Category Archives: Child Custody

California Divorce, Child Custody, Visitation

I’m Afraid My Spouse Will Take Our Children Out of State. What Can I Do?

November 29, 2018 Judy L. Burger Leave a comment

Child custody is complicated. Between physical custody, legal custody, joint custody, sole custody – it’s easy to get confused. However, doing what’s best for the children should be at the forefront of every discussion about child custody. It’s typically best for children to live near both parents, whenever practical, to maintain and foster their relationships. But what happens when it becomes necessary to relocate? Many parents struggle to decide where their children will live and whether the other parent can move the children out of state.

Before the Parenting Plan … and After

Address relocation issues in your parenting plan, if possible. Disagreements about where the children can live may be worked out with a mediator. As always, if parents are unable to agree, the court will decide where the children will live and with whom.

After a parenting plan is put in place, however, things may change. One parent may want to move children to another city or even out of state. Sometimes it is necessary to put the issue before a judge.

Courts try to make all decisions keeping the best interests of the children in mind, and relocation issues are no different. The judge may consider some of the following issues when deciding whether children can be moved out of state:

Will the move alter visitation?
Will the move hurt the relationship between the child and the parent who is not moving?
What type of custody arrangements are already in place?

The parenting plan can be changed by agreement or by court order. The form of custody granted to the parent seeking to move may influence a judge’s decisions about relocation.

The Type of Custody May Matter

Child custody generally falls into these categories:

Joint legal custody,
Sole legal custody,
Joint physical custody, and
Sole legal custody.

A parent with sole physical custody may move the children unless the other parent proves that the move will harm the children in some way. For example, Hannah wants to move her children from California to Connecticut to be closer to her family. Jonah, the children’s father, has a very close relationship with his children, and he filed a motion to stop the move. Because of that relationship and the children’s ties to the community, the judge ruled in Jonah’s favor. Hannah was free to move out of state but was not allowed to take the children.

When the parents have joint physical custody, the parent seeking to relocate must prove that the move is beneficial to the children. Let’s say Hannah and Jonah have joint legal custody. Hannah wants to move, but Jonah objects. The burden is on Hannah to prove that the move is good for the kids.

It’s Complicated. We Can Help.

Moving children out of state can be difficult. You need an advocate to help you understand your options.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.

California Divorce, Child Custody, Child Support

FAQs About Parenting Plans

November 22, 2018 Judy L. Burger Leave a comment

California courts are strongly “pro-child.” Typically, decisions are based on the best interests of any children involved in a divorce or legal separation. Let’s look at a few questions frequently asked about parenting plans.

What is a parenting plan?

When a divorcing couple have children, they need to agree on how to care for them. Also called a custody and visitation agreement, the parenting plan sets out how physical and legal custody will be handled.

To avoid misunderstandings, a parenting plan should include specific provisions about each parent’s responsibilities and obligations. For example, a plan might state who will handle:

Health care and medical treatments,
School, educational, and extracurricular activities,
Exchanging the children after a visit,
Parenting styles,
Child care; and
Travel and relocation.

Courts look for a plan that provides the best possible solution for the children.

What if parents can’t agree on a parenting plan?

The first step is mediation. Both parents work on sample plans with their attorneys, then present their proposed parenting plans to the mediator. Although mediation is not legally binding, mediators often facilitate agreements between disputing parents.

However, sometimes mediation fails. If so, the couple schedule a hearing where their parenting plans can be presented for the judge’s consideration. The court renders a decision, sometimes with the help of independent counselors or the mediator.

What happens after we sign the parenting plan?

When parents are able to agree, then they simply submit their parenting plan to the court. Unless the judge sees something wrong with the plan – something that is not in the best interests of the children – the plan usually is approved.

Our parenting plan was approved. What now?

Follow the parenting plan. If you find that sections are not working, talk to your attorney about adjustments.

Any of the following behaviors may violate the terms of your parenting plan:

Trying to turn your child against his or her other parent,
Being late when it is time to return your child after visitation,
Refusing to allow visitation at all, or
Refusing to handle educational or healthcare decisions as agreed.

When you violate your parenting plan, you are violating a court order. A judge may hold you in contempt of court. The consequences could be as simple as attending a parenting class or as severe as jail time.

Final Thoughts

The driving principle behind a parent plan is to act in the best interests of the child. Make sure your parenting plan is right for your children.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. Please call us at 415-293-8314 to talk about your divorce. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. We are opening a Beverly Hills office soon.

California Divorce, Child Custody

Regaining Custody of Your Children

November 15, 2018 Judy L. Burger Leave a comment

Child custody may be one of the most contentious issues in a divorce proceeding. Judges may be called upon to make unpopular decisions. Sometimes, children are removed from a parent. If this has happened to you, read on to learn more about regaining custody of your children.

