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

CALIFORNIA CALIFORNIA FAMILY LAW FAMILY LAW

FOR FOR PARALEGALS, 5PARALEGALS, 5thth

Ed.Ed.Chapter FiveChapter FiveChild SupportChild Support

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A. INTRODUCTIONA. INTRODUCTION Child supportChild support refers to the monetary refers to the monetary

contributions made by one parent of a contributions made by one parent of a child (or children) to the other parent.child (or children) to the other parent.

Typically, it is the noncustodial parent who Typically, it is the noncustodial parent who is paying support to the custodial parent.is paying support to the custodial parent.

The existence of a valid marriage is The existence of a valid marriage is completely irrelevant to the issue of the completely irrelevant to the issue of the assessment and collection of child support, assessment and collection of child support, which can arise in many proceeding which can arise in many proceeding including dissolution, legal separation, including dissolution, legal separation, nullity, and paternity.nullity, and paternity.

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A. INTRODUCTIONA. INTRODUCTION

Spousal supportSpousal support refers to monies refers to monies paid by one spouse to the other paid by one spouse to the other following dissolution of marriage or following dissolution of marriage or legal separation.legal separation.

In contrast to child support, spousal In contrast to child support, spousal support support isis dependent upon the dependent upon the existence of a valid marriage for its existence of a valid marriage for its assessment and collection.assessment and collection.

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A. INTRODUCTIONA. INTRODUCTION

The only exception to this rule is found in The only exception to this rule is found in nullity actions wherein a “putative spouse” nullity actions wherein a “putative spouse” may sometimes collect “spousal support” as may sometimes collect “spousal support” as a result of the circumstances arising out of a result of the circumstances arising out of and pertaining to the action for nullity.and pertaining to the action for nullity.

Family supportFamily support represents a “hybrid” of represents a “hybrid” of spousal support and child support and is spousal support and child support and is primarily designed for tax purposes, taking primarily designed for tax purposes, taking advantage of the fact that while child advantage of the fact that while child support is not tax-deductible, spousal support is not tax-deductible, spousal support is.support is.

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1. DUTY TO PROVIDE 1. DUTY TO PROVIDE SUPPORTSUPPORT

Family Code sections 3900 et seq. describe Family Code sections 3900 et seq. describe the general obligation of both parents to the general obligation of both parents to support their child “in the manner suitable support their child “in the manner suitable to the child’s circumstances.”to the child’s circumstances.”

This duty extends to all minor children of This duty extends to all minor children of the parents, whether legitimate or the parents, whether legitimate or illegitimate, natural or adopted.illegitimate, natural or adopted.

This obligation to support a child is not This obligation to support a child is not dependent upon the existence of a valid dependent upon the existence of a valid marriage.marriage.

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The duty of support continues as to any The duty of support continues as to any “unmarried child who has attained the age of “unmarried child who has attained the age of 18 years, is a full time high school student, and 18 years, is a full time high school student, and who is not self supporting, until the time the who is not self supporting, until the time the child completes that 12child completes that 12thth grade or attains the grade or attains the age of 19 years, whichever occurs first.”age of 19 years, whichever occurs first.”

Family Code section 4400 provides that: Family Code section 4400 provides that: “Except as otherwise provided by law, an adult “Except as otherwise provided by law, an adult child shall, to the extent of his or her ability child shall, to the extent of his or her ability support a parent who is in need and unable to support a parent who is in need and unable to maintain himself or herself by work.”maintain himself or herself by work.”

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This is a reciprocal obligation, which could This is a reciprocal obligation, which could provide the basis for an action by a county provide the basis for an action by a county agency providing support to an adult parent or agency providing support to an adult parent or on behalf of the parent himself who is “in on behalf of the parent himself who is “in need.”need.”

Family Code section 3900 imposes “equal Family Code section 3900 imposes “equal responsibility” upon both parents to support responsibility” upon both parents to support their children.their children.

