser in San Francisco won’t know the business of vacation homes in Vail, Colorado.

Judy L. Burger’s experience as an aggressive family lawyer is paired with an extensive business background, an invaluable combination in contested divorce and separation proceedings. If you need the assistance of a lawyer who is not afraid to fight in court and who understands complicated financial issues, call her today at (415) 293-8314 or visit her online.

California Divorce

Can I Recover Attorney Fees in My California Divorce?

January 18, 2016 Judy L. Burger Leave a comment

The payment of attorney’s fees in a divorce proceeding is not always a simple matter. You might think that each party hires a lawyer and dives into the process. California Family Code § 2030, however, requires the family court to ensure that each party has access to legal representation.

In that regard, the court may award attorney’s fees to be paid by one party to the other or her attorney. This happens when an income and needs assessment indicates a disparity in the parties’ access to funds.

An award may be in any amount deemed reasonably necessary to defend or maintain the proceeding during its pendency. The court’s authority to make an award is tempered by the ability of one party to pay the fees of the other. If a party is unrepresented or attempting self-representation, the court may order the other party to pay a reasonable amount to permit the unrepresented party to hire a lawyer before proceedings start.

At all times, the court is required by California Family Code § 2032 to ensure that awards of attorney’s fees are just and reasonable given the relative circumstances of the respective parties. To make such a determination, the court must take into account the need for the award, to the extent that it will allow the parties to adequately present their cases. Awards may be made from any asset of the parties, whether community or separate.

Pursuant to California Family Code § 271, attorney’s fees may also be awarded when one party or her attorney acts in a way that inhibits the progression of the case. The Code states as the policy of the law “to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Such actions may include the refusal to communicate as necessary to advance the case, the filing of frivolous motions, or similar behavior. Awards under this section of the Code are restricted by a party’s ability to pay, and they may only be awarded after notice and opportunity to be heard. Awards of this nature may be paid only from the separate property of the sanctioned party, including her share of community assets.

As you might imagine, the financial positions of the parties to a divorce can be complex and must be accurately portrayed to a court. Judy L. Burger has substantial experience in California family courts, and she also has a business background that allows her to effectively analyze and present financial information. Please contact her at (415) 259-6636 or visit her website to learn more.

Child Custody, Visitation

Child Preferences Regarding Custody and Visitation

January 11, 2016 Judy L. Burger Leave a comment

Child custody in divorce cases can sometimes be hotly contested. Traditionally, courts have made decisions based on the information presented by the parties and their lawyers. The wishes of the children were either not expressed or expressed only through the parents. Since 2012, however, children are permitted to testify regarding custody and visitation arrangements if they so wish.

California Family Code § 3042 provides that if a child is of “sufficient age and capacity to reason,” her wishes will be given due weight. The law makes a distinction between children less than 14 years of age and those 14 or over. If 14 or older, the court is required to permit testimony if the child wishes unless it determines that it is not in the best interest of the child to allow the testimony. Children under 14 are not prevented from testifying, but the court must find both that the child has the capacity to reason and that the opportunity to testify is in her best interest.

Some parents may be concerned about the opportunity for their children to weigh in on the custody and visitation arrangements of their divorce. The court, however, has both guidelines for hearing from a child and discretion in applying those guidelines.

California Rules of Court 5.250 provides instruction for the court for: 1) determining whether the child wishes to address the court, 2) determining whether addressing the court is in the child’s best interest, and 3) receiving the child’s testimony and other input.

The parties to a divorce or their counsel may inform the court of a child’s desire to address the court. In addition, the following persons have a duty to inform the court of a child’s desire to testify:

Counsel appointed to represent the child;
A child custody evaluator;
A child custody investigator; and
A child custody recommending counselor.

To determine whether it is in the child’s best interest to testify, the court must consider the following factors:

Whether the child is of sufficient age and capacity to reason;
Whether the child is of sufficient age and capacity to understand the nature of the testimony;
Whether the child is at risk emotionally if permitted or denied the opportunity to address the court;
Whether the child may benefit from addressing the court;
Whether the child’s anticipated testimony will be relevant to the court’s decisionmaking; and
Whether there are any other factors weighing for or against the child addressing the court.

The court has wide discretion in facilitating the child’s testimony. It can occur in open court as a regular witness, or the courtroom may be closed to the public. It might also be conducted in the judge’s chambers with or without the parties and counsel present. The judge is also empowered to reserve to himself the posing of questions on behalf of the parties. The purpose of these guidelines and the wide discretion granted is to ensure the comfort of the child and, thus, the value of the testimony proffered.

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.