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.

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.

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.

Child Support

Can a Court Require Security for Child Support From a Parent?

October 9, 2017 Judy L. Burger Leave a comment

Divorce is a complicated and confusing place to find oneself. Once a child is involved, the confusion and complication become magnified, and no longer is the court solely interested in finding an amicable solution that meets the needs of the spouses. Instead, the court becomes predominantly concerned with what is in the best interest of the child. In most divorce situations involving children, child support is an issue. It is the court’s responsibility to ensure that the child who is supposed to receive this financial support does in fact receive it.

In any type of legal action, there is always a chance that the person who ordered by a judge to do something will choose not to do it. This is no different in the case of child support. As much as we may like to believe that parents will act in the best interest of their children, that is not always the case. Because of this fact of human nature, California courts have the ability, upon a showing of good cause, to order that the parent who is required to pay child support post a security with the court. Cal. Fam. Code § 4012.

The amount of the security that can be required by the court is capped at the total support payment that the parent would pay over the next year, or an earlier time if the child support is scheduled to end in less than one year. These funds are held in an interest-bearing account and are available to the child if the parent who is required to pay fails to do so. Cal. Fam. Code § 4560.

Should the court-mandated child support not be paid, funds can be released from the account when payment is 10 days late, and the court will then require that the parent who is required to maintain the security account replace those funds. Cal. Fam. Code § 4570 et seq.

Once a court is involved in maintaining the best interest of a child, it will exercise the full extent of its ability to ensure that children are properly cared for and that the parents truly share the responsibility of having children. These requirements are designed to look after the best interest of the child, but they are not designed to be punitive in nature. For that reason, if a parent can prove undue financial hardship, the obligated parent may sometimes reduce the amount of money placed into the security fund. Cal. Fam. Code § 4565 et seq.

Divorce can be a messy place to find yourself, but you can rely on the California court system to do its best to ensure that the innocent bystanders – the children – continue to have the support they deserve from both parents.

If you want to learn more about the legal requirements for child support security and how they apply in your case, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.

California Divorce, Child Support

How Are Future Bonuses Handled in California Child Support Cases?

October 2, 2017 Judy L. Burger Leave a comment

The end of a marriage is often more than just two adults deciding that their relationship is at an end. Often, instead, the end of a marriage is also the beginning of a new relationship between two adults as they learn to navigate the world tied to an ex-partner and as co-parents to their children. When a marriage ends and there are children involved, the question is no longer about how the relationship ends, but instead how the children are taken care of.

In a divorce with children, one of the court’s main concerns becomes the best interest of those children. The court is interested in ensuring that the children are properly supported, a responsibility that falls equally to both parents. The court has the ability to ensure this occurs by ordering payments in any amount necessary for the support, maintenance, and education of the children.

The support that the court orders will be based upon maintaining the same standard of living for the children, regardless of which of the parents are being assessed. In determining this standard, the appropriate amount will take into consideration all income of both of the parents, and it includes any bonuses that either spouse receives regularly.

One parent’s income may be irregular as it comes, in part, from bonuses or commissions. A parent cannot shield or hide a portion of his or her income from being used by claiming it is a bonus, especially if that bonus is a regular part of his or her annual income.

In fact, California Family Code § 4064 specifically states that the “court may adjust the child support order as appropriate to accommodate the seasonal or fluctuating income of either parent.” Often the court will make a percentage determination—ordering the parent to provide the child with a percentage of all future bonuses. This allows the court to take into account the inconsistent and prospective nature of such income. The courts will not allow a child to be disadvantaged simply because a parent’s income does not come on a regular schedule or amount.

If you or someone you know is facing divorce and have minor children in need of support, the help of an experienced family law attorney can make a hard and potentially confusing experience easier to navigate. If you’re in this position, it is in your best interest to consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will make sure you successfully navigate California child support law. Make the call today to learn how our attorneys can help: (415) 293-8314.

Child Support

What Deductions Are Made from Gross Income for Child Support Purposes?

August 21, 2017 Judy L. Burger Leave a comment

Child support is a vital decision in family law matters. A court examines the income of both parents when determining child support payments.

Income considered will be each parent’s annual gross income; however, some items and expenses can be subtracted for the purpose of calculating child support. California Family Code § 4059 lists these possible deductions.

For instance, income tax liability is deducted from annual gross income. This does not mean that taxes withheld from a parent’s paycheck will be deducted. The income tax liability is the tax an individual is responsible for paying to the IRS or the state after completing his or her annual tax return filings.

Although income tax withheld from one’s paycheck is not deductible from annual gross income, Federal Insurance Contributions Act (FICA) withholdings are deducted.

Other work-related expenses may be deducted from annual gross income for the purpose of determining child support. When this happens, work-related expenses are reviewed to make sure that the expenses were truly necessary or required. Such deductions can include mandatory union dues, mandatory retirement benefits, and/or health insurance premiums (including health insurance premiums for any children that the parent is required to insure).