If one parent provides child support voluntarily, If one parent provides child support voluntarily, that parent will generally be denied an action that parent will generally be denied an action for reimbursement from the other parent for reimbursement from the other parent absent some agreement or court order.absent some agreement or court order.

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Family Code section 4000 provides as follows: Family Code section 4000 provides as follows: “If a parent has the duty to provide for the “If a parent has the duty to provide for the support of the parent’s child and willfully fails support of the parent’s child and willfully fails to so provide, the other parent, or a child by a to so provide, the other parent, or a child by a guardian ad litem, may bring an action guardian ad litem, may bring an action against the parent to enforce the duty.”against the parent to enforce the duty.”

““The father and mother have an equal The father and mother have an equal responsibility to maintain, to the extent of responsibility to maintain, to the extent of their ability, a child of whatever age who is their ability, a child of whatever age who is incapacitated from earning a living and incapacitated from earning a living and without sufficient means.”without sufficient means.”

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These sections clearly establish a reciprocal These sections clearly establish a reciprocal duty of mother and father to child and child to duty of mother and father to child and child to mother and father to continue to maintain mother and father to continue to maintain each other, without reference or regard to each other, without reference or regard to termination due simply to the passage of time.termination due simply to the passage of time.

This duty does not extend to anything other This duty does not extend to anything other than payment for the “necessaries of life.”than payment for the “necessaries of life.”

Therefore, the parent does not have a Therefore, the parent does not have a statutorily imposed continuing duty to pay for statutorily imposed continuing duty to pay for college expenses, or even living expenses, of college expenses, or even living expenses, of an adult child who is capable of working and an adult child who is capable of working and who simply chooses not to.who simply chooses not to.

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The statutes create an obligation of the parents The statutes create an obligation of the parents to reimburse third parties who provide support to reimburse third parties who provide support for the children following the parent’s failure to for the children following the parent’s failure to do so.do so.

The third party typically involved in these The third party typically involved in these proceedings is a county or similar welfare agency proceedings is a county or similar welfare agency who has stepped in to provide support for the who has stepped in to provide support for the children in the absence of parental support.children in the absence of parental support.

When that happens, this “third person” is entitled When that happens, this “third person” is entitled to be reimbursed under certain circumstances.to be reimbursed under certain circumstances.

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““If a parent neglects to provide articles If a parent neglects to provide articles necessary for the parent’s child who is under necessary for the parent’s child who is under the charge of the parent, according to the the charge of the parent, according to the circumstances of a parent, a third person may circumstances of a parent, a third person may in good faith supply the necessaries and in good faith supply the necessaries and recover their reasonable value from the recover their reasonable value from the parent.”parent.”

Liability for child support rests upon a Liability for child support rests upon a relationship between the parent and the child relationship between the parent and the child either through natural means or through either through natural means or through adoption.adoption.

A stepparent (unless that person has adopted A stepparent (unless that person has adopted the child) maintains neither such relationship.the child) maintains neither such relationship.

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2. OBTAINING AN AWARD 2. OBTAINING AN AWARD OF CHILD SUPPORTOF CHILD SUPPORT

A child support award (order) can be A child support award (order) can be obtained basically two different ways: The obtained basically two different ways: The parties can agree on entry of an order, or the parties can agree on entry of an order, or the court can order payment of support in those court can order payment of support in those situations where the parties do not agree.situations where the parties do not agree.

Family Code section 4065 provides that the Family Code section 4065 provides that the parties are free to stipulate to a child support parties are free to stipulate to a child support amount, but that amount is subject to court amount, but that amount is subject to court approval.approval.

The section further directs the court to The section further directs the court to withhold its approval unless the parties withhold its approval unless the parties declare that: see pages 165 and 166.declare that: see pages 165 and 166.

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The calculation of the amount of child The calculation of the amount of child support has become an extremely rigid support has become an extremely rigid process.process.

Deviation from the statutory guidelines, Deviation from the statutory guidelines, even pursuant to a stipulation of both even pursuant to a stipulation of both parents, is not easy to come by.parents, is not easy to come by.

