Category Archives: Child Custody

Can You Have a Birth Certificate with Two Moms
Same Sex Marriage and Divorce, Child Custody, Child Support

Can You Have a Birth Certificate with Two Moms?

The United States Supreme Court upheld California’s decision to allow same-sex marriages in 2013. In another case heard two years later, a Supreme Court decision prevented states from banning same-sex marriage. But even so, these decisions did not iron out all of the legal wrinkles faced by gay couples. For example, spouses sometimes found they were not their child’s legal parent unless they went through a formal adoption. One reason for this is that it was difficult, if not impossible, to have a birth certificate with two moms or two dads. Continue reading →

What to Do When Divorced Parents Disagree About Healthcare
Child Custody

What to Do When Divorced Parents Disagree About Healthcare

Divorced parents Carlos and Sarah were able to handle disagreements about raising their two children – usually amicably. But they finally reached a potential impasse when trying to make healthcare decisions. Often, decisions about medical treatment are time-sensitive. Therefore, Carlos and Sarah needed to deal with their disagreement about healthcare as quickly as possible. Continue reading →

In re Marriage of McHugh When Spousal Unemployment in a Divorce Is Not Accidental
Spousal Support, Child Custody

In re Marriage of McHugh: When Spousal Unemployment in a Divorce Is Not Accidental

Under California family law, both parents are expected to be financially responsible for their children. One parent often pays child support to the parent with a more significant custodial role. Courts base child support awards partially on the paying parent’s income. But what happens when that parent no longer has a job or other source of income? Even worse, what if spousal unemployment was not an accident? Continue reading →

What Acclaimed TV Show Frasier Got Right About Child Custody
Child Custody, Child Support

What Acclaimed TV Show Frasier Got Right About Child Custody

Frasier delighted its fans during its 1993 to 2004 run. This Seattle-based show followed the antics of a radio psychiatrist and his friends and family. In addition to his father and brother, Frasier had to forge and maintain relationships with his ex-wife, Lilith, and his young son, Frederick. But Lilith and Frederick lived across the country in Boston. Their living arrangements presented some problems with child custody and visitation. While the show presented these issues in a humane yet humorous way, there are some significant lessons to take away. Continue reading →

Do Movies About Divorce Get It Rightt
California Divorce, Adultery, Child Custody, Domestic Violence, Property Division

Do Movies About Divorce Get It Right?

Be aware that there are spoilers ahead if you have never seen the movies about divorce discussed in this article.

Mrs. Doubtfire – Stability Trumps Whimsy When It Comes to Child Custody and Visitation

This 1993 film starring the late Robin Williams focused on divorce, child custody, and visitation in a poignant yet comical way. As Daniel and Miranda Hillard’s marriage ended, Daniel’s whimsical behavior made him look like an unfit parent. He and his children had a great relationship, but the court granted custody to Miranda. After all, she had a good job and a stable home environment. The court also insisted Daniel clean up his act and limited his access to the kids.

Daniel’s response was to transform himself into an older female character – Mrs. Doubtfire – and get hired to be his own children’s nanny. He and the children became closer until his scheme fell apart, making him look even more unstable. Unlike many movies about divorce, this film ends on a high note. But did the movie makers get it right?

Child custody and visitation are significant points. It seemed the court tried to make decisions that were in the children’s best interests at all times. A stable home life is essential, and Daniel, at first, did not offer this. It made sense to give Miranda full custody and to limit Daniel’s visits. So, it appears that the court did get it right

However, the court may not have considered the children’s feelings on this matter. Although children are not always the best judge of character, Daniel’s kids were close to him and needed to see him. Daniel and Miranda worked out a compromise on visitation that the judge probably would have been approved if included in a California parenting plan.

Kramer vs. Kramer – When Home Away from Home Isn’t Home

This 1979 legal drama is about Ted and Joanna Kramer and their son, Billy. Joanna deserts Billy, leaving him Ted. Unfortunately, she had been Billy’s primary caregiver because of Ted’s high-stress, time-consumer job.

After being gone for more than a year, Joanna returns to divorce Ted and claim custody of Billy., despite Joanna’s abandonment, she won custody of her son.

Joanna prepares an apartment for Billy and then tearfully confesses to Ted that Billy’s true home is with Ted. We don’t see any courtroom scenes as the movie ends soon after, so it’s unsure whether Joanna officially yielded custody or not.

Courts in the 1970s still tended to favor mothers over fathers when it came to custody battles. Movies about divorce did, too. The court here seemed to ignore Joanna’s abandonment and Ted’s stepping up to be a good father to Billy. This may be partly due to something called the “tender years doctrine” that presumed moms should have custody of very young children.

In a California divorce, the courts make custody decisions based on many factors, including what is in the child’s best interests. Abandonment is a serious concern, especially when the child’s other parent is not unfit. A California judge faced with this situation today might have granted sole physical and legal custody to Ted. However, both parents may negotiate a parenting plan and present it to the court for approval.

The War of the Roses – Property Division Can Be a Thorny Issue

This dark comedy shares the story of Oliver and Barbara Rose. During their marriage, they had two children and became very wealthy due to Oliver’s legal career. Finally, though, Barbara confesses she no longer loves Oliver, and they decide to divorce.

