California Divorce

The Effect of Alcohol and Drug Abuse Claims in a Divorce Scenario

Substance Abuse and Divorce in California
California courts hold the parent-child relationship sacred, as it should be.  Translated to divorce terms, this means courts will generally award joint legal and physical custody to both parents in divorce and custody proceedings, with few exceptions. One exception to the general rule favoring joint legal and physical custody is when one parent has ongoing substance abuse problems.  Habitual or continual use of controlled substances or alcohol by either parent can have devastating consequences on the children. Of course, as with any allegation of fault, the party making the claim must provide proof or risk having a claim backfire and weaken the party’s own case.  If you reasonably believe your spouse has a substance abuse problem, bring the issue to your attorney’s attention immediately and discuss whether or not you should request court-ordered drug testing. In California, section 3041.5 of the Family Law Code provides that courts may order drug and alcohol testing via urine tests in divorce cases: In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship. …. One vitally important note to remember is that a court will most often order drug testing of both spouses, not just one, so if you suspect your test results may indicate the presence of a controlled substance, you need to tell your attorney before drug testing is requested.  Also keep in mind that test results are confidential and a spouse can be held liable for violating that confidentiality. Another important point is that California law does not permit hair follicle testing to be ordered by a court.  A party may be able to successfully object to hair follicle testing if it was ordered. If you are successful in proving an ongoing substance abuse problem, you may be awarded full legal and physical custody, along with continued substance abuse testing of the other parent, and even supervised visitation in some cases. Because each case is fact-specific, you should consult with an experienced family law attorney before requesting or submitting to drug and alcohol testing if at all possible.  The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a divorce or custody case in California.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas.  If you are a parent with a visitation or custody issue, call us today to learn more about how we can help.  Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Adultery, California Divorce

How Will a California Court View Adultery In My Divorce Case?

Adultery and Divorce in California
California led the way in no-fault divorce laws, where a spouse can get a divorce without showing any fault of the other spouse.  Nonetheless, showing fault may help one spouse win custody of the children, greater alimony, and a greater share of the marital property.  This is why you need to discuss any potential areas of fault with your attorney, whether you wish to raise the issue or defend against it. One traditional area of fault that could affect the outcome of a divorce case is adultery.  The degree of importance placed on adultery varies from state to state, judge to judge, and from case to case.  Some states tend to hold a more traditional view of marriage and give greater weight to adultery, while others place less importance on fidelity within the marriage. In California, adultery does not necessarily amount to a game-changer unless the adulterous relationship irreparably affected certain aspects of the marriage.  For instance, if a wandering husband used marital assets to support his mistress, then the wife may be able to win a greater share of the marital property.  Likewise, if the husband openly cavorted with his mistress in front of the children, that fact may weigh substantially on the court’s award of custody and visitation to the wife. Perhaps the most delicate subject in a case where adultery has occurred is a claim that an unfaithful spouse brought a sexually transmitted disease into the marriage.  Such a claim can give the victim spouse a substantial advantage, but proving the issue in court may be more than the victim bargained for. If adultery is likely to be a factor in your divorce case, seek the help of an experienced divorce lawyer as early as possible.  A good attorney will help you build the foundation and strategy you need to raise or defend an adultery claim at trial, and achieve the best possible outcome for you. The Law Offices of Judy L. Burger can assist you in proving or defending an adultery claim in your divorce proceedings in California.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas.  If you are a spouse facing divorce, call us today to learn more about how we can help you.  Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.  
Child Custody

How Abandonment Can Work In Your Favor In California

Abandonment in Divorce Proceedings
In divorce proceedings, abandonment refers to when one spouse leaves the other without the intention of returning.  Prior to the enactment of “no-fault” divorce laws, spouses could allege abandonment as a ground for seeking a divorce.  Although proving fault is no longer required to get a divorce in California, abandonment may be factored in by a judge when awarding child custody, alimony, and deciding how marital property will be divided. If your spouse abandoned you or the children, you should be prepared to present evidence of the fact of the abandonment and the effects it had on you and the children.  You may have suffered financially and emotionally.  Depending on their ages, the children’s anguish may have manifested in changes in behavior and performance at home or school.  Any evidence of the negative impact of abandonment should be discussed with your attorney and prepared for presentation at trial, if necessary. When you allege abandonment, your spouse may raise a defense of consent or justification.  A deserting spouse can mitigate or eliminate any finding of fault on his part if he can show you consented to the abandonment.  One example of this would be if you asked your spouse to leave and never return. Likewise, a spouse may be able to show that the abandonment was justified due to abuse or another reason, such as the supposed abandonment was actually due to the spouse moving to take a new job while the other spouse refused to move.  Under these circumstances, it is unlikely the court would attach any fault to the abandonment. The Law Offices of Judy L. Burger can assist you in proving or defending an abandonment situation in your divorce proceedings in California.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas.  If you are a spouse facing divorce, call us today to learn more about how we can help you.  Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Child Custody