Several avenues are also available to Several avenues are also available to government agencies to collect support government agencies to collect support payments either on behalf of the child and payments either on behalf of the child and the recipient parent or on behalf of the the recipient parent or on behalf of the county itself in welfare situations.county itself in welfare situations.

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

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

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Similarly, in the event the minor child is taken Similarly, in the event the minor child is taken out of the home (typically under the auspices out of the home (typically under the auspices of the juvenile dependency court) and placed of the juvenile dependency court) and placed in foster care, the court may maintain an in foster care, the court may maintain an action against the child’s parents for the action against the child’s parents for the “reasonable costs of support” for the minor “reasonable costs of support” for the minor while the minor child is “placed, or detained while the minor child is “placed, or detained in, or committed to, any institution or place.”in, or committed to, any institution or place.”

The authority for this action is found in The authority for this action is found in Welfare and Institutions Code sections 625 Welfare and Institutions Code sections 625 and 903.and 903.

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Section 3651 also contains authority for the Section 3651 also contains authority for the modification (or revocation, as the court may modification (or revocation, as the court may deem necessary) of preexisting child support deem necessary) of preexisting child support awards, and section 3653 provides that an awards, and section 3653 provides that an award (or modification) of child support may award (or modification) of child support may be made retroactive to the date of filing the be made retroactive to the date of filing the notice of motion or the order to show cause notice of motion or the order to show cause requesting the changerequesting the change

Finally, section 3652 includes a provision for Finally, section 3652 includes a provision for the recovery of attorney’s fees and court the recovery of attorney’s fees and court costs to the prevailing party in these matters.costs to the prevailing party in these matters.

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The legislature created the Department of The legislature created the Department of Child Support Services (DCSS) and charged it Child Support Services (DCSS) and charged it with the duty to “administer all services and with the duty to “administer all services and perform all functions necessary to establish, perform all functions necessary to establish, collect, and distribute child support.”collect, and distribute child support.”

It is not necessary that the recipient of the It is not necessary that the recipient of the child support in question be receiving public child support in question be receiving public assistance.assistance.

For the most part, the only issues that will be For the most part, the only issues that will be addressed in these proceedings are those addressed in these proceedings are those related directly to child support.related directly to child support.

For the most part, custody and visitation and For the most part, custody and visitation and related issues will not be heard in this context.related issues will not be heard in this context.

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3. AMOUNT OF THE 3. AMOUNT OF THE AWARDAWARD

a) a) Historical PerspectivesHistorical Perspectives Without a doubt, the most heavily litigated Without a doubt, the most heavily litigated

issue in the context of child support does issue in the context of child support does not concern the liability for support, but not concern the liability for support, but the amount at which the support should be the amount at which the support should be set.set.

Historically, the establishment of the Historically, the establishment of the amount of child support was primarily left amount of child support was primarily left to the discretion of the trial court.to the discretion of the trial court.

As might be expected, these child support As might be expected, these child support awards varied widely from county to county awards varied widely from county to county and even from courtroom to courtroom and even from courtroom to courtroom within the same county.within the same county.

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b) b) Current Law Concerning Guideline Child Current Law Concerning Guideline Child SupportSupport

Family Code section 4053 sets forth the Family Code section 4053 sets forth the mandatory principles of child support.mandatory principles of child support.

See pages 171 and 172.See pages 171 and 172. The actual algebraic formula for the The actual algebraic formula for the

calculation of guideline child support is calculation of guideline child support is contained in Family Code section 4055.contained in Family Code section 4055.

