In most cases, child support refers to a Court order for one parent to pay the other parent a monthly payment to help provide for the living expenses of the minor child (or children).
How Child Support is Brought Before the Court: For the Court to have the power to issue a child support order a proper underlying court action must first be filed. For example, if the parents are married, child support can be part of an action for divorce or legal separation. Child support between parents who are married to each other can also be sought through a Petition for Custody and Support of Minor Children. Non-married parents can seek child support by filing a parentage action. Child support orders may also be sought as part of an action seeking a Domestic Violence restraining order.
Child Support Principles: California law stresses the need for each parent to be financially responsible for the care of their children. Family Code Section 4053 states many of the principles that a court should follow in arriving at a child support order. This Section, among other things, states:
- "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."
- "Both parents are mutually responsible for the support of their children."
- "Each parent should pay for the support of the children according to his or her ability."
- "Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children."
- "Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states."
How Child Support is Calculated:
California has issued statewide uniform guidelines as to how child support should be calculated.by a California Court. Family Code Section 4055 details a complicated algebraic formula for the Court to use in arriving at a child support amount. This formula uses such items as each parent's income, the relevant deductions of each parent, and the time each parent spends with the child (or children) to arrive at a child support amount. Computation of the guideline formula is so complicated that there are Court accepted computer programs such as Dissomaster and Xspouse that adhere to the statewide formula and will calculate the guideline child support amount once the necessary information is imputed into the program include:
Problems That Arise in Attempting To Calculate Guideline Child Support:
Even with statewide guidelines detailing the formula to calculate child support and with Court accepted computer programs designed to follow the guideline formula so to provide a guideline child support calculation, child support can still be a heavily disputed issue. Examples of arguments that are regularly made regarding the calculation of child support:
- The claim that a self-employed parent is under-reporting his or her income;
- The claim that an unemployed parent should be held to his or her earning ability;
- Whether, and how, possible future overtime and bonus income earned by either or both parents should be considered in calculating a child support amount.
In addition to disputes regarding how to calculate each parent's income, there may be disagreements regarding such issues as the calculation of the custodial timeshare followed by the parents and the proper considerations of the deductions of each parent.
Deviation from Guideline Child Support:
The guideline amount of child support as calculated by the statewide formula is presumed to be the correct amount of child support for the Court to order. The Court may only order a child support amount different than the guideline formula amount if it makes a finding that the guideline child support formula amount would be unjust or inappropriate to apply in a particular case. The party arguing for the Court to deviate from the guideline child support amount has the burden of proof to rebut by admissible evidence the presumption that the guideline support amount is the proper for the Court to adopt as its child support order.
Family Code Section 4056 (a) requires the Court to state the following information, in writing or on the record, whenever it is ordering an amount for child support that differs from the statewide uniform guideline formula:
- The amount of support that would have been ordered under the guideline formula.
- The reasons the amount of support ordered differs from the guideline formula amount.
- The reasons the amount of support ordered is consistent with the best interests of the children.
Family Code Section 4057(b) lists a number of factors which, if present, can support a Court's decision to give a child support order for an amount different from the amount calculated by the guideline formula. The most common reason for a Court to deviate from the guideline formula amount is because the parties have knowingly agreed to a child support amount different than the guideline formula amount.
Health Insurance Coverage as Part of the Child Support Order:
Family Code Section 3751 requires that when a court issues a child support order, "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."
Child Support Add-Ons:
In addition to the basic child support amount calculated by the statewide formula, a parent can also be ordered to contribute towards certain expenses that are for the benefit of the child (or children). Payment for these expenses is called child support add-ons. Per Family Code Section 4062 there are two kinds of child support add-ons: Mandatory add-ons and Discretionary add-ons.
- Mandatory add-ons: Family Code Section 4062(a) states the Court shall order the following as additional child support: (1) Child care costs related to employment or to reasonably necessary education or training for employment skills; and (2) Reasonable uninsured health care costs incurred for the children.
- Discretionary add-ons: Family Code Section 4062 states the Court may order the following as additional child support: (1) Costs related to the educational or other special needs of the children; and (2) travel expenses for visitation.
Generally, the Court will order that any child support add-ons be equally split between the parents. . However, upon the request of a parent, the Court may allocate such add-ons in proportion to the parents' net spendable income so long as the Court believes that allocating child support add-ons in this way would be more appropriate.
Modification of a Child Support Order:
A child support order which was made below the guideline formula amount (almost always based on the agreement of the parents at the time) is always modifiable. To modify a child support order that was made at, or higher than, the guideline child support amount the parent who seeks to modify the child support order must show a "change of circumstances" has occurred since the last child support order was made.
Examples of change of circumstances that would justify seeking a modification of child support include:
- The loss of employment by a parent.
- A significant change of income by one or both parents.
- Changes in the needs of the child.
- One parent has a new child from a different relationship.
- Significant change in custodial time share (i.e., in the amount of time each parent spends with the child).
It is important to remember that a child support order remains in effect until a new child support order is issued or until termination by operation of law. Therefore, If change of circumstances have occurred which would justify a change in a child support order, it is vitally important that a request to modify child support be heard and ruled on by the Court.
Termination of Child Support By Operation of Law:
Court-ordered child support ends when the child turns 18 years old so long as the child has graduated from high school. If the18-year-old child is still a full-time high school student and still lives with a parent, child support ends when child graduates high school or turns 19, whichever occurs first.
Child support also ends when the child: a) Marries or registers a domestic partnership; b) Joins the military; c) Is emancipated; or d) Dies.
Parents may agree to support a child longer then the time period detailed above but this is a rare occurrence.
The court may also order that both parents continue to support a disabled adult child who is unable to be self-supporting.
Hire An Experienced Family Law Attorney:
Child support is an important issue that needs to be carefully addressed. Daniel Portillo is an experienced family law attorney who has spent over 25 years handling the complicated child support issues which might be present in any case. Contact Mr. Portillo to help in establishing an initial child support order, help in providing enforcement of your right to payment of child support, and help and in bringing requests to change child support orders when appropriate.