Will a California Judge Listen to My Child’s Preferences About Custody?

Will a California Judge Listen to My Child’s Preferences About Custody?

If you have ever wondered whether a judge will listen to your child’s preferences about custody or visitation, you are not alone. There is a short answer: Yes, under certain circumstances. However, there is much more to the story, and there are common misconceptions about the effect of the child’s preferences.

To understand the longer answer, you have to start with California law. In 2012, the California State Legislature enacted a law to give children more of a voice in custody and visitation matters. The law applies when a child is mature enough by “age and capacity to reason so as to form an intelligent preference” about custody or visitation.

The law has a specific provision when the child at least 14 years old, specifically with regard to how the child’s preferences are obtained and presented to the court. For these older children, the court “shall consider, and give due weight to” the child’s wishes unless doing so “is not in the child’s best interest.”

For kids less than 14 years of age, the court may permit the child to express his or her wishes if it is “appropriate pursuant to the child’s best interests.”

Any time a court does not allow a child to testify as a witness, the court must allow alternative means to obtain the child’s input. For example, the court may be informed of the child’s preferences through the child’s lawyer, an evaluator, or a mediator.

There is a common misconception that a court will necessarily do as the child asks.  This is not true. Even when the court does hear from the child, the court is not bound to follow the child’s preference. Rather, the court’s guiding principle is the best interest of the child. For this reason, the court can consider issues such as parent manipulation of the child and the child’s desire to avoid parental rules or discipline.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in child custody and visitation matters and can advise you in detail about how courts deal with these issues. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Contesting Parentage in California

Contesting Parentage in California

It goes without saying that being a parent comes with both rights and responsibilities. Nowhere is this more evident than in legal proceedings that relate to families. In the realm of family law, a child’s parents have the right to request custody and visitation. However, they also have the responsibility of supporting the child, sometimes by paying child support, uninsured healthcare costs, and child care costs.

When a child is born, the mother’s name is listed on the birth certificate. If the mother is married at the time of birth, her husband is presumed to be the father, and his name is also placed on the birth certificate. Likewise, if the mother was married at the time the child was conceived, that man is presumed to be the father and is listed on the certificate.

If the mother is not married, determining who the father is can be more complicated. A very common way of establishing paternity is through a voluntary Declaration of Paternity completed by the parents. Outside of a presumption or voluntary declaration, court proceedings are often used to determine the child’s father. You can read more about paternity at our earlier blog here.

But what happens when a man disputes that he is the father of the child? Indeed, much is at stake for everyone involved — the mother, the putative father, the child, and the state of California.

The California Family Code reaffirms that the state has a compelling interest in establishing child paternity and that both parents have a duty to support their children. This makes sense because parentage affects many rights:

  • child support;
  • child custody and visitation;
  • health insurance;
  • military benefits, survivors’ benefits, and Social Security benefits; and
  • inheritance rights.

When a parent does not support a child, the child suffers. However, the child’s family and the state are also often negatively affected.

The state child support agency can request that a court establish the paternity of a child. Others who may start a paternity suit include the mother, the child’s personal representative, and, of course, the father. A man has the legal right to request a genetic test to determine whether he is the biological father of a child.

Under California Family Code § 7575, if a man who signed a voluntary declaration of paternity is determined by genetic testing not to be the father, the court may still refuse to set aside the declaration. The court’s decision in this regard is focused on the best interest of the child.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including challenges to paternity. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Supervised Visitation in California

Supervised Visitation in California
Supervised visitation is a tool available to California judges when they want to ensure safety and look out for the best interest of a child. Supervised visitation allows a non-custodial parent to visit with his or her child in a safe environment under the supervision of a neutral third party.

There are several reasons a court might use supervised visitation, such as the following:

  • to allow the child and parent to become acquainted or reacquainted if they have no relationship or have been apart for some time;
  • to prevent the parent from abducting the child:
  • to address concerns about parenting skills or parental mental illness; and
  • to allow the parent and child to see each other even though there may be concerns about child abuse or neglect.

The legislature’s top priority in supervised visitation is “the safety of children, adults, and visitation supervisors.” After safety is assured, the paramount consideration is “the best interest of the child.”

California law allows for professional, paid providers to supervise visitation. However it also permits this need to be met by a nonprofessional provider, who is often a family member or friend. In either case, the law strictly regulates the qualifications of supervising providers. Regardless, the following three criteria apply:

  • no prior convictions for crimes against the person, including child molestation or abuse;
  • “no current or past court order in which the provider is the person being supervised”; and
  • if the person will be transporting the child, proof of current automobile insurance.

Professional providers must receive extensive training in many areas, including the following:

  • the responsibilities and duties of providers and their specific role;
  • laws relating to child abuse reporting, family law, and juvenile law;
  • child development needs;
  • cultural sensitivities; and
  • confidentiality

Supervised visitation sessions may be terminated if rules are violated, the child is “acutely distressed,” or a safety issue is present.

Supervised visitation provides an important means for a child to build or maintain a relationship with his or her noncustodial parent. If you need legal assistance in a hotly contested child custody or visitation matter, the attorneys at the Law Offices of Judy L. Burger will provide respectful legal support. Make the call today to learn how our attorneys can help: (415) 293-8314.

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.

What Is a Child Custody Investigation?

