CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5th Ed. Chapter Five Child Support

A. INTRODUCTION • Child support refers to the monetary contributions made by one parent of a child (or children) to the other parent. • Typically, it is the noncustodial parent who is paying support to the custodial parent. • The existence of a valid marriage is completely irrelevant to the issue of the assessment and collection of child support, which can arise in many proceeding including dissolution, legal separation, nullity, and paternity.

A. INTRODUCTION • Spousal support refers to monies paid by one spouse to the other following dissolution of marriage or legal separation. • In contrast to child support, spousal support is dependent upon the existence of a valid marriage for its assessment and collection.

A. INTRODUCTION • The only exception to this rule is found in nullity actions wherein a “putative spouse” may sometimes collect “spousal support” as a result of the circumstances arising out of and pertaining to the action for nullity. • Family support represents a “hybrid” of spousal support and child support and is primarily designed for tax purposes, taking advantage of the fact that while child support is not tax-deductible, spousal support is.

1. DUTY TO PROVIDE SUPPORT • Family Code sections 3900 et seq. describe the general obligation of both parents to support their child “in the manner suitable to the child’s circumstances.” • This duty extends to all minor children of the parents, whether legitimate or illegitimate, natural or adopted. • This obligation to support a child is not dependent upon the existence of a valid marriage.

1. DUTY TO PROVIDE SUPPORT • The duty of support continues as to any “unmarried child who has attained the age of 18 years, is a full time high school student, and who is not self supporting, until the time the child completes that 12th grade or attains the age of 19 years, whichever occurs first.” • Family Code section 4400 provides that: “Except as otherwise provided by law, an adult child shall, to the extent of his or her ability support a parent who is in need and unable to maintain himself or herself by work.”

1. DUTY TO PROVIDE SUPPORT • This is a reciprocal obligation, which could provide the basis for an action by a county agency providing support to an adult parent or on behalf of the parent himself who is “in need.” • Family Code section 3900 imposes “equal responsibility” upon both parents to support their children. • If one parent provides child support voluntarily, that parent will generally be denied an action for reimbursement from the other parent absent some agreement or court order.

1. DUTY TO PROVIDE SUPPORT • Family Code section 4000 provides as follows: “If a parent has the duty to provide for the support of the parent’s child and willfully fails to so provide, the other parent, or a child by a guardian ad litem, may bring an action against the parent to enforce the duty.” • “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.”

1. DUTY TO PROVIDE SUPPORT • These sections clearly establish a reciprocal duty of mother and father to child and child to mother and father to continue to maintain each other, without reference or regard to termination due simply to the passage of time. • This duty does not extend to anything other than payment for the “necessaries of life.” • Therefore, the parent does not have a statutorily imposed continuing duty to pay for college expenses, or even living expenses, of an adult child who is capable of working and who simply chooses not to.

1. DUTY TO PROVIDE SUPPORT • The statutes create an obligation of the parents to reimburse third parties who provide support for the children following the parent’s failure to do so. • The third party typically involved in these proceedings is a county or similar welfare agency who has stepped in to provide support for the children in the absence of parental support. • When that happens, this “third person” is entitled to be reimbursed under certain circumstances.

1. DUTY TO PROVIDE SUPPORT • “If a parent neglects to provide articles necessary for the parent’s child who is under the charge of the parent, according to the circumstances of a parent, a third person may in good faith supply the necessaries and recover their reasonable value from the parent.” • Liability for child support rests upon a relationship between the parent and the child either through natural means or through adoption. • A stepparent (unless that person has adopted the child) maintains neither such relationship.

2. OBTAINING AN AWARD OF CHILD SUPPORT • A child support award (order) can be obtained basically two different ways: The parties can agree on entry of an order, or the court can order payment of support in those situations where the parties do not agree. • Family Code section 4065 provides that the parties are free to stipulate to a child support amount, but that amount is subject to court approval. • The section further directs the court to withhold its approval unless the parties declare that: see pages 165 and 166.

2. OBTAINING AN AWARD OF CHILD SUPPORT • The calculation of the amount of child support has become an extremely rigid process. • Deviation from the statutory guidelines, even pursuant to a stipulation of both parents, is not easy to come by. • Several avenues are also available to government agencies to collect support payments either on behalf of the child and the recipient parent or on behalf of the county itself in welfare situations.

