Will a California Judge Listen to My Child’s Preferences About Custody?
Child Custody, Visitation

Will a California Judge Listen to My Child’s Preferences About Custody?

If you have ever wondered whether a judge will listen to your child’s preferences about custody or visitation, you are not alone. There is a short answer: Yes, under certain circumstances. However, there is much more to the story, and there are common misconceptions about the effect of the child’s preferences.

To understand the longer answer, you have to start with California law. In 2012, the California State Legislature enacted a law to give children more of a voice in custody and visitation matters. The law applies when a child is mature enough by “age and capacity to reason so as to form an intelligent preference” about custody or visitation.

The law has a specific provision when the child at least 14 years old, specifically with regard to how the child’s preferences are obtained and presented to the court. For these older children, the court “shall consider, and give due weight to” the child’s wishes unless doing so “is not in the child’s best interest.”

For kids less than 14 years of age, the court may permit the child to express his or her wishes if it is “appropriate pursuant to the child’s best interests.”

Any time a court does not allow a child to testify as a witness, the court must allow alternative means to obtain the child’s input. For example, the court may be informed of the child’s preferences through the child’s lawyer, an evaluator, or a mediator.

There is a common misconception that a court will necessarily do as the child asks.  This is not true. Even when the court does hear from the child, the court is not bound to follow the child’s preference. Rather, the court’s guiding principle is the best interest of the child. For this reason, the court can consider issues such as parent manipulation of the child and the child’s desire to avoid parental rules or discipline.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in child custody and visitation matters and can advise you in detail about how courts deal with these issues. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Get Ready for Next Tax Year: How Does the IRS Treat Spousal Support?
California Divorce, Spousal Support

Get Ready for Next Tax Year: How Does the IRS Treat Spousal Support?

If you are newly divorced or going through a divorce, you may be unsure how the Internal Revenue Service treats spousal support for tax purposes. Many people do not think about taxes until tax time rolls around. Of course, it is wise to be prepared on this issue, as receiving (or paying) spousal support will affect your tax bill and potentially lead to an underpayment that you will need to make up by April 15.

The Internal Revenue Service (IRS) treat spousal support, also called “alimony,” as income for federal tax purposes. The most important issue is what qualifies as alimony under federal tax law.

Alimony payments must meet all of the following qualifications:

  • The parties do not file a joint return.
  • The payments are made in cash, by check, or by money order.
  • The payment is received either by the ex-spouse or on that person’s behalf.
  • Neither the parties’ separation agreement nor a court decree says that the payment is not spousal support.
  • The responsibility to make the payments stops when the ex-spouse dies or remarries.
  • The payment is neither child support nor part of the parties’ property settlement.

The IRS specifically provides that the following do not qualify as alimony:

  • child support;
  • property settlements that are not made in cash;
  • payments that are intended to be a spouse’s share of community property income; and
  • payments made either to keep up or for the use of the paying spouse’s property.

The former spouse who receives the payments is required to report alimony as income for federal tax purposes. Likewise, the former spouse who makes alimony payments is entitled to a deduction for payments made.

Those who receive payments are required by law to cooperate by providing their Social Security number to the paying party. If receiving spouses do not do this, they may receive a $50 penalty. A party making the payments could not only receive a $50 penalty for failing to include the recipient’s Social Security number but also could see his or her income tax deduction disallowed.

Here are a few trickier situations that require competent financial or legal advice:

  • payments made to a third-party under a separation agreement, a divorce decree, or at the written request of the receiving party;
  • payments for life insurance premiums for the benefit of the receiving spouse, if they are required by court order or a written separation agreement; and
  • certain mortgage, real estate tax, or house insurance payments.
If you are not sure whether to claim alimony as income or a deduction, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.
The Basics of Domestic Partnerships in California
Uncategorized

The Basics of Domestic Partnerships in California

California’s legal option for domestic partnerships remains intact for eligible partners who wish to “share one another’s lives in an intimate and committed relationship of mutual caring.” Domestic partnerships provide a viable alternative to marriage for those who meet the legal requirements.

A couple who wishes to register their domestic partnership must meet certain requirements under California law:

In addition, the people must either be of the same sex or at least one of the individuals must be older than 62. If either of the partners is less than 18 years old, either parental or judicial consent is required.

