Child support is a court order requiring a parent to make ongoing monthly payments for the care and support of a child or children. A child support order is usually sought when parents separate, divorce, or when one parent has not met his or her financial obligation. Generally, the parent who has primary custody of the child is the one to receive financial support. However, child support can be ordered in joint custody situations. The amount of the support payment is based on state guidelines and the financial situation of the parents. Unlike spousal support (alimony), child support is mandatory and, in a family law proceeding, the court may order one or both parents to pay child support even without a specific request to do so.
“A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” Fam C. § 4053(a).
Caring for the health and welfare of a child is part of California’s basic public policy. Under California law, the duty to support a child is absolute regardless of who has actually been ordered by the court to pay support. This duty can be satisfied by financially supporting the child, physically caring for the child, or both. Under the law, both parents are 100% responsible for their child. If one parent fails to meet their obligation, the other parent must ensure the child’s needs are provided for.
In determining how much child support should be paid, the court will evaluate the situation of the parents and create a financial arrangement that is consistent with California law, the child’s needs, and the parent’s financial situation. Either parent can request child support and the court will generally order support based on the custody arrangement of the parents.
Anyone with a child can request child support from the other responsible party. For example, single mothers can request that the biological father pay support, same-sex couples, where both parents are the legal parent of the child, can request child support, and divorcing couples with children can request child support.
If the parents are married at the time the child is conceived or born, then both are automatically presumed responsible and the court will usually require the non-custodial parent to pay child support to the custodial parent. However, if the parents are not married, then the parentage of the child must be established before a court can issue a child support order.
Parentage is the legal determination of who will be responsible for supporting the child. In order to be legally responsible for a child, a parent does not have to be the biological parent. Accordingly, parentage can be established for adoptive parents, same-sex couples, or any person who has agreed to take legal responsibility for the child. Generally, if the child was not conceived or born during a marriage, then establishing the child’s parentage is necessary in order to seek custody, support, or visitation with the child. Once parentage is established, the legal parents are responsible for the child and failing to pay court ordered child support may have legal consequences.
Parentage is not the same as paternity. A biological father, who was never married to the mother, has no legal rights or responsibility in relation to the child until his parentage is established.
Parentage can be established in several ways, including:
California law provides a presumption of paternity in certain cases. When there isn’t a presumption of paternity, then DNA testing can be done to establish paternity.
Presumptions of Paternity:
Paternity is presumed when:
Parentage is very difficult to change even if DNA later shows that the man presumed to be the father is not, in fact, the biological father.
However, parents who established parentage by signing a declaration of paternity have two years to challenge the declaration in court. In order to challenge paternity in court, the challenger must prove one of the following:
Child support is intended to last throughout the child’s minority, and ceases when:
There are some exceptions, however. If a child becomes incapacitated, or physically or mentally disabled, the parents have a duty to continue to support the child indefinitely.
Child support is intended to cover more than just the child’s basic needs for food, clothing and shelter. Child support should cover any other expenses that are common with raising a child. These can include:
The ultimate goal of child support is to ensure that the child’s standard of living remains the same after the parents have separated. Accordingly, the amount of the support payment ordered should reflect this standard.
In addition to ordering financial support, the court can order that the parents pay for certain “add-on” expenses related to supporting the child. Add-on expenses can be either mandatory or discretionary. Any ordered add-ons must be consistent with California Family Code §4062.
How you get a child support order depends on whether or not you have an open family law case.
If you already have a family law case open, you can complete and file an Order to Show Cause (Form L-0048) with the court to get a hearing date.
Family law cases include:
If you do not have a family law case open, you can file a Petition for Custody and Support of Minor Children (Form L-1026). However, the only court that can impose a child support order is one that has “personal jurisdiction” over the other party. If you are currently involved in a family law case, then the issue of personal jurisdiction has already been resolved. If you are not, then you need to be sure that you file your case in a court that has personal jurisdiction.
Legally speaking, personal jurisdiction refers to whether or not a certain court can exercise power over someone. In California, personal jurisdiction is relatively easy to establish and can be established when the other party lives in California or has regular contact with California. Once a child custody order is in place, the same court has continuing authority to modify or change the order.
Filing your case in the right court is extremely important. A case that is filed in a court that does not have personal jurisdiction will likely be dismissed and you will have to start over in the appropriate court. If you are unsure whether a certain California court is the appropriate place to file your claim, you should consult an attorney or other qualified expert for guidance.
The proper amount of the child support payment cannot be fully determined if the court doesn’t know how much time each parent is spending with the child or plans to spend with the child. In order to make this determination, a child custody or visitation agreement should be made. Custody and visitation schedules can be created and agreed upon prior to the court case or the court can issue orders during the child support hearing. If an agreement has been made, then the agreement should be attached to the affidavit or declaration with a detailed statement on what the parties agreed upon.
Child custody in California can be legal custody, physical custody, or both. A court will generally order support based on how the parents have arranged custody.
A parent who has legal custody of the child is responsible for making important life decisions on behalf of the child. These decisions include the child’s healthcare, schooling, religious affiliations, sports, and other day-to-day activities. In joint custody agreements, parents share custody rights equally and both make crucial decisions regarding how the child is raised. In sole custody, only one parent has the legal right to make decisions on behalf of the child. The parent with legal custody does not always have physical custody.