2. OBTAINING AN AWARD OF CHILD SUPPORT • For example, the district attorney for any county that is providing Aid to Families with Dependent Children (AFDC) may maintain an independent action to obtain reimbursement from the noncustodial parent for amounts paid on behalf of the child under the authority of the Welfare and Institutions Code section 11350 et seq.

2. OBTAINING AN AWARD OF CHILD SUPPORT • The amount of the reimbursement will be either the amount specified in a preexisting child support order issued by the superior court or, in the absence of such order, the amount that would have been specified in an order had the matter been given to the superior court for determination.

2. OBTAINING AN AWARD OF CHILD SUPPORT • Similarly, in the event the minor child is taken out of the home (typically under the auspices of the juvenile dependency court) and placed in foster care, the court may maintain an action against the child’s parents for the “reasonable costs of support” for the minor while the minor child is “placed, or detained in, or committed to, any institution or place.” • The authority for this action is found in Welfare and Institutions Code sections 625 and 903.

2. OBTAINING AN AWARD OF CHILD SUPPORT • Section 3651 also contains authority for the modification (or revocation, as the court may deem necessary) of preexisting child support awards, and section 3653 provides that an award (or modification) of child support may be made retroactive to the date of filing the notice of motion or the order to show cause requesting the change • Finally, section 3652 includes a provision for the recovery of attorney’s fees and court costs to the prevailing party in these matters.

2. OBTAINING AN AWARD OF CHILD SUPPORT • The legislature created the Department of Child Support Services (DCSS) and charged it with the duty to “administer all services and perform all functions necessary to establish, collect, and distribute child support.” • It is not necessary that the recipient of the child support in question be receiving public assistance. • For the most part, the only issues that will be addressed in these proceedings are those related directly to child support. • For the most part, custody and visitation and related issues will not be heard in this context.

3. AMOUNT OF THE AWARD • a) Historical Perspectives • Without a doubt, the most heavily litigated issue in the context of child support does not concern the liability for support, but the amount at which the support should be set. • Historically, the establishment of the amount of child support was primarily left to the discretion of the trial court. • As might be expected, these child support awards varied widely from county to county and even from courtroom to courtroom within the same county.

3. AMOUNT OF THE AWARD • b) Current Law Concerning Guideline Child Support • Family Code section 4053 sets forth the mandatory principles of child support. • See pages 171 and 172. • The actual algebraic formula for the calculation of guideline child support is contained in Family Code section 4055. • That formula is expressed as follows: • CS = K [HN – (H%)(TN)]

3. AMOUNT OF THE AWARD • In the guideline child support formula, the symbols set forth below make reference to the following definitions: • CS = child support amount • K = amount of both parents’ income to be allocated to child support • HN = high earner’s net monthly disposable income • H% = high earner’s approximate time of physical responsibility for the children • TN = the parties’ total monthly net income

3. AMOUNT OF THE AWARD • Gross income includes income (as that term is generally construed by the IRS) from all sources, and net disposable income is gross income less all allowable deductions (usually state and federal taxes, union dues, mandatory retirement benefits, health insurance deductions, and items of a similar nature). • Family Code section 4057.5 puts to rest the question of whether income of a new spouse, or a live-in partner, will be included in the determination of the obligor or obligee’s income: it will not.

3. AMOUNT OF THE AWARD • In the following example, child support of $3,444.48 is allocated among four children as follows: • Youngest child: $1,497.60 • Next youngest: $898.56 • Third youngest: $599.04 • Oldest child: $449.28 • See page 176.

3. AMOUNT OF THE AWARD • By allocating the child support in this manner, it ensures that the highest portion of the support is allocated to the youngest child. • By so doing, as the older children reach the age of majority and no longer receive child support payments, not only will the parties know by how much the award will drop, but the drop-off will be the lowest possible amount, thus ensuring that the remaining children will continue to receive the amount required by the guidelines.

3. AMOUNT OF THE AWARD • The court has the authority to look beyond the plain mathematical calculation to determine income and to impute to the payor parent (that is, pretend as if that person was in fact earning) income from the higher paying “earning capacity” employment. • The purpose behind this is to discourage parents with an otherwise high earning capacity from deliberately suppressing their income by taking a low-paying job in an attempt to deprive their children of adequate and reasonable child support. • See example on pages 176-177.