Address the Problems That Caused You to Lose Custody

Termination of custody and visitation sometimes occurs because of alleged abuse or neglect. Typically, parents are allowed some time to fix whatever conditions brought about the potential termination of their rights. Children usually are returned to parents who are successful at addressing their problems.

Under most circumstances, children will be removed from a home where someone living in the home is a registered sex offender. A parent in this situation must prove to the court that the children are not in danger. This can be difficult to do because California courts are serious about protecting children.

Carefully review all custody orders. The court probably spelled out any requirements that you must meet to regain custody. Complying with the court orders means you are more likely to get your children back.

Request Custody and Visitation

There are steps you can take if you have lost custody and visitation.

File a motion with the court clerk.
Request a hearing on your motion.
Serve a copy of motion to the other parent involved that includes a copy of the notice of hearing.
Attend your hearing and present the reasons you should regain custody. Present evidence showing you have complied with court orders or addressed the problems that caused you to lose custody.

Sometimes a court will allow visitation, possibly supervised. Using your visitation rights to rebuild and maintain your relationship with your child may convince the court to reinstate your child custody arrangements. Most importantly, consult with an attorney who has experience with child custody cases.

Learn More About How to Regain Custody of Your Children

It’s not easy, but it can be done. Remember, though, that the judge will only return custody to you if it appears to be in the best interests of the child.

California Divorce, Child Custody

What Is Joint Legal Custody?

November 10, 2018 Judy L. Burger Leave a comment

Zach and Mary decide to divorce after 14 years of marriage. Of course, they are concerned about how their three children will handle the stress of divorce. Both parents want custody, but realize they need a plan. As they learn more about how custody is decided, they have questions. For example, they aren’t sure what joint legal custody entails.

Types of Child Custody

In a divorce proceeding, the term “child custody” refers to the care, control, and maintenance of a child or children. However, there are two different types of custody: physical and legal. Each type of custody can be sole or joint. Sometimes a judge may even award one parent sole physical custody of a child, but joint legal custody. As always, the judge will decide what’s best for the child when finalizing child custody arrangements:

Sole Custody. A parent with sole physical custody decides where a child lives. If a parent is awarded sole legal custody, he or she will make all legal decisions related to a child’s health, education, and welfare. The non-custodial parent may have visitation rights as ordered by the court.
Joint Custody. Parents may share legal or physical custody under joint custody arrangements. Physical custody still relates to arrangements regarding the physical presence of the child. Legal custody still refers to the child’s health, education, and welfare. The difference, of course, is that each parent has at least some say in what happens with the child.

So, how does joint legal custody vary from sole legal custody and joint/sole physical custody?

Joint Legal Custody

Parents who are given joint legal custody generally are required to make decisions together. However, if a parent refuses to work with the other parent, they may both end up back in court. That’s not the ideal situation for anyone.

Sometimes Sharing is Impossible.

A judge may give one parent sole legal custody if:

parents are unable to work together
one person is considered an unfit parent
one of the parents is just not capable of making legal decisions
it appears that it’s not in the children’s best interests for both parents to share legal custody

Final Thoughts.

Zach and Mary found it difficult to agree on a parenting plan. Both wanted maximum time with their kids. Both wanted to make all decisions. The judge presiding over their case sent to them mediation, where they came up a parenting plan that worked for the children. They were able to see that joint custody could work as long as they continued to communicate and put their children first.

Acting in the best interest of the child is the driving principle behind a parent plan. Make sure custody issues are handled while negotiating your marital settlement agreement.

To discuss your child custody concerns with an experienced California attorney, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.

California Divorce, Child Custody, Child Support

How to Help Your Kids Thrive During a Divorce

August 7, 2018 Judy L. Burger Leave a comment

Children feel a whole range of emotions during a divorce. They may be too young or too damaged to express and deal with those emotions, though. There are ways, however, that you and your ex-spouse can help your kids thrive, even in the middle of a divorce proceeding.

Talk to your children … and let them know they can talk to you.

Reassurance is important. Tell them the divorce is not their fault and that they are still loved. Since communication is a two-way street, make sure they know they can talk to you about anything, any time.

Don’t badmouth the other adults in their young lives.

You may have some pretty strong feelings about your child’s other parent right now. Those hard feelings may extend to grandparents, aunts, uncles, cousins, and even family friends. Try hard to keep bad thoughts to yourself or only vent to another adult when your children are not around. Letting off steam might help you feel better, but it won’t help your children cope.

Coordinate with their other parent.