If a parent is responsible for a child or children of a previous relationship, any child support payments that are made on behalf of that child may be deducted from the parent’s annual gross income, as well. It is important to note that only payments actually made can be deducted. Child support payments may have been ordered but not actually paid—if this is the case, that amount will not be considered deductible from income.

In some cases, a parent can request a deduction for a hardship. If the court determines that a hardship is applicable, the approved calculated amount of the hardship is deducted from that parent’s annual gross income.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer. 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.

Child Support

What Is Included in Income for the Purpose of California Child Support?

August 14, 2017 Judy L. Burger Leave a comment

The state of California takes into consideration the income of both parents when determining child support payments. Sources of income will vary from person to person.

Section 4058 of the California Family Code provides that annual gross income can come from a combination of “commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding.”

Other sources of income will include that from a business owned by the individual after subtracting the expenses of the business from the revenue. A court may also consider employee benefits or self-employment benefits as part of a parent’s annual gross income if those benefits come in exchange for—or at the expense of—potential income for the receipt of those benefits.

There is income that is not taken into consideration for the determination of child support, as well. Child support received to benefit children from a previous relationship is not considered income for determining support for the child(ren) of the current relationship. Other items that are not considered include public assistance benefits received based on need.

Sometimes, a parent will attempt to avoid being ordered to pay child support by quitting his or her job or taking a lower-paying position or an intentional pay cut. When a parent takes these steps to avoid paying child support, the court may take into consideration the income of that parent’s new spouse or even a new partner to whom the person is not married.

A court may also hold such a parent accountable by evaluating that parent’s income potential. The court can look at how much income that parent could have made. This is known as imputing income.

If you want to learn more about child support matters in California, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.

Child Support

How Is Temporary Child Support Calculated?

June 19, 2017 Judy L. Burger Leave a comment

Both parents have a duty to support their minor children. If you and your co-parent have started living separately, you may want or need child support in order to provide for your children. You may ask the court for a temporary child support order in a pending divorce, paternity, or domestic violence case with your co-parent.

A child support order requires one parent to pay to the other parent an amount for the support of the children. To obtain a temporary child support order you must have a pending family court case, but you don’t have to wait until all issues are resolved for the court to order temporary child support. The temporary child support order is a child support order in effect until the court enters a final order resolving all current matters in the case. You may ask for a temporary child support order at the beginning of your case, such as when you file the petition for divorce or your request for a domestic violence restraining order, or you may request temporary child support at a later point while the case is pending.

Under California law, a formula is used to calculate the child support guideline. The child support guideline is the minimum amount of child support recommended by law. Parents wishing to deviate from the child support guideline must state a valid reason for doing so.

In California, the “top priority” in setting child support is the “interests of children.” In fact, under California law, a parent’s “first and principal obligation” is to support his or her children. The guiding principles that California courts must use when determining child support include not only income but also parenting time-share and responsibility, the parents’ standards of living, and the children’s financial needs.

The child support guideline is calculated under California Family Code § 4055. California Family Code § 4055 sets out a mathematical formula that considers each parent’s net disposable income and the amount of visitation with the children. Net disposable income is figured by subtracting from gross income items such as federal and state income taxes, mandatory union dues, and health insurance premiums among others. The court then applies an additional factor to the child support guideline depending on the number of children.

In addition to the child support guideline, the court may also order payment of add-ons. California Family Code § 4062 lists two types of add-ons: mandatory and discretionary. Mandatory add-ons include reasonable uninsured medical, dental, and visions expenses of the children and the childcare costs incurred in order for a parent to work or obtain work-related training or education. Discretionary add-ons include items such as expenses for a child’s private school or special needs or travel expenses for visitation with the other parent.

Online calculators are available for calculating temporary child support, but using the calculator requires an understanding of tax data, such as alternative minimum tax adjustments, and California Family Code provisions, such as whether you qualify for the low-income adjustment or factoring in costs for “hardship children.” Calculating temporary child support is complex. To best serve your needs and the interests of the children for whom you are seeking a temporary support order, contact an attorney experienced in family law.

If you are facing a divorce proceeding, especially one that involves temporary child support, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings. Call today to see how we can help you: (415) 293-8314.

California Divorce, Child Support

Can I Get Child Support While My Divorce Proceedings Are Pending?

June 5, 2017 Judy L. Burger Leave a comment

One of the golden rules in California divorces that involve children is called “the best interest of the child.” It is therefore no surprise that child support may be awarded during the pendency of a divorce proceeding.

Perhaps the toughest period of time for couples who are divorcing is between separation and the entry of a final divorce decree. Typically, one spouse informs the other of an intent to end the marriage, and then thing start to fall apart. There are many details to address, such as living arrangements and finances. And when children are involved, these issues can be even more difficult.

