Category Archives: Visitation

Child Custody, Child Support, Visitation

What Does It Mean to Establish Paternity?

What Does It Mean to Establish Paternity
Most people know that establishing paternity relates to naming someone as a child’s legal parent. However, many people are less clear about why it is important to establish paternity, also known as parentage.

When a child’s mother is married at the time the child is conceived or born, the person to whom she is married is automatically presumed to be the other parent, unless the court finds otherwise based on evidence before it. This presumption also applies to certain couples in registered domestic partnerships, as well as to situations in which the second parent openly treated the child as his or her own.

However, if the mother is not married at the time the child is born, the child does not have a second legal parent. In these cases, California provides two simple ways to establish parentage: a formal declaration of paternity or a court order.

In either case, once someone is established as a child’s legal parent, he or she gains both rights and responsibilities relating to the child. Only after parentage is established may that parent exercise parental rights, such pursuing custody and visitation. Additionally, until parentage is established, a person cannot be held legally responsible to pay child support.

While custody, visitation, and child support are all important reasons to establish parentage, there are many others:

  • The child’s right to inherit from the parent;
  • The child’s right to certain benefits related to the parent, such as Social Security and veteran’s benefits;
  • The child’s ability to access family medical records and history;
  • The right to recover certain government-provided benefits on behalf of the child;
  • The presence of the person’s name as a parent on the child’s birth certificate; and
  • The child’s ability to recover as a health or life insurance beneficiary from the person.

In addition to these concrete benefits, California law recognizes that “knowing one’s father is important to a child’s development.”

Declaration of Paternity

The simplest way to establish parentage is through a declaration of paternity signed voluntarily by both parents. This is a state-created a form that has the same effect as a court order when it is filed with the California Department of Child Support Services. By law, birthing hospitals and prenatal clinics must provide a voluntary declaration of paternity to an unmarried mother. The declarations are also available for free “at all local child support agency offices, offices of local registrars of births and deaths, courts, and county welfare departments.”

A parent who signs a declaration of paternity waives several legal rights, such as the right to have a court decide the issue of paternity and the right to legal representation in paternity proceedings.

Court Order

A court order is the second way parentage may be established when a mother is unwed at conception or birth. Either parent may petition a court to establish parentage. For example, a mother may ask a court to enter an order establishing a biological father as her child’s legal father. After this is done, the mother can pursue child support from the father. Similarly, a biological father may ask a court to establish him as the father, after which he may pursue custody or visitation with the child.

Parentage is the basis for many rights and responsibilities under California law. If you are involved in a parentage dispute, 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.

Child Custody, Visitation

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

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, Visitation

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

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.
Visitation

Different Types of Child Visitation in California

Different Types of Child Visitation in CaliforniaDivorces and separations are replete with hot-button issues. Perhaps no issues are more frequently contested, however, than child custody and child visitation. In a prior blog, I discussed the different types and aspects of child custody. This blog will focus on visitation, which is typically granted to the parent who has the children less than half of the time.


A visitation order spells out how the child’s time will be managed. For example, a visitation order might address where a child would spend birthdays, Mother’s Day, Father’s Day, major holidays, and summer break.


The California Legislature has declared that the primary concern of courts in making custody and visitation decisions is the “health, safety, and welfare of children.” However, an additional public policy of the state is “assur[ing] that children have frequent and continuing contact with both parents.” The law specifically “encourage[s] parents to share the rights and responsibilities of child rearing” to meet this second goal, unless regular contact is not in the best interest of the children. Custody decisions are not made on the basis of a parent’s marital status, lifestyle, religious beliefs, or sexual orientation.


There are four types of visitation orders in California: (1) reasonable visitation; (2) scheduled visitation; (3) supervised visitation; and (4) no visitation.


A reasonable visitation order leaves decisions about how the parents will share the children’s time largely to the parents. These orders provide the parents with the ultimate flexibility; however, if the parents do not get along or if future disagreements may occur, these are not a good choice for the family.


Scheduled visitation provides clear direction to the parents about how the children’s time will be spent. These orders are ideal for parents who may not get along or communicate well because they provide clear expectations. If you’ve ever heard someone say that it was “their weekend” with their children, the court probably ordered scheduled visitation in their divorce. These orders dictate everything from birthdays and major holidays down to evenings and weekends.


Courts use supervised visitation orders when necessary to protect the health, safety, and welfare of children. In supervised visitation, the parent still gets to spend time with the children but only under the supervision and presence of another adult or, sometimes, a professional agency. Supervised visitation may be used in situations like the following:

  • Allegations or a history of abuse, neglect, or domestic violence;
  • A nonexistent or weakened parent-child relationship;
  • Parental mental illness or substance abuse.


In rare cases, a court will order no visitation for a parent. This is only done when visits would not be in the best interest of the children, such as when a parent refuses to refrain from alcohol or drugs while visiting with the child.