Parents who are divorcing need to complete a written agreement called a parenting plan. Use this opportunity to calmly coordinate rules, discipline, school events, holiday and other things your children need to feel safe, loved, and protected.

Don’t interfere with scheduled visitation.

Punishing your children because you’re mad at your ex is never a good idea. The only reason to withhold visitation is if you think your child is being endangered. Even then, you need to alert your attorney or the court that there’s a problem.

Watch for warning signs.

Children deal with stress in different ways. Watch for any indication that your son or daughter is not handling the divorce well. Unchecked anxiety, anger, depression, and the like can lead to long-term damage. If your child is behaving oddly, losing interest in activities, or their grades are slipping, seek help for them.

Keep Their Best Interests in Mind.

Divorce is hard on everyone involved. Even though you’re hurting and stressed out right now, remember that your children have needs, too.

The attorneys at the Law Offices of Judy L. Burger have extensive experience with divorce and child custody matters. In fact, Ms. Burger is a California Certified Family Law Specialist. Please feel free to call us at 415-293-8314 to set up an appointment. We assist clients in California’s Northern to Central Cost, including San Francisco, Marin County, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Child Custody, Child Support

My Husband Got Custody of Our Kids. Do I Have to Pay Child Support?

July 3, 2018 Judy L. Burger Leave a comment

Some of the most difficult and heart-wrenching decisions to make during a divorce involve children. Who will provide a home for the kids and money to care for them? Regardless of where the kids live, both parents are expected to be financially responsible for their children. This expectation may lead some people to question why they have to pay child support if the other parent has physical custody.

California courts require every parent to be financially responsible for their children.

Child support is the law, but that doesn’t mean it’s easy to calculate. Courts will consider several factors when calculating who should pay child support:

Both parents’ financial circumstances,
The children’s needs,
Whether additional support is needed for special expenses, child care costs, etc. and
The amount of time each parent has physical responsibility for the children.

Custody arrangement can make a difference.

“Time-share” – the amount of time the parent spends with the children – typically takes three forms:

One parent spends more time caring for children. The other parent usually pays child support. Occasionally, though, there’s a great discrepancy between the parents’ income. Generally, the parent with the greater income will pay child support to the parent with lower income. This scenario can be tricky. It is best to consult a family law attorney.
Parents spend about the same amount of time with the kids. The parent with the higher income may pay some child support to the other parent.
Parents of multiple children ‘split’ up the children. For example, in a family with two children, one child lives with mom and one child lives with dad. Child support may be paid depending on the parents’ income or special needs.

What’s best for the children?

It really comes down to taking care of the children’s needs, regardless of their address. Maybe you have questions about child support or are considering separate or divorce. Give us a call at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Cost, including San Francisco, Marin County, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Child Custody

Can I Move Out of State with My Child?

June 17, 2018 Judy L. Burger Leave a comment

Despite everyone’s best efforts, child custody issues arise. Even in cases where the court and parents have agreed on what’s in the best interests for the children, life changes. At some point after a divorce, one parent may want or need to move out of state.

What California law says about move aways.

According to California Family Code 7501:

(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4^th 25, and to declare that ruling to be the public policy and law of this state.

The decision in In re Marriage of Burgess grants a parent the presumptive right to move, not an absolute right. This means the court may or may not allow you to move. The court will consider factors in addition to your custody order before granting or denying your request to move away.

How much time do you usually spend with your child?

The court may consider how much time each parent spends with the child when deciding a move away case. The parent who has physical custody of a child more than the other parent may be more likely to win a move away case. Whether the time spent together is quality time may also influence the court’s decision.

Will the move be detrimental to your child?

Is the move being made for a legitimate reason that may benefit the child? Moving closer to extended family, living in a better neighborhood, and attending a better school are good reasons to move. Moving to be closer to your boyfriend or your favorite beach are not.

However, moving can be tough on a child’s relationship with his or her non-custodial parent, but courts often don’t consider that harmful enough to deny the motion to leave. However, if any of the child’s rights will be restricted due to the move, the court may refuse to allow the parent to move away.

Do you have a plan?

If you’re thinking of moving away, you need to plan ahead. It can be months before a judge grants or denies your request to move.

The attorneys at the Law Offices of Judy L. Burger are highly experienced with child custody issues. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.

California Divorce, Child Custody

Can a Child Choose Who to Live With?

June 5, 2018 Judy L. Burger Leave a comment

Couples in the middle of a divorce face many tough decisions. None may be more difficult, though, than issues involving children. The courts attempt to make custody decisions that are in the best interests of the child or children involved. However, children may want to choose where they live. How will the courts take the child’s preferences into account?