California Family Code § 3600 authorizes a presiding court to order “either or both parents to pay any amount necessary for the support of the child . . ..” Such an order may be made during the pendency of a divorce or legal separation proceeding. The order continues in force until terminated by the court or until another provision of state law renders the child ineligible for support (e.g. emancipation). In addition, the award would not be enforceable if the couple began living together again.

The decision of whether temporary child support should be ordered depends on the same issues as when a permanent child support award is made. Custody and the incomes of the parties are the primary areas of focus while keeping the best interest of the child in mind.

Many times, the couple mutually agrees to where the child will live during separation and how their finances will be handled. In those cases, no intervention by a court is needed, or the mutually agreed to terms may be submitted for approval by the court. Family Code § 3604 provides, however, that any order for support during the pendency of proceedings does not “prejudice the rights of the parties or the child with respect to any subsequent order which may be made.”

If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will help you make sure your children receive their necessary support. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce, Child Support

A Way to Secure Payment of Future Child Support: Court-Ordered Asset Deposit

April 17, 2017 Judy L. Burger Leave a comment

Divorced parents sometimes have a hard time collecting child support payments on a regular basis. The obligated spouse may or may not pay on time and may even go for extended periods of time without making the ordered payments. This can place a severe hardship on the spouse who shoulders the parenting responsibilities. Fortunately, California state law provides an option for that parent to force her ex-spouse to live up to his obligation.

The California Family Code provides that an obligated parent who is 60 days or more delinquent in child support payments may be required to place on deposit assets that will ensure timely payments. The assets are deposited with a court-designated entity and may ultimately be used to satisfy the amount in arrears. The obligated parent may also be required to pay fees and costs to the designated holder of the assets in connection with management or liquidation of the assets.

In making a request for an order requiring the deposit of assets, the requesting parent must declare under penalty of perjury that the obligated parent owes an amount equivalent to 60 days of payments. Once made, the court will provide notice to the obligated parent, as well as an opportunity to be heard. The court may also issue an immediate restraining order instructing the obligated parent not to dispose of any assets except through the normal course of business. The parent may also be required to document any extraordinary expenses after issuance of the notice.

To avoid an order to deposit assets or to prevent the liquidation of deposited assets, an obligated parent must prove that the non-payment of support was not willful and without good faith. He must also show that he did not have the ability to pay. He may also defend against an order by showing one of the following circumstances:

a change in child custody;
a motion pending for reduction of child support based on reduction of income;
illness or disability;
unemployment;
a serious adverse impact on members of his immediate family who reside with him that would outweigh the harm to the custodial parent and children; and
a serious impairment of the obligated parent’s ability to earn income.

The amount of assets required for deposit must be the equivalent of one year’s worth of child support payments or $6,000, whichever is less. If the obligated parent continues to be in arrears and fails to make a reasonable effort to catch up within a court specified time-frame, the designated holder of the assets on deposit may use the assets to pay the amount in arrears. This may involve the use of cash or the sale of assets such as personal property.

In many cases, the threat of filing a request for court-ordered asset deposit is enough to bring a delinquent ex-spouse around. Hopefully, that is most often the case. If you need assistance collecting child support payments, contact the attorneys at the Law Offices of Judy L. Burger. We have extensive experience in family law matters and can help you determine whether court-ordered asset deposit is the right approach. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

California Divorce, Child Support

Can My Child Stay on My Spouse’s Health Care Coverage after Divorce?

April 3, 2017 Judy L. Burger Leave a comment

The divorce of a child’s parents does not affect that child’s right to maintain health care coverage under one of the parent’s insurance plans. In fact, California law prohibits an employer or insurer from denying enrollment or coverage for a child based on certain outcomes of a divorce. Specifically, coverage may not be denied because the child is not claimed as a dependent for tax purposes or the child does not live with the parent or within the insurance coverage area.

Typically, as part of a divorce involving children, a court will include an order that one parent or the other maintain or provide health insurance coverage for the children, provided that the insurance is available at a reasonable cost. The amount that parties pay for insurance for themselves and their dependents (even new spouses and stepchildren) is an expense that is factored into child support calculations.

Parents who have been ordered to maintain health insurance for children must provide the other parent with the health insurance information. Conversely, the parent not obligated to provide coverage must advise the obligated parent whether or not she has health insurance through her employer or other group insurance coverage. An obligated parent who is paying child support through a local child support agency (“LCSA”) must also provide documentation to the LCSA of such coverage.

California law also requires courts to include in their child support orders a provision that requires the parent providing coverage to affirmatively seek the continuation of coverage when a child reaches a disqualifying age. Such continuation, however, must be pursuant to other provisions of law that require continued coverage if the child is unable to work due to a physical or mental disability or is otherwise primarily dependent on the parent for support and maintenance.

If you want to learn more about health insurance for children of divorced parents or child support matters in California, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.