Remember that child support is a matter separate from child visitation. That means that a parent cannot deny visitation to another for nonpayment of support; likewise, a parent cannot deny payment because the other refused visitation.


An experienced family lawyer can ensure that you understand the issues that might impact child visitation and help you present them in the best light possible to a judge. The attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California and will represent you aggressively. Please contact us today at (415) 259-6636 to learn more.

 

Child Preferences Regarding Custody and Visitation
Child Custody, Visitation

Child Preferences Regarding Custody and Visitation


Child custody in divorce cases can sometimes be hotly contested. Traditionally, courts have made decisions based on the information presented by the parties and their lawyers. The wishes of the children were either not expressed or expressed only through the parents. Since 2012, however, children are permitted to testify regarding custody and visitation arrangements if they so wish.


California Family Code § 3042 provides that if a child is of “sufficient age and capacity to reason,” her wishes will be given due weight. The law makes a distinction between children less than 14 years of age and those 14 or over. If 14 or older, the court is required to permit testimony if the child wishes unless it  determines that it is not in the best interest of the child to allow the testimony. Children under 14 are not prevented from testifying, but the court must find both that the child has the capacity to reason and that the opportunity to testify is in her best interest.


Some parents may be concerned about the opportunity for their children to weigh in on the custody and visitation arrangements of their divorce. The court, however, has both guidelines for hearing from a child and discretion in applying those guidelines.

California Rules of Court 5.250 provides instruction for the court for: 1) determining whether the child wishes to address the court, 2) determining whether addressing the court is in the child’s best interest, and 3) receiving the child’s testimony and other input.


The parties to a divorce or their counsel may inform the court of a child’s desire to address the court. In addition, the following persons have a duty to inform the court of a child’s desire to testify:

  • Counsel appointed to represent the child;
  • A child custody evaluator;
  • A child custody investigator; and
  • A child custody recommending counselor.


To determine whether it is in the child’s best interest to testify, the court must consider the following factors:

  • Whether the child is of sufficient age and capacity to reason;
  • Whether the child is of sufficient age and capacity to understand the nature of the testimony;
  • Whether the child is at risk emotionally if permitted or denied the opportunity to address the court;
  • Whether the child may benefit from addressing the court;
  • Whether the child’s anticipated testimony will be relevant to the court’s decisionmaking; and
  • Whether there are any other factors weighing for or against the child addressing the court.


The court has wide discretion in facilitating the child’s testimony. It can occur in open court as a regular witness, or the courtroom may be closed to the public. It might also be conducted in the judge’s chambers with or without the parties and counsel present. The judge is also empowered to reserve to himself the posing of questions on behalf of the parties. The purpose of these guidelines and the wide discretion granted is to ensure the comfort of the child and, thus, the value of the testimony proffered.


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.

California Divorce, Visitation

As a Grandparent, What Rights Do I Have to Visitation?

As a Grandparent, What Rights Do I Have to Visitation?
Grandparents can be a stabilizing force for children whose parents divorce or legally separate. Indeed, the California Legislature has recognized this, providing affirmatively for grandparent visitation.


Sections 3100-3105 of the California Family Code describe the circumstances under which grandparents may obtain visitation with their grandchildren.


When One Parent Is Deceased


It is easiest for a grandparent to obtain visitation when one of the parents is deceased. In such an unfortunate case, a court need only determine that grandparent visitation is in the best interest of the child.


However, a grandparent cannot use this provision of the law if the child has been adopted by someone other than a stepparent or another grandparent. Likewise, if a grandparent previously obtained visitation under this section of the law, the visitation automatically terminates if the child is adopted by someone other than a stepparent or another grandparent.


Other Cases of Grandparent Visitation


If both parents are alive but divorced, a grandparent who wants visitation with his or her grandchild must proceed under a different law. Under that law, before reasonable grandparent visitation may be granted, a court must do two things: (1) find that the two have had a relationship in the past that “engendered a bond” between them, rendering visitation in the child’s best interest; and (2) balance the child’s interest in grandparent visitation with the parents’ right to “exercise their parental authority.” Cal. Fam. Code § 3104.


However, a court may not order grandparent visitation when the parents are still married unless one of the following six circumstances exist:

  • The parents are either permanently or indefinitely separated;
  • The whereabouts of one of the parents have been unknown to the other parent for at least one month;
  • One of the parents joins the petition for grandparent visitation;
  • The child does not live with either parent;
  • A stepparent has adopted the child; or
  • One of the parents is either in jail or has been institutionalized.

In these limited circumstances, grandparent visitation may be granted; however, if the supporting circumstance ends, either parent may successfully move to have grandparent visitation terminated.


The attorneys at The Law Offices of Judy L. Burger have extensive legal experience in family law matters. We have handled all types of visitation requests, including those involving grandparents. Contact us today at (415) 259-6636 to learn how we can help you in this area.