That formula is expressed as follows:That formula is expressed as follows: CS = K [HN – (H%)(TN)]CS = K [HN – (H%)(TN)]

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In the guideline child support formula, the In the guideline child support formula, the symbols set forth below make reference to the symbols set forth below make reference to the following definitions:following definitions:

CS = child support amountCS = child support amount K = amount of both parents’ income to be K = amount of both parents’ income to be

allocated to child supportallocated to child support HN = high earner’s net monthly disposable HN = high earner’s net monthly disposable

incomeincome H% = high earner’s approximate time of H% = high earner’s approximate time of

physical responsibility for the childrenphysical responsibility for the children TN = the parties’ total monthly net incomeTN = the parties’ total monthly net income

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Gross income includes income (as that term is Gross income includes income (as that term is generally construed by the IRS) from all generally construed by the IRS) from all sources, and net disposable income is gross sources, and net disposable income is gross income less all allowable deductions (usually income less all allowable deductions (usually state and federal taxes, union dues, mandatory state and federal taxes, union dues, mandatory retirement benefits, health insurance retirement benefits, health insurance deductions, and items of a similar nature).deductions, and items of a similar nature).

Family Code section 4057.5 puts to rest the Family Code section 4057.5 puts to rest the question of whether income of a new spouse, or question of whether income of a new spouse, or a live-in partner, will be included in the a live-in partner, will be included in the determination of the obligor or obligee’s determination of the obligor or obligee’s income: it will not.income: it will not.

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In the following example, child In the following example, child support of $3,444.48 is allocated support of $3,444.48 is allocated among four children as follows:among four children as follows:

Youngest child: $1,497.60Youngest child: $1,497.60 Next youngest: $898.56Next youngest: $898.56 Third youngest: $599.04Third youngest: $599.04 Oldest child: $449.28Oldest child: $449.28 See page 176.See page 176.

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By allocating the child support in this By allocating the child support in this manner, it ensures that the highest portion of manner, it ensures that the highest portion of the support is allocated to the youngest child.the support is allocated to the youngest child.

By so doing, as the older children reach the By so doing, as the older children reach the age of majority and no longer receive child age of majority and no longer receive child support payments, not only will the parties support payments, not only will the parties know by how much the award will drop, but know by how much the award will drop, but the drop-off will be the lowest possible the drop-off will be the lowest possible amount, thus ensuring that the remaining amount, thus ensuring that the remaining children will continue to receive the amount children will continue to receive the amount required by the guidelines.required by the guidelines.

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The court has the authority to look beyond the The court has the authority to look beyond the plain mathematical calculation to determine plain mathematical calculation to determine income and to impute to the payor parent (that income and to impute to the payor parent (that is, pretend as if that person was in fact is, pretend as if that person was in fact earning) income from the higher paying earning) income from the higher paying “earning capacity” employment.“earning capacity” employment.

The purpose behind this is to discourage The purpose behind this is to discourage parents with an otherwise high earning parents with an otherwise high earning capacity from deliberately suppressing their capacity from deliberately suppressing their income by taking a low-paying job in an income by taking a low-paying job in an attempt to deprive their children of adequate attempt to deprive their children of adequate and reasonable child support.and reasonable child support.

See example on pages 176-177.See example on pages 176-177.

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c) c) Statutory Add-Ons and DeductionsStatutory Add-Ons and Deductions There is a statutory presumption that There is a statutory presumption that

the amount determined pursuant to the the amount determined pursuant to the guidelines is, in fact, the correct order.guidelines is, in fact, the correct order.

The court can, however, deviate from The court can, however, deviate from the guideline amount upon a finding the guideline amount upon a finding that rebuts the statutory presumption that rebuts the statutory presumption that the amount arrived at pursuant to that the amount arrived at pursuant to the guidelines is correct and should be the guidelines is correct and should be ordered in all cases.ordered in all cases.

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Once the calculation of net income has been Once the calculation of net income has been determined to the court’s satisfaction as regards determined to the court’s satisfaction as regards an “earning capacity” analysis, there are certain an “earning capacity” analysis, there are certain mandatory and discretionary add-ons and mandatory and discretionary add-ons and reductions to the net income as provided by statute reductions to the net income as provided by statute that may act to increase (or in some cases that may act to increase (or in some cases decrease) net income and in so doing lower the decrease) net income and in so doing lower the amount of the child support award.amount of the child support award.

