How to get a Child Support Order

How to get a Child Support Order

If you have a child with someone who is not your spouse or is a former spouse, getting child support can be a necessity in order to ensure the continued health, welfare and wellbeing of both yourself and your child.  If you live in California that process can be accomplished by requesting an order for child support from the appropriate court. A court order can be requested either directly by going to the court or indirectly through a local child support agency. However, how the process is initiated will depend on whether or not you already have an open family law case.

Who Can Seek Child Support?

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.

How Does the Court Decide Who Has to Pay 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. (How to establish parentage is discussed below.)

PROCEDURE WHEN YOU HAVE AN OPEN FAMILY LAW CASE

It’s much easier to get a child support order when you already have an open family law case. The court recognizes several different types of family law cases, including:

• Divorce cases (dissolution of marriage)
• Legal Custody cases
• Legal Separation
• Annulment
• Domestic Violence Restraining Order Proceedings
• A petition of custody and support of minor children
• Any local child support agency case

If you have any of the above cases already before the court, you simply need to fill out and file some forms:

1. A Request for Order (FL-300) – available online or through your local family court.

2. An Income and Expense Declaration (Form FL-150) OR a Financial Statement (simplified) (FL-155) – also available online.

**If you are unsure which financial form you need to use, form Which Financial Form – FL -155 of FL 150   (DV-570) is available to assist you.

After you’ve completed the forms, you should have either a family law facilitator or a private attorney review them to ensure that they are properly filled out and ready for the court to process. 

After you’ve had your forms reviewed, file them with the appropriate court. Once you file the forms, the court clerk will give you a date and time for your child support order hearing.  After you’ve been given a court date, you MUST serve the papers on the other parent.

Serving The Other Party

It’s important that the other party is properly served. Failing to properly serve the other parent can cause unnecessary delays in getting your child support order. To properly serve the other party, have someone over the age of eighteen either give the papers directly to them or mail the papers. You cannot give them the papers yourself and you cannot mail the papers yourself, a third party must do it. 

The papers you serve on the other parent should include a copy of the papers you filed as well as a blank Responsive Declaration to Request for Order (Form FL-320) and a blank Income and Expense Declaration (Form FL-150).

If you don’t know anyone who can serve the papers, you can usually get a sheriff’s deputy to serve the papers. The court will be able to give you direction on how to have a sheriff serve the papers on your behalf. (There may be an extra charge for this).

After you’ve served the other parent, have the person who served the papers file a Proof of Personal Service (Form FL-330) with the court. If the papers were served by mail, have them file a Proof of Service by Mail (Form FL-335). It is imperative that the proof of service is filed. This is your legal proof that the other party was given adequate time to review and respond to your request for child support. Failing to file the proof of service allows the other party the opportunity to dispute that the papers were properly served, which could unnecessarily delay getting your order.

Now all you need to do is simply show up to your court date with your paperwork and present your case! 

WHAT TO DO WHEN YOU DON’T CURRENTLY HAVE AN OPEN FAMILY LAW CASE

In this case, the steps you will need to follow will depend on whether or not you are married to your partner or in a registered domestic relationship.

Married or in a Registered Domestic Relationship

If you do not already have an open family law case, you need to first initiate a case, then follow all of the steps listed above for filling out, filing and serving the paper work.

However, not all cases are related to a breakdown in the relationship or the marriage. If you and your partner are either married or in registered domestic partnership and would still like to have the benefit of a child support order, you can start a case under a Petition for Custody and Support of Minor Children. A petition for custody allows the court to enter an order of child support as well as any other related orders.

Not Married or in a Registered Domestic Relationship

For people who are not married or in a registered domestic relationship, you can seek a child custody order by opening the following types of cases:

Domestic Violence Restraining Order

You can file a domestic violence restraining order if the other parent of your child has either emotionally or physically abused you. In this instance, you do not need to be in a romantic relationship with the person, so long as you share a child you can seek child support when you file the restraining order. 

Petition for Custody and Support of Minor Children

If you already have a signed Declaration of Paternity you can file under a Petition for Custody and Support of Minor Children. If you do not have a signed Declaration of Paternity, then you will need to initiate a parentage case.

Parentage:

Parentage is perhaps the most complicated method of attaining a child support order. A parentage case is for unmarried people who share a child or children, but who do not have either a signed Declaration of Paternity or any legal documentation to establish who has legal responsibility over the child or children.

What is Parentage?

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. 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 could 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 responsibilities in relation to the child until his parentage is established.

How to Establish Parentage

Parentage can be established in several ways, including:

1. Signing a Declaration of Paternity:

Signing a Declaration of Paternity is voluntary and can be done either at the hospital when the baby is born or at a later date. Once a Declaration of Paternity is signed and filed with the California Department of Child Support Services, the signer becomes the legal father of the child. Once the declaration is signed a court order is no longer needed to establish parentage.

1. Providing Proof Of Giving Birth To The Child
2. Providing A Court Order Of Adoption
3. Asking A Local Child Support Agency To Bring An Action To Establish Parentage
4. Asking the Court to Issue a Court Order

Steps for filing a parentage case can be found here: http://www.courts.ca.gov/11298.htm

1. Establishing Biological Paternity

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.

A. Presumptions of Paternity:

Paternity is presumed when:

• A child was born during a marriage or within 300 days after the marriage ended,

• A child was born during an attempted marriage that appeared to be legal, or the child was born within 300 days of the attempted marriage,

• There was a subsequent marriage or attempted marriage after the child’s birth,

• The child is welcomed into the home and is held out to be the natural child of the presumed parent.

Once you have successfully initiated one of the above proceedings, then simply follow the steps provided in the first section: Procedure When You Have an Open Family Law Case and you are on your way to getting your child support order!

However, if you still have questions or concerns about how to file your child support case or if your case is unique in some way, you should speak with a knowledgeable family law attorney or a family law facilitator.