Domestic partnerships are registered with the California Secretary of State. After the necessary paperwork is filed, each partner has the “same rights, protections, and benefits,” as well as “the same responsibilities, obligations, and duties” as do married spouses. California law also provides domestic partners with protection against discrimination by state agencies.

California also offers registration of confidential domestic partnerships. While most domestic partnerships are a matter of public record, a confidential domestic partnership “is a permanent record that is not open to the public.” The members of a confidential domestic partnership may obtain a copy of their filing documents. However, no one else may obtain a copy unless they can produce a certified copy of a court order.

The United States Supreme Court’s opinion that required states to license same-sex marriages did not change California’s domestic partnership law. Couples may still take advantage of domestic partnerships to formalize their relationship if they so choose.

If you need the assistance of an experienced California family lawyer, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today if you have questions about California family law: (415) 293-8314.

California Divorce

Protect Yourself: Update These Documents after a Divorce

If you are recently divorced, you need to make sure you update key documents. Many people remember to change the name on their driver’s license, credit cards, and so on. While that is important, there are other documents that are arguably more so; the failure to change certain documents could result in a different distribution of your property than you might intend.

Whether or not you initiated the divorce proceedings, you probably have strong feelings about whether you want your ex to have your property or insurance benefits if something happens to you. Unfortunately, too often, people overlook or postpone dealing with this issue, with potentially disastrous results.

Here is a list of some of the types of documents you will want to update:

  • employment documents, such as payroll data and withholdings;
  • financial documents, such as bank and brokerage accounts, as well as credit cards;
  • government and identification documents, such as your Social Security card and driver’s license; and
  • documents that relate to the ownership of property, such as car titles.

Beneficiary designations should be at the top of your list. You will need to identify all of these, which typically include insurance policies, retirement plans, financial brokerage accounts, and bank accounts that are payable on death (POD).

Other critical documents that need immediate attention are your will, any trusts, and any powers of attorney or advance directives. California Probate Code § 6122 provides that a divorce automatically revokes certain aspects of a will. However, that automatic revocation may cause other unintended consequences where property is concerned.

Even if you are relatively healthy, life is unpredictable. To ensure that your wishes are carried out, it is best to update your key documents and to consult with an experienced California lawyer who can help you identify important issues that may result from your divorce.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters and can advise you about many of the consequences of divorce. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce

Parental Access to Child Non-Medical Records

Parental Access to Child Non-Medical Records
One of the rights a parent has with respect to his or her children is the right to receive or review the child’s important records. Access to child records allows a parent to advocate for his or her child and to parent more effectively. This blog will discuss parental access to dental and school records.

California Family Code § 3025 specifically provides that parents have access to their minor child’s medical, dental, and school records. Under this law, it does not matter whether a parent is the custodial parent or not. You can read more about parental access to child medical records at my earlier blog here.

Parents also have the right to access their minor child’s dental records unless one of the following applies:

  • The child is emancipated.
  • The child is on active duty.
  • The record relates to certain restricted topics, such as sexual assault, communicable or sexually transmitted diseases, or alcohol abuse.
  • The dentist determines that releasing the record may harm the patient.

The California Education Code provides parents with wide-ranging rights relating to their children. Many of these rights relate directly to child education records:

  • notification of child absenteeism;
  • standardized and statewide test performance of the child;
  • class curriculum materials;
  • child progress; and
  • “academic performance standards, proficiencies, or skills their child is expected to accomplish.”

Leaving no room for doubt, the law also specifically provides that parents “have access to the school records of their child” and that they have the right to question inaccurate or misleading information in their child’s records. When a parent does this, the school is legally required to provide a response to the parent.

An experienced California family lawyer can be an invaluable advocate for you and your children. If you are involved in a difficult divorce or separation and have questions about your rights, contact the Law Offices of Judy L. Burger. We have decades of experience in contested divorce and custody issues, and we will put our experience to work for you. Call (415) 259-6636 to get started today.

California Divorce

Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?

Get Ready for Next Tax Year: Who Can Claim a Child as a Dependent?
If you anticipate that your divorce will be final during the 2016 calendar year, you need to start thinking about changes in your federal tax status. Of course, one of the most obvious changes is that you will no longer be eligible to file as “married,” either jointly or separately. Your filing status can significantly impact your tax liabilities. However, child dependency exemptions also affect your taxable bottom line.

The Internal Revenue Service (IRS) only allows one parent to claim an exemption for each child during each tax year. Most of the time, the custodial parent has the right to claim the child dependency exemption. That is because one of the requirements for the exemption, known as the “residency requirement,” mandates that the child live with the taxpayer for more than half of the year.