3. AMOUNT OF THE AWARD • c) Statutory Add-Ons and Deductions • There is a statutory presumption that the amount determined pursuant to the guidelines is, in fact, the correct order. • The court can, however, deviate from the guideline amount upon a finding that rebuts the statutory presumption that the amount arrived at pursuant to the guidelines is correct and should be ordered in all cases.

3. AMOUNT OF THE AWARD • Once the calculation of net income has been determined to the court’s satisfaction as regards an “earning capacity” analysis, there are certain mandatory and discretionary add-ons and reductions to the net income as provided by statute that may act to increase (or in some cases decrease) net income and in so doing lower the amount of the child support award. • The concept of a hardship deduction is defined by statute at sections 4070 and 4071 of the Code • Those sections provide that the hardship deduction will be allowed only in cases of “extreme financial hardship,” arising from the following statutorily defined circumstances:

3. AMOUNT OF THE AWARD • (1) Extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses. • (2) The minimum basic living expenses of either parent’s natural or adopted children for whom the parent has the obligation to support from other marriage or relationships who reside with the parent. • The allowance of these hardship deductions is entirely discretionary with the court, and the Code specifically directs the court to state, in writing or on the record, the reasons it had found in support of the deduction, document the amount of the deduction and the manner in which it was calculated, and, if possible, to specify the duration of the hardship.

3. AMOUNT OF THE AWARD • In addition to deductions from income, the Code also provides that certain items either shall or may be added to the child support award. • These are listed in section 4062: • See page 178. • Generally, to the extent the above items are added on to the child support calculation, the court will apportion them equally between the two parents unless the court finds the existence of good cause to apportion them differently.

3. AMOUNT OF THE AWARD • d) Computer-Assisted Support Calculations • There are variety of computer software programs that are preprogrammed with the guideline formula and are designed to take a gross income figure as to each parent and apply the various add-ons and deductions to that amount to determine ultimate net income for each parent. • The program will then apply all the calculations, and present a guideline child support amount. • Family Code section 3830 provides that no court may use any of these computer software programs unless it conforms to the rules of court adopted by the judicial council prescribing standards for these programs.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • It is generally thought that once an amount of child support has been established, payment of that amount will (for the most part) relieve an obligor parent of the obligation to pay any additional sums for the support or maintenance of the child. • There are, however, exceptions to this rule. • Of particular note are the provisions found at Chapter 7 of Division 9, entitled “Health Insurance,” and those found at Chapter 8 of that Division entitled “Deferred Sale of Home Order.”

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • a) Mandatory Health Insurance • Family Code section 3751 has established mandatory provisions requiring maintenance of health insurance coverage for a supported child. • The court shall require that health insurance coverage for a supported child shall be maintained by either or both parents if that insurance is available at no cost or at a reasonable cost to the parent. • Health insurance coverage shall be rebuttably presumed to be reasonable in cost if it is employment-related group health insurance or other group health insurance.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • The court has the power to require the employer of the obligor parent to enroll the supported child in the health insurance plan and to deduct the full cost of the premiums for that coverage from the obligor’s earnings. • Family Code section 3766 gives the employer the obligation to commence coverage consistent with the court’s for health insurance assignment within ten days after being served with the assignment order. • Clearly, then, not only can the employer be held liable for the costs of medical services provided, but it also runs the risk of being held in contempt of court and facing the fines and penalties associated with such a finding.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • b) Deferred Sale of Home Order • A somewhat rare, but no unheard of component of a child support award is found not in the payment of cash, but in the court’s willingness to allow the recipient parent to remain in the family home with the minor child for so long as the child remains a minor or continues to live with that parent. • Such an order is called a Duke order, now referred to as the deferred sale of home order. • The Marriage of Bozeman, together with the Marriage of Hermann established the basic guidelines for deferring the sale of a family home under circumstances where it is “economically unfeasible” to award the house to either parent.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • The Duke court established the rationale of the deferred sale of family home award as follows: “Where adverse economic, emotional and social impacts on minor children and the custodial parent which would result from an immediate loss of a long-established family home are not outweighed by economic detriment to the non-custodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.” • See pages 185 and 186 for factors.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • c) Expedited Child Support Order • Federal legislation has called for expedited processes pertinent to establishing and enforcing child support orders. • Family Code sections 3620 et seq. provide a mechanism by which a party may apply ex parte for an order requiring payment of child support during the pendency of the underlying action. • The applicant for one of these expedited child support orders need not be a parent.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • Indeed, more often than not the district attorney or some similar governmental agency will be the party taking advantage of this new procedure in order to obtain relatively immediate child support orders to offset welfare being paid on behalf of unsupported minor children. • Pursuant to Family Code section 3629, at the hearing on the application, all parties who are parents of a child (or children) and who are the subjects of the application procedure, are required to produce copies of their most recently filed federal and state income tax returns, which documents may be reviewed by the other parties to the action and may also be reviewed by the court.