The real problems begin when they start splitting up their property. The mansion that Barbara had found and filled with expensive possession became the main point of contention. Barbara kicks Oliver out of the house. Despite his attorney’s advice to compromise, Oliver returns to the home. As their conflict spirals out of control, the couple begins destroying their home, its contents, and eventually each other.

As movies about divorce go, this one captures how personal property division can become to divorcing couples. Sometimes it’s not about the actual property. Instead, personal feelings can get in the way, preventing much-needed compromise.

The best way Oliver and Barbara could have prevented the loss of property and life here would have been to heed the advice of their divorce attorney. Since California is a community property estate, shared assets and debts are split 50-50 with a few exceptions. Attorneys with property division experience could have used California law to help the Roses categorize their property and then amicably divide it.

Movies About Divorce Don’t Always Get It Right. Talk to a California Divorce Attorney About Your Divorce.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

Is Parental Kidnapping Really a Crime
Child Custody

Is Parental Kidnapping Really a Crime?

After eight years of marriage and the birth of one child, Tina and Derek decided to call it quits. Their divorce became contentious as both parents wanted custody of their child, Alex. Unable to agree on custody and visitation, they presented their cases to a judge, who granted Derek sole legal and physical custody and approved a visitation plan. After a weekend visit, Tina refused to return Alex to Derek. Has Tina committed a crime? Since Alex is her child, is she committing parental kidnapping by refusing to return him to his legal custodian?

Child Custody Arrangements

Parental kidnapping cases usually occur because of custody disputes. Maybe one spouse objects to the judge’s decision to grant custody to the other parent. Often, parental abduction cases stem more from power struggles than keeping children safe from an unfit parent. In our example above, the custody order left Tina feeling powerless. Tina indeed loves her son, but she is also trying to use him as leverage to get more spousal support and joint custody.

There are legal ways to resolve custody disputes without having to resort to kidnapping. Your divorce attorney can explain your options. For example, you may have evidence that your co-parent is unfit that the court never heard. Your attorney might present that evidence to the court and ask that your custody agreement be modified.

But parental kidnapping is the wrong way to handle a disagreement over custody.

What Qualifies as Parental Kidnapping

According to California Penal Code, someone who does not have the right to custody commits a crime by maliciously taking, enticing, keeping, withholding, or concealing a child from his or her lawful custodian.

This is precisely what Tina did –withheld her son from his legal guardian. The judge’s custody order was clear and unambiguous. By ignoring the order, she is committing a crime that is punishable by:

  • Up to one year in a county jail, a fine of up to $1,000, or both; or
  • Imprisonment for two to four years, a fine up to $10,000.00, or both.

Unless your child is in clear and immediate danger, it is better to work through the legal system to resolve custody disagreements.

What Isn’t Parental Abduction?

Unusual situations can arise when parents and children are involved. For example, the mother automatically has custody (at least initially) if the parents of a child are not married. Generally, this is true even if the parents were living together with the child.

So, if Tina and Derek were not married at the time of their breakup, Tina would have immediate custody of Alex. If Derek removed Alex from home without her permission or refused to return him, then Derek would have committed child abduction. Derek could get an attorney to help him exercise custody and visitation rights instead of just taking Alex.

Also, if a married couple is still together, and a judge has not signed a custody order, then both parents have custody. If Derek takes Alex on a fishing trip against Tina’s wishes, it is not parental abduction because Derek has the same parental rights to Alex as Tina does.

What Can You Do About Parental Kidnapping?

Maybe you are still married but worry about your spouse taking your children away. Talk to an attorney immediately. But if you or your children are in immediate danger, call 911 first.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

What Are Ex Parte Hearings and How Do They Work
California Divorce, Child Custody, Child Support, Domestic Violence, Spousal Support

What Are Ex Parte Hearings and How Do They Work?

From the time a California divorce is filed until it is settled can take time.  But the parties sometimes require action from the court that just can’t wait. For example, ex parte hearings address emergency matters that need to be heard as soon as possible.

Ex Parte Hearings in a California Divorce

One or more parties may apply for emergency orders in family law cases.  

Courts might hold ex parte hearings for the following reasons:

  • Preventing danger or harm to another party or any children involved in the divorce.
  • Preventing immediate loss or damage to property.
  • Setting a hearing for a time that’s shorter than normal.
  • Shortening or extending the service time for notices of hearing and other court papers.
  • Rescheduling a hearing or trial.

Your attorney will know when ex parte hearings are needed and how to get them.

Applying for Ex Parte Decisions

Not every situation requires an expedited or emergency hearing. However, your attorney can ask for an ex parte hearing for the following basic reasons:

  • Request for an emergency order.
  • Ask to reschedule a hearing or trial.

Generally, applications must contain the following information:

  • Contact information for any attorneys involved in the case or the contact information for any party that does not have an attorney if known.
  • Declarations about facts supporting the request.
  • Lists of previous orders or applications made about the same issue.
  • A disclosure of any changes to the party’s status quo resulting from the order.
  • Specific information about child custody or visitation issues.

The law requires that most parties who request ex parte hearings usually must notify the other parties involved.

The declaration also contains details about how the filing party served the other party. If it was impossible to serve the notice, provide information about all attempts to serve. And finally, the person applying for an ex parte hearing can state any reasons that the notice of hearing should not be served.

We Can Discuss Ex Parte Hearings with You.

As our attorneys work on your case, they will identify any areas that might need emergency orders.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.