Here are the other requirements:     

  • The child must meet a relationship test. Sons, daughters, and stepchildren all meet this requirement.
  • The child must meet an age test. This generally means that the child must be either under the age of 19 and younger than you are, under the age of 24 and a student, or permanently and totally disabled.
  • The child cannot have provided more than half of his or her annual needs for support.
  • The child must not be filing a joint return.

Special rules apply that may allow a noncustodial parent to claim a child dependency exemption. From a very basic standpoint, this exception applies when the parents are divorced or legally separated and formally agree to the change. However, there are other requirements before this shift may be made, and it is wise to consult with your accountant or tax lawyer to protect yourself if you decide to do this.

If you anticipate losing the dependency exemption for the 2016 tax year, you can be proactive by electing to have more money withheld from your paycheck. This can reduce shocking surprises when filing time rolls around.

With a divorce come many changes, including tax options that can affect you and your children financially. If you need legal assistance in a California divorce, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys can work for you and your children: (415) 293-8314.

Adoption

An Overview of California Adoption

An Overview of California Adoption
California law provides many options for adoption. Of course, California recognizes traditional adoptions, which rely on a state agency. However, California recognizes that all families and their needs are different. For that reason, other mechanisms include stepparent/domestic partner adoption, relative (kinship) adoption, independent adoption, and international adoption.

Traditional Agency Adoption

In a traditional adoption, the California Department of Social Services is involved in the placement of the child with a family, which may consist of a single person. The agency conducts a home study and supervises the adoption placement for a period of time before court approval. A major advantage of adopting a child through the state agency is that state regulations apply. Many children adopted in this manner are in state custody before being placed with a family.

Stepparent/Domestic Partner Adoption

California uses a streamlined adoption procedure when the stepparent or domestic partner of a biological parent wants to adopt a child. To take advantage of this procedure, two requirements must be met:

  • The person who wants to adopt the child must have been married to or in a domestic partnership with the biological parent when the child was born.
  • The person who wants to adopt the child must still be married to or in a domestic partnership with the child’s biological parent.

In these cases, no home study is completed.

Relative (Kinship) Adoption

A simple procedure is also used when certain eligible relatives wish to adopt a child. A relative adoption is unique in several ways, such as the following:

  • The relative can continue to receive financial assistance from the state.
  • After the case is closed, no state agency continues to provide supervision of the relationship between the relative and the child.
  • The relative can choose to enter into an agreement with the biological parents to allow their continuing contact with the child.

Relative adoptions can help continue important family relationships while allowing the relative to receive financial assistance for raising the child.

Independent Adoption

In an independent adoption, no state agency or placement agency is involved in the adoption process. Instead, the adoptive parents and the birth parents agree themselves to the adoption. A main advantage to this option is that parental rights of the birth parents need not be terminated if everyone agrees. Because independent adoptions are highly regulated, is usually advisable to consult with an attorney if you choose this option.

International Adoption

When child to be adopted in California is born overseas, it is referred to as an international adoption. International adoptions can be more complicated because of differing country laws and because the child must have a visa to enter the United States. This is another area in which working with an experienced attorney can help make everything go more smoothly and according to your expectations.

Adopting a child is very exciting and can be very rewarding. If you need the assistance of an experienced California family lawyer to protect your interests in an adoption proceeding, the attorneys at the Law Offices of Judy L. Burger can help. Make the call today to learn how our attorneys help: (415) 293-8314.

 

Contesting Parentage in California
Child Custody, Child Support

Contesting Parentage in California

It goes without saying that being a parent comes with both rights and responsibilities. Nowhere is this more evident than in legal proceedings that relate to families. In the realm of family law, a child’s parents have the right to request custody and visitation. However, they also have the responsibility of supporting the child, sometimes by paying child support, uninsured healthcare costs, and child care costs.

When a child is born, the mother’s name is listed on the birth certificate. If the mother is married at the time of birth, her husband is presumed to be the father, and his name is also placed on the birth certificate. Likewise, if the mother was married at the time the child was conceived, that man is presumed to be the father and is listed on the certificate.

If the mother is not married, determining who the father is can be more complicated. A very common way of establishing paternity is through a voluntary Declaration of Paternity completed by the parents. Outside of a presumption or voluntary declaration, court proceedings are often used to determine the child’s father. You can read more about paternity at our earlier blog here.

