Category Archives: Child Custody

Child Custody, Visitation

How Does a Temporary Move Out of the Family Home Affect Custody and Visitation Decisions?

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How Does a Temporary Move Out of the Family Home Affect Custody and Visitation Decisions
After a decision to divorce or separate is made, one parent sometimes moves out while the other parent stays in the family home with the children. We are often asked about the effect of this move on court decisions relating to custody and visitation.

Divorce and legal separation are difficult events for everyone involved, especially children. Children, particularly younger ones, often do not understand what is happening. Even older children may not understand the full implications of the end of an adult couple’s relationship. For these reasons, the guiding principle for California custody and visitation decisions is the “best interest” of the parties’ children.

California law does not allow a court to consider short absences of a parent from the family home in its custody and visitation decisions as long as the following three criteria are met:

  • The party showed an interest in maintaining custody or visitation;
  • The party either maintains or makes reasonable efforts to maintain regular contact with the child; and
  • The party shows no intention to abandon the child.

Even if these criteria are not met, a California judge will not consider a temporary absence or relocation from the family home if it is due to actual or threatened domestic violence. For example, if a husband has been physically abusive toward his wife and she moves out of the family home as a result, the court will not hold her absence from the home against her in its custody and visitation decisions.

These laws do not apply to a parent who has abandoned a child or to a parent who is excluded from the home by a court-issued protective or restraining order.

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, Domestic Violence

How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

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How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

Nothing affects children like domestic violence. Recognizing this, California courts are empowered to deal harshly with the custody and visitation rights of those found to have committed domestic violence. Before a parent’s rights may be impacted, however, certain requirements must be met.

Domestic violence is defined to include causing or attempting to cause bodily injury or sexual assault, placing someone “in reasonable apprehension of imminent serious bodily injury to that person or another,” as well as “threatening, striking, harassing, destroying personal property or disturbing the peace of another.” Domestic violence is not limited to physical conduct but includes oral or written conduct that otherwise fits the definition of the law.

The first requirement of the law is that there must be a court finding of domestic violence in the last five years. This requirement can be met in two ways:

  • The person has been convicted of domestic violence or abuse, as defined in specific California laws; or
  • Any court has made a finding that the person committed domestic violence.
The requisite finding cannot be based solely on either a child custody evaluator’s conclusions or a Family Court Services staff member’s recommendation. Rather, the court must consider “any relevant, admissible evidence submitted by the parties” in making its finding.

After the first requirement is met, “there is a rebuttable presumption that an award of . . . custody [to that person] . . . is detrimental to the best interest of the child.” This means that the parent who committed domestic violence has an extra heavy burden before custody of any type may be awarded to him. The law directs that the court must consider several factors in determining whether this burden is met:

Whether the parent against whom the finding was met has showed that it is in the child’s best interest for him to receive some form of custody;

  • Whether the perpetrator completed any court-ordered batterer’s treatment program, alcohol or drug abuse counseling, or parenting class;
  • Whether the perpetrator has complied with the terms of his probation or parole, if applicable;
  • Whether the perpetrator’s conduct is governed by a protective or restraining order and, if so, whether he has complied with its terms; and
  • Whether the perpetrator has committed further acts of domestic violence.
The health and well-being of your children are of paramount importance to the State of California. If domestic violence is an issue in your family, 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

How Does a Parent’s Military Service Affect Child Custody Orders?

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How Does a Parent’s Military Service Affect Child Custody Orders?
Recognizing the unmatchable contributions of our nation’s military, the California Legislature enacted a law designed to protect military members’ custody and visitation rights.  California Family Code § 3047 provides that most absences and failures to comply with custody and visitation orders due to active military service shall not, by themselves, serve as a basis to modify custody or visitation rights.

The law imposes the following two requirements for a service member to take advantage of its provisions:

  • At issue must be the service members’ “absence, relocation, or failure to comply with custody and visitation orders”; and
  • “[T]he reason for the absence, relocation, or failure to comply [wa]s the party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.”
In addition, if a military parent receives temporary duty, deployment, or mobilization orders that will have a “material effect” on his custodial or visitation abilities, any resulting modification of the custody order is deemed temporary and may not interfere with the military parent’s later custody or visitation rights. When the temporary order is reviewed after the military parent returns, the court must apply a special rule: Unless it is in the best interest of the child, the temporary custody order must revert back to the original order.

The law also provides special accommodations for deployed military parents, under defined conditions:

  • Reasonable visitation rights to a child’s “stepparent, grandparent, or other family member”;
  • Expedited hearings;
  • The acceptance, from deployed military parents, of electronic evidence; and
  • The use of measures to avoid delay in custody and visitation cases.
As you might imagine, military parent cases are a top priority for California courts. If you are involved in a divorce and facing active duty, deployment, and mobilization orders, your experienced family lawyer can help position you as favorably as possible in custody and visitation matters. 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, Visitation

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

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

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.
Child Custody

What Happens at a Mandatory Child Custody Mediation?

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What Happens at a Mandatory Child Custody Mediation?
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.

Child Custody

Child Abandonment: How Does It Affect Custody Determinations?

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Child Abandonment: How Does It Affect Custody Determinations?
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?

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What Is an Independent Child Custody Evaluation?
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?

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

Child Custody

False Allegations of Child Abuse in California Custody Battles

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False Allegations of Child Abuse in California Custody BattlesThe 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.

Types of California Custody Orders
Child Custody

Types of California Custody Orders

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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.