The concept of a The concept of a hardship deductionhardship deduction is defined by is defined by statute at sections 4070 and 4071 of the Codestatute at sections 4070 and 4071 of the Code

Those sections provide that the hardship deduction Those sections provide that the hardship deduction will be allowed only in cases of “extreme financial will be allowed only in cases of “extreme financial hardship,” arising from the following statutorily hardship,” arising from the following statutorily defined circumstances:defined circumstances:

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(1) Extraordinary health expenses for which the (1) Extraordinary health expenses for which the parent is financially responsible, and uninsured parent is financially responsible, and uninsured catastrophic losses.catastrophic losses.

(2) The minimum basic living expenses of either (2) The minimum basic living expenses of either parent’s natural or adopted children for whom the parent’s natural or adopted children for whom the parent has the obligation to support from other parent has the obligation to support from other marriage or relationships who reside with the parent.marriage or relationships who reside with the parent.

The allowance of these hardship deductions is The allowance of these hardship deductions is entirely discretionary with the court, and the Code entirely discretionary with the court, and the Code specifically directs the court to state, in writing or on specifically directs the court to state, in writing or on the record, the reasons it had found in support of the the record, the reasons it had found in support of the deduction, document the amount of the deduction deduction, document the amount of the deduction and the manner in which it was calculated, and, if and the manner in which it was calculated, and, if possible, to specify the duration of the hardship.possible, to specify the duration of the hardship.

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In addition to In addition to deductionsdeductions from income, the from income, the Code also provides that certain items either Code also provides that certain items either shallshall or or maymay be added to the child support be added to the child support award.award.

These are listed in section 4062:These are listed in section 4062: See page 178.See page 178. Generally, to the extent the above items are Generally, to the extent the above items are

added on to the child support calculation, the added on to the child support calculation, the court will apportion them equally between court will apportion them equally between the two parents unless the court finds the the two parents unless the court finds the existence of good cause to apportion them existence of good cause to apportion them differently.differently.

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d) d) Computer-Assisted Support CalculationsComputer-Assisted Support Calculations There are variety of computer software programs There are variety of computer software programs

that are preprogrammed with the guideline formula that are preprogrammed with the guideline formula and are designed to take a gross income figure as to and are designed to take a gross income figure as to each parent and apply the various add-ons and each parent and apply the various add-ons and deductions to that amount to determine ultimate net deductions to that amount to determine ultimate net income for each parent.income for each parent.

The program will then apply all the calculations, and The program will then apply all the calculations, and present a guideline child support amount.present a guideline child support amount.

Family Code section 3830 provides that no court Family Code section 3830 provides that no court may use any of these computer software programs may use any of these computer software programs unless it conforms to the rules of court adopted by unless it conforms to the rules of court adopted by the judicial council prescribing standards for these the judicial council prescribing standards for these programs.programs.

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4. ADDITIONAL ASPECTS 4. ADDITIONAL ASPECTS OF CHILD SUPPORTOF CHILD SUPPORT

It is generally thought that once an amount of It is generally thought that once an amount of child support has been established, payment child support has been established, payment of that amount will (for the most part) relieve of that amount will (for the most part) relieve an obligor parent of the obligation to pay any an obligor parent of the obligation to pay any additional sums for the support or additional sums for the support or maintenance of the child.maintenance of the child.

There are, however, exceptions to this rule.There are, however, exceptions to this rule. Of particular note are the provisions found at Of particular note are the provisions found at

Chapter 7 of Division 9, entitled “Health Chapter 7 of Division 9, entitled “Health Insurance,” and those found at Chapter 8 of Insurance,” and those found at Chapter 8 of that Division entitled “Deferred Sale of Home that Division entitled “Deferred Sale of Home Order.”Order.”

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a) a) Mandatory Health InsuranceMandatory Health Insurance Family Code section 3751 has established Family Code section 3751 has established

mandatory provisions requiring maintenance mandatory provisions requiring maintenance of health insurance coverage for a supported of health insurance coverage for a supported child.child.