But what happens when a man disputes that he is the father of the child? Indeed, much is at stake for everyone involved — the mother, the putative father, the child, and the state of California.

The California Family Code reaffirms that the state has a compelling interest in establishing child paternity and that both parents have a duty to support their children. This makes sense because parentage affects many rights:

  • child support;
  • child custody and visitation;
  • health insurance;
  • military benefits, survivors’ benefits, and Social Security benefits; and
  • inheritance rights.

When a parent does not support a child, the child suffers. However, the child’s family and the state are also often negatively affected.

The state child support agency can request that a court establish the paternity of a child. Others who may start a paternity suit include the mother, the child’s personal representative, and, of course, the father. A man has the legal right to request a genetic test to determine whether he is the biological father of a child.

Under California Family Code § 7575, if a man who signed a voluntary declaration of paternity is determined by genetic testing not to be the father, the court may still refuse to set aside the declaration. The court’s decision in this regard is focused on the best interest of the child.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including challenges to paternity. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Child Custody

Supervised Custody Exchanges in California

Supervised Custody Exchanges in California
One of the most difficult aspects of divorce is its effect on children. It is particularly hard for children when their parents do not speak to each other or, worse yet, fight when they do. The public policy of the state of California is to support the best interest of the state’s children. One way this is done is by providing for supervised custody exchanges.

Supervised custody exchanges are designed to make it easier for parents to transfer the child between one another. A neutral third party supervises the exchange. In fact, the parents need not see each other at all.

By preventing the parents from interacting, supervised custody exchanges reduce the negative impact of divorce on California’s children. They also reduce the likelihood that children will be exposed to foul language, physical hostility between the parents, or discussions of adult issues.

Supervised custody exchanges are carried out at a neutral location. By way of example, the two parents would report to the same location, such as a school, but at different times. Each would wait in a separate room. Once everyone was there, the child and his or her belongings would be transferred from one parent to the other by way of the neutral third party. In this way, the parents would not need to encounter one another at all, even in the parking lot.

As with California’s supervised visitation program, the core of supervised custody exchanges is the safety of the child and other involved parties, followed by the best interest of the child. You can read more about supervised visitation at our earlier blog here.

An experienced California family lawyer will advocate for the custody and visitation plan that is best for your children. If you are involved in a difficult divorce or separation, contact the Law Offices of Judy L. Burger. We have decades of experience in contested divorce and custody issues, and we will put our experience to work for you. Call (415) 259-6636 to get started today.

Visitation

Supervised Visitation in California

Supervised Visitation in California
Supervised visitation is a tool available to California judges when they want to ensure safety and look out for the best interest of a child. Supervised visitation allows a non-custodial parent to visit with his or her child in a safe environment under the supervision of a neutral third party.

There are several reasons a court might use supervised visitation, such as the following:

  • to allow the child and parent to become acquainted or reacquainted if they have no relationship or have been apart for some time;
  • to prevent the parent from abducting the child:
  • to address concerns about parenting skills or parental mental illness; and
  • to allow the parent and child to see each other even though there may be concerns about child abuse or neglect.

The legislature’s top priority in supervised visitation is “the safety of children, adults, and visitation supervisors.” After safety is assured, the paramount consideration is “the best interest of the child.”

California law allows for professional, paid providers to supervise visitation. However it also permits this need to be met by a nonprofessional provider, who is often a family member or friend. In either case, the law strictly regulates the qualifications of supervising providers. Regardless, the following three criteria apply:

  • no prior convictions for crimes against the person, including child molestation or abuse;
  • “no current or past court order in which the provider is the person being supervised”; and
  • if the person will be transporting the child, proof of current automobile insurance.

Professional providers must receive extensive training in many areas, including the following:

  • the responsibilities and duties of providers and their specific role;
  • laws relating to child abuse reporting, family law, and juvenile law;
  • child development needs;
  • cultural sensitivities; and
  • confidentiality

Supervised visitation sessions may be terminated if rules are violated, the child is “acutely distressed,” or a safety issue is present.

Supervised visitation provides an important means for a child to build or maintain a relationship with his or her noncustodial parent. If you need legal assistance in a hotly contested child custody or visitation matter, the attorneys at the Law Offices of Judy L. Burger will provide respectful legal support. Make the call today to learn how our attorneys can help: (415) 293-8314.