Additional Factors To Consider When Making a Parenting Plan

We recently discussed California’s requirement for parents to develop a parenting plan, also known as a “custody and visitation agreement” or a “time-share plan,” which is essentially a written agreement between parents detailing how much time the children will spend with each parent and a plan for making important decisions in the future about the child’s welfare and education. Many of the factors in a parenting plan will be obvious, others less so.  In this article we will draw your attention to some of the less than obvious factors to consider when developing your ideal parenting plan.  Some of these items may be extremely important to your family:
  1. Whether there will be regular visitation with grandparents or other extended family members, and if so, how often;
  2. Sleeping arrangements for children and parents, including the children’s or parents’ overnight guests;
  3. Instructions for administering medication;
  4. Dietary requirements or restrictions;
  5. Preferred methods of discipline;
  6. Acceptable methods and frequency of parent-child communication while the children are with the other parent;
  7. Parent-to-parent communication guidelines;
  8. Whether the children need both parents’ consent for piercings or body art;
  9. Responsibility for routine vaccinations, dental care, and medical care;
  10. Acceptable use of technology, including internet, social media, and cell phones;
  11. Curfews for each child and anticipated exceptions, if any;
  12. Acceptable ratings and genre for movies the children may watch;
  13. Acceptable ratings and genre for video games the children may use;
  14. Which extra-curricular/school/sporting events the children will participate in;
  15. Participation in church/synagogue/mosque activities.
These factors may be beyond the usual set of essentials suggested for your parenting plan, but depending on your family dynamics, could be troublesome if not decided ahead of time. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas.  If you are a parent with a visitation or custody issue, call us today to learn more about how we can help.  Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.   
Child Custody

What Are Some Factors To Consider When Making a Parenting Plan?

post1 California requires parents to develop a parenting plan, also known as a “custody and visitation agreement” or a “time-share plan.” A parenting plan is essentially a written agreement between parents detailing how much time the children will spend with each parent and a plan for making important decisions in the future about the child’s welfare and education. A comprehensive parenting plan includes many factors. Its purpose is to ensure stability in the present, as well as to eliminate uncertainty in the future. Some of the most important factors to include in your parenting plan are: 1. Who will the children live with? 2. When will the children visit with the other parent? 3. Which holidays are observed by each parent, and which holidays will the children observe with each? 4. How will parents split time with the children during mutually observed holidays? 5. How will parents split time with the children on the children’s birthdays? 6. How will parents split time with the children on the parents’ birthdays? 7. Where will the children be exchanged from one parent to the other for various periods, e.g. regular visitation periods, holidays, birthdays? 8. Who will be responsible for transporting the children between parents’ homes or an alternate exchange location, and when? 9. How will car seat requirements be met, if any? 10. How will visitation schedule changes be addressed, e.g., parents’ work schedule conflicts, or when the children’s extra-curricular activities conflict with visitation,etc.? 11. How will the parents share school vacations, and who will be responsible for the costs of child care during school vacations, if necessary? 12. How will the parents choose and share the cost of regular child care, if needed? 13. Will the other parent will have ‘first right of refusal’ if a babysitter is needed? 14. How will the parents handle the children having contact with extended family? 15. How will the parents handle the children having contact with a parent’s friends or romantic partners? 16. What if a parent needs to relocate for work or other reasons? These factors are generally considered essential to every parenting plan in California. There are additional factors that you may want to consider as well, and we plan to address those in an upcoming article. Check back soon to learn more about constructing the ideal parenting plan. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online.
Child Custody

What Is a Parenting Plan and Why Do We Need One?

Every divorcing couple in California, or their attorneys on their behalf, must develop a parenting plan, also known as a “custody and visitation agreement” or a “time-share plan.” The parenting plan is essentially a written agreement between parents detailing how much time the children will spend with each parent and a plan for making important decisions in the future about the child’s welfare and education. The purpose of a parenting plan is multifold. Developing the plan allows both parents to have input, and in the process allows parents to better understand which factors are more or less important to the other parent. Having a good lawyer on your side allows you to negotiate according to the information derived in the process, without your emotions betraying your good judgment. A comprehensive parenting plan will include many factors, including a method for making important decisions about the child and a plan for breaking a tie. For instance, parents can agree that if a tie-breaker is needed, they will consult a qualified mediator to help them reach a joint decision. Divorcing parents who do not agree on an initial parenting plan may be ordered to engage in mediation. If mediation is unsuccessful, an independent counselor may be appointed to meet individually with both parents. If the parties still cannot agree on a parenting plan, the judge may create a plan considering factors recommended by the mediator and counselor, along with the individual requests of the parties. We strive in every case to make sure our clients’ voices are heard in developing a parenting plan, and to gain the other parent’s agreement to the plan. The reason is simple — it is better for parents to craft an agreement based on their knowledge of their children’s specific needs, rather than being forced to comply with a parenting plan constructed by a judge who does not know the children or all of the family dynamics at issue. In cases where it is impossible to reach a reasonable agreement with the other parent, we will aggressively pursue a parenting plan that meets our client’s needs and promotes the best interests of the children. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help you. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Child Custody

How Do I Change Visitation in California?