What Is a Child Custody Investigation
A child custody investigation is designed to help the family court determine the custody arrangement that is in the “best interest of the child.” In acrimonious divorce or legal separation proceedings, the parties may be vying for custody of their children. It can be difficult for a judge, sitting in a courtroom, to balance the evidence and determine what is best for the children. Child custody investigations can help identify and frame the issues the judge needs to resolve.

Child custody investigations are required by law any time there is a “serious” allegation of child abuse. This includes situations in which any of the following people allege child abuse:

  • The child, made to a law enforcement officer;
  • A child welfare services agency investigator; or
  • Any person who is required by law to report suspected child abuse.

A child custody investigation may also be ordered any time an allegation of serious child abuse “is supported by substantial independent corroboration.” This means that an evaluation may be ordered any time an allegation of serious child abuse is backed up by substantial independent evidence that the abuse occurred.

A child custody evaluation may also be ordered whenever a judge needs information that bears on what may be in the best interest of the children, such as alleged parental substance abuse, extreme parenting practices, or major mental health issues. Sometimes, one party to a divorce or legal separation may make allegations against the other of these types of conduct. Other times, the judge may become concerned based on other evidence or testimony presented to him or her.

Child custody investigations generally conclude with a report from the investigator to the court. The law sets forth minimum requirements for investigations; however, family court judges have great discretion to order additional evaluation “when necessary to determine the safety needs of the child.”

To read more about what happens during a child custody investigation, please see our earlier blog here.

Child custody evaluations are often necessary to protect California children. 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 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.

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.

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.
How Is Paternity Established

How Is Paternity Established and Why Does It Matter?

Establishing paternity—the father of a child—is increasingly necessary in today’s non-traditional family structures. People who have not been touched by this issue might be surprised to know that it is not simply a matter of DNA testing.

When a child is born to a married couple who reside together, the law presumes that the husband is the father. More and more often, however, children are born to couples who are not married. When this happens, a determination must be made as to the father of the child.

Medical care providers are required to provide information to the mother of the child regarding a “voluntary declaration of paternity.” If the mother and the father sign a voluntary declaration, the father will be listed on the birth certificate and will have paternal rights and responsibilities under state law. There is no test required to prove that the father is biologically related to the child.

When no one steps forward to acknowledge paternity, a superior court can make the determination. This typically happens when the biological father does not know of his parentage or wants to avoid involvement with the child. A paternity action can be initiated in court by 1) the child’s mother, 2) the man claiming or denying paternity, 3) a child support agency, or 4) an adoption agency. In this situation, DNA testing is normally used to resolve the conflict.

The reasons for establishing paternity are several. Foremost is the need for financial support for the child. It is also in the State of California’s interest to see that both parents support their child. Otherwise, public assistance may be necessary to support the child. Appropriately, and as noted above, the state child support agency can therefore bring an action to establish paternity.

Another reason for establishing the identity of the father is for health care purposes. Eligibility for health insurance is an important benefit for children. A court can order health care coverage as appropriate once paternity is established. Genetic health information is also important for the child’s wellbeing throughout his life. Many health care decisions are impacted by genetic predispositions inherited from one’s parents.

The emotional and social development of a child can also be positively affected by a child having a father in his life. Even though the father may not live in the home, appropriate visitation arrangements can be made that will support the parent and child relationship. Even if the relationship is minimal, children are better off emotionally and socially knowing the identity of their fathers.

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including paternity matters. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.

How Do California Courts Evaluate Requests to Move Out of the Area?

How Do California Courts Evaluate Requests to Move Out of the Area?Divorced parents often worry about whether they are allowed to move out of the area if they have custody of their children. Fortunately, the California Legislature has a consistent focus on the “best interests of the child,” which permeates all aspects of family law in our state.

Section 7501
of the California Family Code very clearly states that a custodial parent “has the right to change the residence of the child.” The only counterbalance to this, by law, is that a court may “restrain a removal that would prejudice the rights or welfare of the child.”

The right of the custodial parent was not always this clear. In 1996, the California Supreme Court considered whether a custodial parent had to prove that her relocation was “necessary” in order to move away from the area.

In that case, Burgess v. Burgess, the parents agreed at a mediation that the mother would have sole physical custody of the child and that they would share joint legal custody, both on a temporary basis. Their agreement specifically provided for visitation if the mother left the county.

At a hearing several months later, the mother revealed that she was planning to move to a city 40 miles away as the result of a job transfer. Later that year, the court entered an order approving the mother’s move and granting the father enhanced visitation rights.

The first appellate court reversed this order, finding that the mother had failed to show that her move was necessary, instead only showing that it was more convenient for her to move out of the area.

The mother appealed to the California Supreme Court, which ruled in her favor. The state’s high court found that the custodial parent, the mother, was not legally required to prove that her move was necessary. Rather, under the applicable law, Section 7501, she had a presumptive right to move her children. No showing had been made that the move was not in the best interests of the children. Rather, the move would benefit the time she was able to spend with them as their primary caretaker, and their father would still be able to visit with them regularly.

After the Burgess case, the California Legislature specifically added to the law on residence changes that its intention was to declare the ruling in Burgess “to be the public policy and law of this state.”

The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including requests of the custodial parent to move out of the area. Make the call today to learn how our attorneys can help you protect the best interests of your child: (415) 298-8314.