The court shall require that health insurance The court shall require that health insurance coverage for a supported child shall be coverage for a supported child shall be maintained by either or both parents if that maintained by either or both parents if that insurance is available at no cost or at a insurance is available at no cost or at a reasonable cost to the parent.reasonable cost to the parent.

Health insurance coverage shall be rebuttably Health insurance coverage shall be rebuttably presumed to be reasonable in cost if it is presumed to be reasonable in cost if it is employment-related group health insurance or employment-related group health insurance or other group health insurance.other group health insurance.

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The court has the power to require the employer of The court has the power to require the employer of the obligor parent to enroll the supported child in the obligor parent to enroll the supported child in the health insurance plan and to deduct the full cost the health insurance plan and to deduct the full cost of the premiums for that coverage from the obligor’s of the premiums for that coverage from the obligor’s earnings.earnings.

Family Code section 3766 gives the employer the Family Code section 3766 gives the employer the obligation to commence coverage consistent with the obligation to commence coverage consistent with the court’s for health insurance assignment within ten court’s for health insurance assignment within ten days after being served with the assignment order.days after being served with the assignment order.

Clearly, then, not only can the employer be held Clearly, then, not only can the employer be held liable for the costs of medical services provided, but liable for the costs of medical services provided, but it also runs the risk of being held in contempt of it also runs the risk of being held in contempt of court and facing the fines and penalties associated court and facing the fines and penalties associated with such a finding.with such a finding.

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b) b) Deferred Sale of Home OrderDeferred Sale of Home Order A somewhat rare, but no unheard of component of a A somewhat rare, but no unheard of component of a

child support award is found not in the payment of child support award is found not in the payment of cash, but in the court’s willingness to allow the cash, but in the court’s willingness to allow the recipient parent to remain in the family home with recipient parent to remain in the family home with the minor child for so long as the child remains a the minor child for so long as the child remains a minor or continues to live with that parent.minor or continues to live with that parent.

Such an order is called a Such an order is called a Duke orderDuke order, now referred to , now referred to as the as the deferred sale of home orderdeferred sale of home order..

The Marriage of Bozeman, together with the The Marriage of Bozeman, together with the Marriage of Hermann established the basic Marriage of Hermann established the basic guidelines for deferring the sale of a family home guidelines for deferring the sale of a family home under circumstances where it is “economically under circumstances where it is “economically unfeasible” to award the house to either parent.unfeasible” to award the house to either parent.

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The The DukeDuke court established the rationale of court established the rationale of the deferred sale of family home award as the deferred sale of family home award as follows: “Where adverse economic, emotional follows: “Where adverse economic, emotional and social impacts on minor children and the and social impacts on minor children and the custodial parent which would result from an custodial parent which would result from an immediate loss of a long-established family immediate loss of a long-established family home are not outweighed by economic home are not outweighed by economic detriment to the non-custodial party, the detriment to the non-custodial party, the court shall, upon request, reserve jurisdiction court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.”and defer sale on appropriate conditions.”

See pages 185 and 186 for factors.See pages 185 and 186 for factors.

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c) c) Expedited Child Support OrderExpedited Child Support Order Federal legislation has called for expedited Federal legislation has called for expedited

processes pertinent to establishing and processes pertinent to establishing and enforcing child support orders.enforcing child support orders.

Family Code sections 3620 et seq. provide Family Code sections 3620 et seq. provide a mechanism by which a party may apply a mechanism by which a party may apply ex parte for an order requiring payment of ex parte for an order requiring payment of child support during the pendency of the child support during the pendency of the underlying action.underlying action.

The applicant for one of these expedited The applicant for one of these expedited child support orders need not be a parent.child support orders need not be a parent.