When is a child competent enough to choose where to live?

In California, that’s a bit of a gray area. The Family Code states:

3042.(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

It can be difficult to determine if children are “of sufficient age and capacity to reason.” One 12-year old might be able to make such an important decision, while another is overwhelmed.

Is there a specific age where children can choose?

The California Code specifically states:

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation if the court determines that is appropriate pursuant to the child’s best interests.

Will a child’s choice make a difference?

Children definitely can state their preferences. At the end of the day, however, children don’t always know what’s best for them. Courts look at several factors, including the child’s expressed wish, before deciding the best arrangement for the child.

Talk to an experienced California divorce attorney.

Divorces are never easy. We’re here to help. Please call us at (415) 293-8314 to schedule a confidential appointment.

Child Custody

Handling Custody When a Child Has Three Parents

March 13, 2018 Judy L. Burger Leave a comment

Parentage is not always easy to determine in a divorce. Custody issues may arise when a child’s biological parents separate, then reconcile. Sometimes a third party, not biologically related to the child, takes on the role of parent. When a child has three or more parents, how will courts make difficult, yet important, custody decisions?

When Biology Isn’t Enough.

One court case brought up an interesting situation involving two biological parents who were not married and one parent’s spouse. The case of In re M.C. involved a child whose mother conceived a child with her boyfriend, but married her girlfriend before the child was born. The mother’s wife began serving as parent of the baby. The biological father acknowledged the child and provided some financial support.

The mother separated from her spouse, and then was incarcerated. The child went into foster care. Courts trying to determine custody faced a dilemma. All three parents could be considered to be a parent to the child. However, the mother could not care for the child, and her wife had no biological link to the child. The biological father lived in another state and had little to no contact with the child. California law at that time forced judges to recognize only two parents for a child.

California Senate Bill No. 274 – The Third Parent Law.

After In re M.C., the California legislature proposed and passed a law authorizing a court to determine that a child may have more than two parents. Courts must look closely at parent-child bonds, instead of just the biology of the situation.

Sometimes denying custody to a person with a parent-child bond would harm the child. Court may now may recognize more than two parents. Although three-parent families are most often talked about, the law does not limit courts to determining a specific number of parents.

Custody, Visitation, and Support.

In any divorce proceeding involving children, the courts make determinations based on the best interests of the children. Three-parent family situations are no different.

Allocation of custody between parents, no matter how many, is based factors like the health, safety, and welfare of the child.

Custody and visitation arrangements between parents should focus on providing a stable environment for the children. A parent deemed unfit by the court may be excluded from joint legal or physical custody. Visitation may be limited or supervised for any of the multiple parents.

Learn More About Filing for Divorce.

It doesn’t matter why the child has three parents. What matters, what always matters in child custody issues, is that everything be done with the best interests of the child in mind.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Oakland, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.

Child Custody

Can a Court Require a Deposit of Assets from a Parent to Secure Child Support Payments?

October 16, 2017 Judy L. Burger Leave a comment

It is difficult being a child these days, and it is equally difficult being responsible for the care and maintenance of a child. The responsibility for the care and maintenance of children falls equally upon both of their parents, whether either of them have actual custody of those children or not. There are times when one or both parents neglect this responsibility, and in those cases, the courts will often be required to step in and order the neglectful parent to perform their parental duties.

California courts have many tools available to them to meet their responsibility to make decisions in the best interest of the child. Either or both parents may be ordered to pay child support for their children. If necessary, the courts can get creative to ensure the obligation has been met. In specific circumstances, for a person who has been ordered to pay support who has not paid that support, the court can order the deposit and sale of assets. Cal. Fam. Code § 4610 et seq.

Under California law, if an individual who is responsible for paying child support does not do so for over 60 days, the court can order the deposit and eventual sale of that person’s assets to cover the cost of delinquent child support. This action of the court is one that can be taken if the parent is unable to show that the failure to pay support was not willful or in bad faith, and that the parent did not have the means to make the required child support payments. Cal. Fam. Code § 4611.

An order requiring the deposit and sale of assets is a serious measure for a court to take, but it is not done without the responsible parent having the opportunity to respond to the order and to take actions to convince the court not to enter the order. There are numerous grounds whereby an individual can convince the court not to enter such an order, such as illness, disability, or other circumstances that would make the order unjust, and there will always be a hearing prior to such a decision by the court. Cal. Fam. Code §§ 4610, 4612.

Having children is not a decision to take lightly, and doing so creates a responsibility that stays with you for your lifetime. If you or someone you know is faced with a failure to receive the child support to which you are entitled, a good attorney can help make sure the children you are responsible for are supported as they are entitled to. 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.