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.

What Factors Do California Courts Consider in Setting Child Support?
Child Support

What Factors Do California Courts Consider in Setting Child Support?

Parents have a mutual duty to support their minor children. Ideally, parents come to an acceptable agreement about financial support, an agreement that the court will approve. However, if they cannot or will not do so, a court must decide whether child support will be paid from one parent to another.  

The California State Legislature has found that the “state’s top priority” in setting child support is the “best interests of children”. For this reason, California law sets forth guiding principles that courts must use when determining child support. These principles allow for both parents’ standards of living to be considered. They also allow for child support to be used to reduce significant disparities in the parents’ living standards.  

The factors considered in determining child support are set by law in California. A formula is used that takes several factors into account:
 
  • Both parents’ actual income;
  • The higher-earning parent’s net monthly disposable income;
  • The percentage of time that each parent will have “primary physical responsibility” for the children; and
  • The combined net monthly disposable income of each parent.
In addition, California courts must take into account the parties’ respective health insurance coverage. There is a proportional increase in the amount of support for each additional child.  

Once the amount of child support is established using the formula, it may be affected by other issues, including but not limited to the following:  

  • Extraordinarily high income of one parent;
  • Different time-sharing arrangements;
  • The amounts spent by each parent on housing; and
  • Special medical needs of the children.
In most cases, the income of the paying parent’s new spouse or partner is not taken into account as actual income. However, it may be considered if a parent quits his or her job to reduce income or if a parent attempts to hide income. 

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.  
How Is Available Income Determined for Child Support Orders if a Party Is Self-Employed?
Child Support

How Is Available Income Determined for Child Support Orders if a Party Is Self-Employed

California law mandates that one of the predominant factors in setting the amount of child support is the actual income of the parents. As you might imagine, this can be very difficult if one or both of the parents are self-employed.

Because parents have a mutual duty to support their children, the parties to a divorce proceeding must disclose all aspects of their finances. All assets, liabilities, obligations, earnings, accumulations, and expenses must be disclosed. Assets must be disclosed even if they are owned as separate property. By law, self-employment benefits may be considered by a court in determining a parent’s gross annual income.

Full disclosure is critical to allow the family court to make a proper order of support for the children’s needs. A statutory process is in place to ensure that proper disclosures are made through the submission of certain forms. These forms include a Schedule of Assets and Debts, as well as an Income and Expense Declaration.

When a party is self-employed, however, he or she has control over documents that would be used to establish his or her actual income. These documents might include profit and loss statements, loan applications, credit card statements, and reports showing monthly expenses. The danger of nondisclosure is enhanced in these situations because the business owner has power over the creation and retention of these documents.

Forensic accountants may be used when self-employment is an issue in a family law matter. These specialized accountants are trained in both sound accounting practices and investigative skills. They specialize in reviewing financial documents with an eye toward tracing funds and locating missing funds or documents. They also testify in court about their findings, to ensure the proper amount of income is attributed to a self-employed parent.

When the actual income of a self-employed parent is an issue, it is critical to hire an aggressive family lawyer who has significant experience in business matters. Judy Burger comes from a business background and has worked extensively in highly contested divorce cases involving forensic accountants. Call her today at (415) 259-6636 to learn more about how she can help you.
How Is My Child Support Award Affected by My Spouse's Refusal or Inability to Work?
Child Support

How Is My Child Support Award Affected by My Spouse’s Refusal or Inability to Work?

If you are going through a divorce and your spouse does not work or refuses to work, you may be concerned about the adequacy of your child support award. Child support is designed to ensure that the needs of California children are kept front and center, despite the separation or divorce of their parents. The law recognizes that both parents have a duty to contribute to their children’s support. This includes, in some circumstances, charging unemployed or underemployed parents with income earning capacity even though they may not be working at all. This is called imputing income. Section 4058(b) of the California Family Code states that “the Court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children”. In making this determination, courts will consider three factors:
  • A parent’s ability to work;
  • The opportunity of a parent to work; and
  • Whether a parent working is consistent with the best interest of the children.
The first factor is whether a parent is able to work. This may be restricted to differing degrees. For example, a parent disabled from working in any job will be considered differently than a parent disabled only from working in his or her chosen field. If the ability to work is only partially restricted, a family court may impute earning capacity to the disabled parent. Similarly, if a parent refuses to work or hasn’t worked for a long time, he or she may be perfectly capable of working, given the motivation to do so. The second factor in determining whether earning capacity will be imputed to a parent is opportunity. In other words, are there available jobs that the unemployed parent is capable of performing? If a parent is able to work and has the opportunity to do so, the final factor is whether it is “consistent with the best interests of the children” for that parent to work. Examples of issues that might make a parent working inconsistent with the children’s best interest include a parent taking care of an infant or special needs child. Ideally, there is no dispute about a party’s true ability to work. However, when this issue is contested, there are a few tools that may be used to obtain an objective determination of a party’s true limitations. The first tool is called an independent medical examination (“IME”). This is a medical examination performed by an independent health care provider to determine the ability of a person to work. A second tool that may be available is the use of a vocational expert to assess the ability of a party to work, as well as the opportunities he or she may have for gainful employment. If you are concerned about your spouse’s refusal or inability to work, or if you believe your spouse is underemployed for the purpose of depressing his or her income, you need an aggressive attorney to evaluate the facts of your case and determine your options. At the Law Offices of Judy L. Burger, we recognize the importance of a proper child support order to the well-being of your children. We specialize in difficult custody and support issues, and we’ll put our experience to work for you. Call us today at (415) 293-8314.