Your children have just come home from visitation with their other parent and related some disturbing details about the weekend. Or perhaps you learned through other channels that your children have been exposed to situations you believe to be inappropriate for children of their ages, or worse, dangerous to their health and well-being. Is there anything you can do without violating the visitation order? Most parents have an instinctive drive to protect their children from harm. The problem arises when one parent believes a situation or activity is harmful to the children, while the other parent does not. The difference of opinion may lead one parent to withhold visitation, which in turn can lead the other parent to ask the court for a finding of contempt. While every parent should protect their children from actual, imminent danger, the underlying question in a case where visitation has been withheld is what led the custodial parent to withhold visitation in the first place. In other words, would a judge agree that continued visitation under the circumstance is likely to be harmful to the children? Will you be able to adequately defend your actions if you withhold visitation? A better course of action, if you believe visitation with the other parent is harmful to your children, is to be proactive: Take your case to court before violating the visitation order if possible. The general rule is that a California court will allow visitation in every case unless it would be physically or emotionally harmful to the children. Thus, if you want visitation suspended, you must be prepared to show evidence that the children have and will suffer physical or emotional harm if visitation continues. If your situation is urgent, we may be able to help you get an ex parte order, which is in the nature of an emergency order, and is the quickest way to get temporary court approval to withhold visitation. At the Law Offices of Judy L. Burger, we receive calls regularly from parents on both sides of this issue. If you believe continued visitation is harmful to your children, or if you believe visitation has been wrongfully withheld from you, contact us to discuss your rights and a recommended course of action. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a visitation or custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.
Child Custody

Child Custody Basics in California

Whether you face a hotly contested custody battle or are contemplating an agreement with your soon-to-be-ex, it is vital that you understand the legal terminology of custody orders in California, such as sole custody, joint custody, legal custody and physical custody. There are two main facets of child custody. Physical custody refers to who the children will live with. On the other hand, legal custody refers to who has authority to make key decisions about the children, such as health choices, education, and religious training. Sometimes, children of divorced parents in California will live primarily with one parent or the other. That parent will be known as the sole physical custodian. Another possible outcome of a custody dispute is that both parents are granted shared physical custody, or joint physical custody. Joint physical custody means that the children will spend as much time with both parents as possible, but it does not mean parents will necessarily get equal time with the children. Separate from the physical custody arrangement, parents commonly share joint legal custody, meaning they share joint authority to make major decisions for the children. Sometimes, one parent is awarded sole legal custody, which means that parent has the sole right and responsibility to make major decisions for the children. Under California law, judges must decide custody based on what is in the best interests of the children. To make that decision, judges consider many factors, including:
  • The ages of the children,
  • The emotional ties between the parents and the children,
  • The ability of the parents to care for the children,
  • The health of the children,
  • Any history of family violence or substance abuse, and
  • The children’s ties to school, home, and community.
Custody is not automatically awarded to the mother or the father. Rather, a parent seeking sole custody must show that it is in the children’s best interest for that parent to have sole legal and physical custody, and must be prepared to refute the other parent’s evidence to the contrary. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a custody dispute in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the Sacramento and San Francisco Bay areas. If you are a parent facing a custody battle, and would like to learn more about how we can help you, contact us today at (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or online via our confidential inquiry form.
Domestic Violence

Can I Get a Restraining Order Against My Spouse While I’m Still Married?

Domestic violence affects every class and race in every city and county in California. Sometimes the abuse remains hidden, but help is available through law enforcement and the courts. The first step beyond a routine police report for a victim of domestic violence is often seeking a restraining order against the abuser, and it is possible to get a restraining order against your husband or wife while you are still married. When children are involved, the urgency of the situation escalates rapidly. While a restraining order is only a piece of paper and may not stop a determined abuser, it can be an effective deterrent for an abuser who values his freedom. An abuser who violates a restraining order can be arrested on the spot and jailed for a time — at least long enough for victims to seek a safe place. At the Law Offices of Judy L. Burger, we offer the full range of legal services for victims of domestic violence. We can seek a restraining order, a temporary custody and support order if necessary, and aggressively pursue a divorce at the same time. We believe in striking fast and finishing strong in high conflict cases, including those where domestic violence is a factor. It is important to note that over many years of practicing law, we have seen cases where a spouse claims domestic violence where there is no evidentiary support for the abuse. We strive to represent the facts to a court honestly and will not knowingly present false information. If you are a spouse who has been accused of domestic violence where none exists, and you believe the accusation was made to enhance your spouse’s standing in a pending divorce or custody case, contact us to discuss your options. The Law Offices of Judy L. Burger can assist you in fighting for your rights and those of your children in a divorce, custody, or visitation matter involving domestic violence in California. Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around Sacramento and the San Francisco Bay areas. If you are in need of a restraining order due to domestic violence, or need help dealing with allegations of domestic violence in a divorce or custody setting, call us today to learn more about how we can help you. Call (916)631-1935 in the Sacramento area, or (415)293-8314 in the San Francisco Bay area, or contact us online via our confidential inquiry form.