Child Custody, Visitation

I Don’t Want My Ex to Move Away with My Child

Home SoldIn today’s highly mobile job market, employees are often faced with either moving or losing a job altogether.  This creates an especially difficult situation after a divorce.  Depending on the distance involved, one parent may no longer be able to exercise frequent visitation. Generally speaking, a parent with sole physical custody of a child can move away unless the other parent can prove in court that the move would cause irreparable harm to the child.  On the other hand, if parents share joint physical custody then the parent who wants to move may be required to prove the move will serve the child’s best interest. The laws that regulate these situations are complicated and like most laws, there are exceptions.  The first thing you should do if you find yourself on either side of this dilemma is contact a qualified family law attorney.  Your attorney can explain the current law and help you decide which steps to take next. If you are worried that your ex-spouse may move away with your child, or if you are the one who needs to move to accept a job or start a new life, contact the Law Offices of Judy L. Burger today. Judy L. Burger is known for her tenacious representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. Call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
Child Support, Visitation

Changing Child Support or Visitation in California

Family Law Changing a child support or visitation order is a common issue in family law. Usually driven by a change in the life of one of the parents, there are basically two ways to go about making these changes. If the parents can agree to the changes without going to court, you can file your agreement with the help of an attorney. If you are agreeing to change child support, the attorney will help you file a Stipulation to Modify Child Support and Order. To make changes to visitation or custody they will assist you with filing a Stipulation for Custody and/or Visitation of Children. If you and the other parent can’t reach an agreement, you will need to take the other parent back to court. Since the court will consider many factors before making a decision, you should speak to a qualified California family law attorney before filing any documents with the court.  Your attorney will know which factors should be highlighted to give you the best chance of successfully getting your child support or custody order modified. At the Law Offices of Judy L. Burger, we will employ the strategy most likely to achieve the best outcome possible for you in your divorce or custody proceedings.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a divorce or custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
California Divorce, Child Custody, Visitation

Protecting Children from an Unfit Parent in California

Supervised Visitation in California
Supervised Visitation in California
Divorce is usually a difficult time for families, but can be viewed as a process necessary to move to a more fulfilling, happy, and stable phase of life.  When a divorce is the result of one parent’s terrible job of being a parent, there is no need to make the children continue suffering.  It may be necessary to protect the children from being alone with a parent who is not fit to have unsupervised visitation. In California, a court may find that a parent is unfit to be alone with his or her children and require visits to be supervised by a third party.  Some common reasons a court may order supervised visitation include the following:
  • To give the visiting parent a chance to address specific issues;
  • To help  reintroduce a parent and a child after a long absence;
  • To help introduce a parent and a child when there has been no existing relationship between them;
  • When there is a history or allegations of domestic violence, child abuse and neglect, or substance abuse;
  • When there are parenting concerns or mental illness; or
  • When there is a threat of abduction by the non-custodial parent.
In addition to establishing supervised visitation, a court may also determine when, where, and how long visitation will take place, along with who will supervise visits.  If you are going through a difficult divorce and have concerns over the safety of your children during post-divorce visits, contact us immediately to review your case and help you determine the best strategy for protecting your children. Likewise, if you feel visitation is being wrongfully withheld due to unfounded allegations that you are an unfit parent, contact us to discuss your options and help you restore your healthy relationship with your 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 San Francisco Bay and Sacramento areas. If you are a parent with a visitation or custody issue, call us today to learn more about how we can help. Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.
California Divorce, Visitation

A California Court Can Give Grandparents Visitation in the Right Circumstances

Grandparent visitation
Grandparent visitation
A photo popped up on my Facebook feed recently with a caption that said, “Grandchildren are your reward for not killing your children.”  While some parents may be clinging to this hope during their kids’ teenage years, others are wondering when they will see their grandchildren after a son or daughter’s divorce. Fortunately, California law allows grandparents the right to petition the court for visitation. The general standard for a court to order grandparents’ visitation requires grandparents to show the following evidence:
  1. The grandparents must show that      there was a pre-divorce relationship between the grandparents and a grandchild      that has “engendered a bond.”  This means that there is such a bond      between grandparent and grandchild that continued grandparent visitation      is in best interest of the grandchild, and
  2. The grandparents must show that it      is in the best interest of the child to have visitation with the      grandparents, and that such best interest can be balanced with the parents’      rights to make decisions about their child.
If you are a grandparent grieving your child’s divorce and the loss of regular visitation with your grandchild, contact an experienced California family law attorney as soon as possible.  The risk is that if you wait too long, a court may find that any bond which existed before the divorce deteriorated while you rested on your rights.  Contact us today without delay. The Law Offices of Judy L. Burger can assist you in fighting for your rights as grandparents.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. If you are a grandparent with a visitation issue, call us today to learn more about how we can help. Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.