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Indeed, more often than not the district attorney or Indeed, more often than not the district attorney or some similar governmental agency will be the party some similar governmental agency will be the party taking advantage of this new procedure in order to taking advantage of this new procedure in order to obtain relatively immediate child support orders to obtain relatively immediate child support orders to offset welfare being paid on behalf of unsupported offset welfare being paid on behalf of unsupported minor children.minor children.

Pursuant to Family Code section 3629, at the Pursuant to Family Code section 3629, at the hearing on the application, all parties who are hearing on the application, all parties who are parents of a child (or children) and who are the parents of a child (or children) and who are the subjects of the application procedure, are required subjects of the application procedure, are required to produce copies of their most recently filed federal to produce copies of their most recently filed federal and state income tax returns, which documents may and state income tax returns, which documents may be reviewed by the other parties to the action and be reviewed by the other parties to the action and may also be reviewed by the court.may also be reviewed by the court.

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d) d) Application of Case Law to Child Support AwardsApplication of Case Law to Child Support Awards Case law has clearly established that a minor child is Case law has clearly established that a minor child is

entitled to be maintained in a style and condition entitled to be maintained in a style and condition consistent with both of its parents’ position in life.consistent with both of its parents’ position in life.

Simply providing for necessities is not enough if the Simply providing for necessities is not enough if the parents can afford more.parents can afford more.

The court is vested with wide authority to The court is vested with wide authority to investigate all aspects of both parties’ income investigate all aspects of both parties’ income positions, and if one parent can show that the other positions, and if one parent can show that the other parent is deliberately depressing his or her income parent is deliberately depressing his or her income to avoid financial responsibilities vis-à-vis their to avoid financial responsibilities vis-à-vis their children, the court has the authority to make orders children, the court has the authority to make orders for child support based not upon the parties’ actual for child support based not upon the parties’ actual earnings, but on the parties’ ability to earn.earnings, but on the parties’ ability to earn.

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C. MODIFICATION; TERM. C. MODIFICATION; TERM. OF CHILD SUPPORTOF CHILD SUPPORT

In order to modify an award for child support one In order to modify an award for child support one must show that a significant change in must show that a significant change in circumstances has taken place since enactment circumstances has taken place since enactment of the prior order.of the prior order.

As a result of this limitation on modification of As a result of this limitation on modification of child support awards, it is prudent to include a child support awards, it is prudent to include a recital of exactly what the circumstances of the recital of exactly what the circumstances of the parties are when entering into an agreement to parties are when entering into an agreement to provide for support.provide for support.

This recital should include the circumstances This recital should include the circumstances related to the standard of living of the parties, related to the standard of living of the parties, the income and expenses of each party, and any the income and expenses of each party, and any particular facts or circumstances surrounding particular facts or circumstances surrounding the minor child that might have a bearing on the minor child that might have a bearing on monetary issues.monetary issues.

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1. AGE OF MAJORITY1. AGE OF MAJORITY

As a general rule, a Family Code child support As a general rule, a Family Code child support order terminates when the child reaches the age order terminates when the child reaches the age of majority.of majority.

Subject to various exceptions, the duty to pay Subject to various exceptions, the duty to pay child support, which generally extends only to child support, which generally extends only to minor children, will terminate when that child minor children, will terminate when that child turns 18.turns 18.

One of the exceptions to the termination of child One of the exceptions to the termination of child support liability as of the age of 18 concerns support liability as of the age of 18 concerns children who are over the age of 18 but are still children who are over the age of 18 but are still attending high school full-time, residing with a attending high school full-time, residing with a parent, and are not married.parent, and are not married.

Support will continue for this child until he turns Support will continue for this child until he turns 19 or graduates from high school, whichever first 19 or graduates from high school, whichever first occurs.occurs.

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An additional exception to the age of An additional exception to the age of majority termination is the child support majority termination is the child support obligation set forth in Family Code section obligation set forth in Family Code section 3910.3910.

Under that section, any children, including Under that section, any children, including adult children who are “incapacitated from adult children who are “incapacitated from earning a living and without sufficient earning a living and without sufficient means,” can continue to receive child means,” can continue to receive child support beyond the age of 18.support beyond the age of 18.

