Parents may be able to mutually agree upon a parenting plan for their children. Sometimes, though, a judge has to decide how child custody will be handled before a divorce is finalized. No matter how or when the decisions were made, there may come a time that parents have to modify child custody arrangements.
Making the Decision
Parenting Plans and child custody arrangements typically are made keeping the best interests of the child in mind. But people and circumstances change. Some of the common reasons for altering a child custody arrangement include:
- Refusing to allow the non-custodial parent to contact or visit the children;
- Putting the children in an unsafe or dangerous environment;
- Relocation of the non-custodial parent.
In addition, children may ask for a change in custody. Children over the age of 12 may be permitted to tell the judge who they want to live with.
Once one or both parents decide that changes should be made, the court becomes involved.
Filing the Paperwork
The parent requesting the change will file a Request for Order with the court. An additional form – the child Custody and Visitation (Parenting Time) Application Attachment is optional but may be helpful. Remember that you need to show a significant change in circumstances or some compelling reason to modify child custody arrangements.
After filing the Request for Order, you will be given a date to appear in court or to meet with a mediator. Court proceedings can be complicated, especially if the parents are unable to reach their own agreement.
Attending a Hearing
If parents are unable to arrive at a revised custody plan through mediation, they may have to appear in court. The judge may take limited testimony but may rely heavily on the documents filed with the clerk. After making a decision, the judge signs an order altering the terms of the custody arrangement.
It’s Possible to Modify Child Custody Arrangements
However, the court must see significant reasons to change custody before doing so. As always, California courts consider the best interests of the child in making any decisions.To discuss how to modify child custody arrangements, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in Beverly Hills, San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.
Travelling with a child can be difficult. Plans may have to be arranged around the child’s schedule and, of course, your luggage may be stuffed with kid-friendly items. Taking a trip outside the United States requires even more planning, especially if the child needs a passport. Divorced parents may find it difficult to get passports for their children due to the Two-Parent Consent Law.
The Two-Parent Consent Law
This law, found in 22 U.S.C. 213n and 22 C.F.R. 51.28, applies to a parent seeking a passport for minors who are age 16 or younger. Under the Two-Parent Consent Law, both parents or guardians must apply for the passport and provide evidence of parentage or legal guardianship.
If only one parent applies, that parent must provide at least one legal document showing the parent has sole custody of the child such as:
- A birth certificate, Consular Report of Birth Abroad of a Citizen of the United States, or Certification of Report of Birth giving the name of only the parent applying for the passport.
- A death certificate for the non-applying parent.
- An adoption decree naming only one parent for the child.
- An order granting sole custody to the applying parent.
- An order terminating legal custody of the other parent.
When parents are granted joint custody, both parents generally must apply for the passport. For humanitarian or emergency reasons, sometimes the circumstances need a different approach.
Exceptions to the Two Parent Consent Rule
When a parent cannot supply the documentation listed above, a passport may still be issued if the parent can submit:
- A court order that allows the parent to travel with the child;
- A written statement or notarized written consent from the other parent stating that the other parent cannot give consent for the child’s passport.
The applying parent also may submit a statement explaining any exigent or special circumstances that would allow a passport to be issued with the consent of only one parent.
Will the Two-Party Consent Law Derail Your Travel Plans?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, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon.
Nancy knew when she married Mark that he was both a United States Citizen and a citizen of Nigeria. He had been born in the U.S., but his parents raised him in their home country. She did not know how Mark’s dual citizenship would affect their divorce a few years later.
Does it matter where the divorce proceeding takes place?
Anyone who considers divorcing a spouse with dual citizenship owes it to themselves to do a little research. Choosing to file in the country with the most favorable divorce laws could make a huge difference, especially when spousal support and child custody are involved.
Nancy may be able to file for divorce in the United States if she meets applicable residency requirements. For example, California law requires the filing party to live in California for the 6 months prior to filing. The filing party is also required to live for at least 3 months in the county in which they plan to file.
What if one spouse moves their children to their home country without permission?
In this situation, a parent who is also a U.S. citizen could reach out to the United States Department of State. However, it may also be necessary to start working through the courts of the country to which the children have been moved.
How can court orders be enforced?
The court handling the divorce proceeding has the authority to hand down orders. The problem may be enforcing orders in another country. The U.S. State Department may be able to help. However, it’s likely that a person based in the U.S., for example, will have to retain counsel in their ex-spouse’s country.
Plan Ahead for Dual Citizenship Issues.
Dealing with this type of issue can take divorce to a whole new level. This is hard to say, but the best time to plan for this type of issue is before the marriage takes place. Actions that seem harmless with the Wedding March still ringing in your ears may have serious consequences if it becomes time to divorce.
Contact a California attorney to learn 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.
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.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.
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.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.
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.
One of the first things that happens when a couple decides to split up is that they start living in separate places. That seems like the normal course of events. And one of the common issues you hear about when a divorce is finalized is child custody arrangements. But what about child custody during the period of separation? Sometimes, that period can last for a long time.
The number one consideration in child custody under California law is the “best interest of the child.” This is true whether a court must make a determination while a divorce is pending or when it is actually granted.
A separating couple has the right to decide how to manage child custody and rearing. Similarly, they have the right to come to terms on child custody that will endure even after a divorce is granted. The difference is that a court must order the arrangements when the divorce is finalized. Prior to that point, a court will not be involved in child custody arrangements unless asked to do so by either or both parties.
According to California law, when a petition for divorce is filed, it may be accompanied by a petition for a temporary custody order. A petition for custody may also be filed any time after the filing of the divorce petition. If both parties are in agreement as to the custody of the children, the court will usually enter an order granting the temporary custody—so long as their agreement is in the best interest of the child. If the parents do not agree, the court is empowered to grant a temporary custody order based only on the requesting party’s petition. Within 20 days, however, the court will hold a hearing to allow both parents to argue about the appropriateness of the order.
Granting an order of custody based only one party’s request (known as an ex parte order) may only be made when it has been shown that immediate harm to the child may occur or that the child will be removed from the state. In that regard, when granting an ex parte custody order, the court is also required to enter an order to restrain the parent gaining temporary custody from removing the child from the state during pendency of the custody issue.
The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including temporary and permanent child custody orders. We can help you put your best foot forward in advocating for the best interest of your children. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.
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.
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.
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.”
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.