Physical custody is the arrangement between the parties as to where the child will live. Like legal custody, physical custody can be shared. In general, the parent with physical custody of the child receives payment from the other parent. The reason for this is that the court assumes that by virtue of having the child physically with you, you are already spending your own money on the child.
In California, the amount of child support that a parent has to pay is determined by a mathematical formula set up by the state in the California Child Support Guidelines. The payment amount is based on the net disposable monthly income of the parents. Net disposable income is based on gross income minus what counts as deductions for child support.
In California, the court determines gross income from all forms of income including:
After determining the gross income, the court then subtracts payment for:
After determining the net disposable income, the court then evaluates the percentage of time that each parent spends with the child. The resulting payment after all factors have been considered is then calculated according to the California Child Support Guidelines.
If you are interested in finding out how much child support you might have to pay, you can use the child support calculator located here:
http://www.childsup.ca.gov/portals/0/resources/docs/gdlncalculator.pdf
However, keep in mind that the amount you calculate may be different than the amount the court calculated. If you disagree with the court’s assessment, you have the right to appeal.
The income used for the support calculations comes from an Income and Expense Declaration (Form FL-150) that California requires all parents seeking child support complete and file. The income and expense declaration is extremely important to ensure a proper child support determination. An incorrect income and expense declaration can delay proceedings and a person who knowingly files an incorrect income and expense declaration may be subject to sanctions.
A child support order should include:
If spousal support is included, the order should also state how much money is allocated to the former spouse and how much is allocated to the child.
Parents with little to no income should request child support as soon as possible in order to avoid any major changes in the child’s lifestyle. When requesting child support, the parent may also request a temporary emergency court order for the temporary use and control of real property and an order to direct one parent to pay any mortgage, if necessary. Temporary support is calculated using the same formula as permanent support. Accordingly, it is important to have all your financial documents ready in order to get the most accurate accounting. Temporary child support usually remains in place until a permanent order is put in place.
In some cases, a party may need to request an expedited order of support. If granted, the expedited order automatically becomes effective after 30 days unless the other party files a response.
Like temporary orders, permanent orders are based on the same California guidelines using the same calculations. The permanent order is made at the time of trial when the court has a more complete understanding of the financial obligations and abilities of the parents.
Child Support Modification
The court has the power to change or ‘modify’ child support as necessary. Even judgments that are considered final can be changed by the court should it need to do so. The court recognizes that income and custody agreements can change and the child support agreement should be modifiable in order to reflect those changes.
In order to modify a child support payment, the person requesting the modification must show the court that there has been a material change in circumstances since the most recent order.
Some examples of a change in circumstance include:
If a parent hasn’t been paid child support, he or she can enforce the child support order by filing a motion for contempt. Once the motion has been filed and the court finds the delinquent person in contempt, the court has broad authority to enforce child support payments.
Enforcement efforts can include:
California has a three-year statute of limitations for requesting missed child support payments. Once a payment has been missed a motion for contempt must be filed within three years of the date the payment was missed. Failing to file within three years means that you may no longer have the right to collect that missed payment.
Under the Social Security Act each state is required to establish a child support enforcement program, called IV-9 programs. The Department of Child Support Services (DCSS) is California’s IV-D program. The program helps parents and legal guardians locate an absent parent, establish paternity, request child support orders, request medical support orders, and modify support orders. The DCSS also provides parents access to an ombudsperson (to explain legal rights and responsibilities), a family law facilitator, as well as information on advocacy groups. While DCSS helps parents enforce child support payments, they do not act as their attorney.
Any parent, whether custodial or non-custodial is eligible to get help from DCSS to enforce a child support order. The program is generally low or no cost. However, in order to receive help from DCSS, an application must be filed. Applications are available on the DCSS website at http://www.childsup.ca.gov. Once an application has been filed and approved, parents can set up an account through which they can make or receive their child support payments.
(The DCSS program in Stockton is administered by the County of San Joaquin Department of Child Services.)
DCSS is empowered by the state with several methods of enforcing child support payments not available to parents through the legal system alone.
These enforcement remedies include:
DCSS can submit the names of persons not in compliance with their court mandated support order to any state licensing boards, including the Department of Motor Vehicles, the California State Bar, and The Bureau of Real Estate. The licensing board can then suspend the license or inform the delinquent parent that the license will not be renewed until the child support is paid.
DCSS has a full-scale collection program and is authorized to place a levy on any bank accounts without having to get a court order first.
DCSS is required to notify the EDD of any persons owning child support. EDD can then withhold a percentage of any payments set to go out the delinquent parent.
This applies to both state and federal tax refunds.
Under the law, the United States Department of State must refuse to issue a passport to anyone who owes more than $2500 in child support.
A child support request is called a Request for Order (Form FL-300). A Request For Order may come from the other parent or from DCSS. If you receive a Request, you should first carefully read over the paper work to make sure you understand what the other party is asking. Whether or not you disagree with the request, you have the right to respond. If you do not respond you risk the court making a child support determination based on the other party’s estimation of your income and time spent with your child.
To respond to the request, you must file a Responsive Declaration to Request for Order (Form FL-320) and an Income and Expense Declaration (FL-150). The Responsive Declaration allows you to dispute any facts you believe are inaccurate as well as any inconsistencies or inaccuracies in the request. You must file your response at least 9 days prior to the scheduled hearing.
Filling out court documents and ensuring that you are taking the right action to protect yourself as well as your relationship with your child can be difficult and time consuming. If you are unsure of how to proceed, you should speak with an attorney or other qualified professional.
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