Because these orders are not made on the Because these orders are not made on the basis of the child’s minority, the age of basis of the child’s minority, the age of majority will not be a terminating event.majority will not be a terminating event.

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Family Code section 3587 allows the court to Family Code section 3587 allows the court to approve a stipulated agreement for the support approve a stipulated agreement for the support of any adult child or for the continuation of of any adult child or for the continuation of child support after that child has obtained child support after that child has obtained majority, and to enter a support award majority, and to enter a support award accordingly.accordingly.

The right to enforce support arrearages is not The right to enforce support arrearages is not lost when the child attains the age of majority.lost when the child attains the age of majority.

The period of time that is “otherwise allowed” The period of time that is “otherwise allowed” for the enforcement of child, family or spousal for the enforcement of child, family or spousal support order is established by Family Code support order is established by Family Code section 291, which provides that such orders section 291, which provides that such orders may be enforced “until paid in full,” no matter may be enforced “until paid in full,” no matter how long that may take.how long that may take.

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2. EMANCIPATION OF 2. EMANCIPATION OF MINORS LAWMINORS LAW

Anther event that will trigger the termination Anther event that will trigger the termination of child support is the emancipation of the of child support is the emancipation of the minor child.minor child.

For purposes of child support liability and the For purposes of child support liability and the parental obligation to provide such child parental obligation to provide such child support, and emancipated minor is considered support, and emancipated minor is considered to be one over the age of majority regardless to be one over the age of majority regardless of the actual chronological age of that person.of the actual chronological age of that person.

Family Code section 7002 declares a person Family Code section 7002 declares a person under 18 to be an emancipated minor if any of under 18 to be an emancipated minor if any of the following conditions are met: see page the following conditions are met: see page 193.193.

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Family Code section 7050 provides that an Family Code section 7050 provides that an emancipated minor will be considered an emancipated minor will be considered an adult for the following purposes: see pages adult for the following purposes: see pages 193 and 194.193 and 194.

To petition the court for emancipation, the To petition the court for emancipation, the child must be at least 14 years of age.child must be at least 14 years of age.

The petition must also establish (under The petition must also establish (under penalty of perjury) that the child is willingly penalty of perjury) that the child is willingly living separate and apart from his or her living separate and apart from his or her parents with their consent or acquiescence.parents with their consent or acquiescence.

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The child must also establish to the court’s The child must also establish to the court’s satisfaction that he is managing his own financial satisfaction that he is managing his own financial affairs and in that regard must supply the court affairs and in that regard must supply the court with his own income and expense declaration with his own income and expense declaration pursuant to Judicial Council form FL-150.pursuant to Judicial Council form FL-150.

The minor must also prove that the source of The minor must also prove that the source of income is not derived from any activity declared income is not derived from any activity declared to be a crime by the laws of the State of California to be a crime by the laws of the State of California or the United States.or the United States.

Notice of the minor’s petition for emancipation is Notice of the minor’s petition for emancipation is given to the child’s parents or guardian or any given to the child’s parents or guardian or any other person entitled to custody of the child.other person entitled to custody of the child.

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Just as there are circumstances that terminate Just as there are circumstances that terminate the liability for child support, certain other the liability for child support, certain other circumstances that might be thought to circumstances that might be thought to terminate that liability will not.terminate that liability will not.

For example, child support obligations are not For example, child support obligations are not dischargeable in bankruptcydischargeable in bankruptcy

Another such event is the death of a Another such event is the death of a supporting parent.supporting parent.

Assuming that the support obligation is Assuming that the support obligation is presented in a court order or marital presented in a court order or marital settlement agreement, however, that order is settlement agreement, however, that order is enforceable directly against the estate of the enforceable directly against the estate of the deceased parent by filing a creditor’s claim in deceased parent by filing a creditor’s claim in the probate action.the probate action.

Date post:	23-Dec-2015
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CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Five Child Support.

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