Can a Child Choose Who to Live With?
California Divorce, Child Custody

Can a Child Choose Who to Live With?

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.
Handling Custody When a Child Has Three Parents
Child Custody

Handling Custody When a Child Has Three Parents

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.

How is Child Custody Handled During Divorce Proceedings?
California Divorce, Child Custody

How is Child Custody Handled During Divorce Proceedings?

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.

Child Custody, Domestic Violence

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

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?

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

What Happens at a Mandatory Child Custody Mediation?

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?

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?

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.

Child Custody

False Allegations of Child Abuse in California Custody Battles

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.

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.