4. ADDITIONAL ASPECTS OF CHILD SUPPORT • d) Application of Case Law to Child Support Awards • Case law has clearly established that a minor child is entitled to be maintained in a style and condition consistent with both of its parents’ position in life. • Simply providing for necessities is not enough if the parents can afford more. • The court is vested with wide authority to investigate all aspects of both parties’ income positions, and if one parent can show that the other parent is deliberately depressing his or her income to avoid financial responsibilities vis-à-vis their children, the court has the authority to make orders for child support based not upon the parties’ actual earnings, but on the parties’ ability to earn.

C. MODIFICATION; TERM. OF CHILD SUPPORT • In order to modify an award for child support one must show that a significant change in circumstances has taken place since enactment of the prior order. • As a result of this limitation on modification of child support awards, it is prudent to include a recital of exactly what the circumstances of the parties are when entering into an agreement to provide for support. • This recital should include the circumstances related to the standard of living of the parties, the income and expenses of each party, and any particular facts or circumstances surrounding the minor child that might have a bearing on monetary issues.

1. AGE OF MAJORITY • As a general rule, a Family Code child support order terminates when the child reaches the age of majority. • Subject to various exceptions, the duty to pay child support, which generally extends only to minor children, will terminate when that child turns 18. • One of the exceptions to the termination of child support liability as of the age of 18 concerns children who are over the age of 18 but are still attending high school full-time, residing with a parent, and are not married. • Support will continue for this child until he turns 19 or graduates from high school, whichever first occurs.

1. AGE OF MAJORITY • An additional exception to the age of majority termination is the child support obligation set forth in Family Code section 3910. • Under that section, any children, including adult children who are “incapacitated from earning a living and without sufficient means,” can continue to receive child support beyond the age of 18. • Because these orders are not made on the basis of the child’s minority, the age of majority will not be a terminating event.

1. AGE OF MAJORITY • Family Code section 3587 allows the court to approve a stipulated agreement for the support of any adult child or for the continuation of child support after that child has obtained majority, and to enter a support award accordingly. • The right to enforce support arrearages is not lost when the child attains the age of majority. • The period of time that is “otherwise allowed” for the enforcement of child, family or spousal support order is established by Family Code section 291, which provides that such orders may be enforced “until paid in full,” no matter how long that may take.

2. EMANCIPATION OF MINORS LAW • Anther event that will trigger the termination of child support is the emancipation of the minor child. • For purposes of child support liability and the parental obligation to provide such child support, and emancipated minor is considered to be one over the age of majority regardless of the actual chronological age of that person. • Family Code section 7002 declares a person under 18 to be an emancipated minor if any of the following conditions are met: see page 193.

2. EMANCIPATION OF MINORS LAW • Family Code section 7050 provides that an emancipated minor will be considered an adult for the following purposes: see pages 193 and 194. • To petition the court for emancipation, the child must be at least 14 years of age. • The petition must also establish (under penalty of perjury) that the child is willingly living separate and apart from his or her parents with their consent or acquiescence.

2. EMANCIPATION OF MINORS LAW • The child must also establish to the court’s satisfaction that he is managing his own financial affairs and in that regard must supply the court with his own income and expense declaration pursuant to Judicial Council form FL-150. • The minor must also prove that the source of income is not derived from any activity declared to be a crime by the laws of the State of California or the United States. • Notice of the minor’s petition for emancipation is given to the child’s parents or guardian or any other person entitled to custody of the child.

2. EMANCIPATION OF MINORS LAW • Just as there are circumstances that terminate the liability for child support, certain other circumstances that might be thought to terminate that liability will not. • For example, child support obligations are not dischargeable in bankruptcy • Another such event is the death of a supporting parent. • Assuming that the support obligation is presented in a court order or marital settlement agreement, however, that order is enforceable directly against the estate of the deceased parent by filing a creditor’s claim in the probate action.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.