Child Support
Topics covered here include:
- Fundamentals
- Duration of Child Support
- Amount of Child Support
- Statewide Uniform Guideline for Determining Child Support Awards
- Determination of Income for Support
Each parent is obligated by law to support the minor children of the marriage. This obligation extends, subject to some exceptions, until the child reaches the age of 18 years.
The obligation to support minor children cannot be waived by either parent and is a right enjoyed by the child, not the parent. Hence, a parent cannot agree the other parent has no duty of support of a child. It is a right the child can enforce by itself, if necessary, although the custodial parent is given the legal right to seek child support on the child’s behalf.
The parties to a marriage CAN agree to extend liability for child support beyond the time required. If the parties do so agree, the child can enforce the terms of that agreement even if the parents do not. For example, the parties can agree child support will be payable until the child graduates from college.
The normal period of the obligation to provide support for a minor child extends until their 18th birthday. Some of the exceptions to this rule are:
- Emancipation – Where the child has married, he or she is no longer a minor child for purposes of the Family Code and support is no longer required. Likewise, if a child has been declared legally emancipated, the support obligation ceases. This is a formal procedure and is not the same as a child leaving home.
- High School Students – The support obligation continues for a child who is a full time high school student, not married and not self-supporting, until the child either completes the 12th grade or reaches age 19, whichever first occurs.
- Incapacitated Adult Child – To the extent of their ability, both parents have an equal responsibility to support a child of whatever age who is incapacitated from earning a living and without sufficient means. There must be a mental or physical handicap preventing the child from being able to work or at least proof of inability to find any job due to factors beyond the child’s control. The fact the child is in college is not sufficient to trigger this provision of the law. There must be some disability preventing employment.
- Agreement of the parents – The parents of a child may agree to continue providing support for a child past the age of majority. Such an agreement is enforceable by the court. For example, the parents could agree to provide support of a child through college.
While the parties can agree between themselves as to the amount and method of payment of child support, their agreement is not binding on the Court. State law specifies the minimum levels of child support allowable and the courts follow these laws very strictly.
Child support amounts are computed according to a formula adopted by the legislature. Courts routinely require the parties to submit a document showing that the amount of child support they have agreed upon meets or exceeds the state law minimums. It may, therefore, be necessary for you to consult a California attorney to obtain a written computation showing the law has been complied with.
It is not known how the courts will deal with this issue when the parties appear without an attorney. If the party receiving child support is receiving welfare benefits, special rules apply to the determination of child support amounts. The agreement between the parties must be approved by the Department of Child Support Services of the county in which the child resides. Some of the factors that will affect the amount of child support are:
- The income of each party.
- The reasonable expenses of the parties. Not all expenses are considered and this factor is much less important than income. The court will ignore expenses if it is not in the best interest of the child.
- The amount of time each party has custody of the child. Thus, visitation with the non-custodial party will reduce the amount of support payable by that party.
- Any extraordinary child care expenses, such as day care or medical costs.
Child support amounts agreed to by the parties cannot be made non-modifiable. Any agreement between the parties must be approved by the Court and must conform to the State guidelines unless the Court approves.
For the Court to approve an agreed upon child support order, it must find the following:
(a) Both parties are fully informed of their rights;
(b) The order is agreed to without coercion or duress;
(c) The agreement is in the child’s best interest;
(d) The child’s needs will be adequately met by the agreed upon amount; and
(e) There is no public assistance being provided nor applied for.
If the amount calculated under the formula results in a positive number, the higher earner shall pay that amount to the lower earner. If the amount calculated under the formula results in a negative number, the lower earner shall pay the absolute value of that amount to the higher earner.
Unless the court orders otherwise, the order for child support shall allocate the support amount so the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest child is the difference between that amount and the amount for two children, with similar allocations for additional children.
However, this paragraph does not apply to cases where there are different time-share arrangements for different children or where the court determines the allocation would be inappropriate in the particular case.
Determination of Income for Support
The code speaks of net monthly disposable income. This is a term of art and you should have an idea about how it is defined.
- First, you cannot include income from the other party’s new spouse. Only the income of the spouse themselves can be considered. This is a change in the law since 1992 and orders issued prior to January 1, 1994 might be different and now subject to modification.
- To arrive at the net monthly disposable income you first start with the gross annual income for each parent. From this are allowed certain deductions. Included in gross income are:
(a) Income from commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment benefits, social security benefits and spousal support actually received from another person;
(b) Income from a business proprietorship, based on gross receipts;
(c) The Court may also include employee benefits taking into consideration the benefit to the employee and any reduction in living expenses;
(d) Lottery winnings;
(e) Federal benefits.
- Excluded from gross income are:
(a) Income from child support payments received from another person;
(b) Income from public assistance.
Note that under special circumstances, a party who is a low wage earner AND is capable of earning more may be charged with “imputed income.”
If the Court believes one parent has voluntarily reduced his or her wages, no matter how justified, it may compute child support based upon that parent’s “imputed income” — the amount they could be earning.
- Permissible deductions from gross earnings are:
(a) State and federal income taxes. This is not necessarily the actual withheld amount, but rather what should be withheld under the person’s circumstances. The tax effects of spousal support are not to be considered in this regard however (even though they can be considered for purposes of spousal support determinations);
(b) FICA or equivalent contributions;
(c) Mandatory Union dues and retirement benefit contributions (required as a condition of employment);
(d) Health and state disability insurance premiums for the parent and his/her minor children;
(e) Any court ordered child or spousal support actually being paid to another person not a party to this case;
(f) Job related expenses such as tools, uniforms, and possibly parking, transportation and mileage;
(g) Hardship expenses, including extraordinary health expenses for which the parent is responsible, uninsured catastrophic losses, minimum basic living expenses for children of other marriages for whom the parent is responsible. This is a complex topic and we suggest you seek legal counsel in this regard.
Earning Capacity
Instead of basing child support on actual net monthly disposable income, the court has the power to base its order on the parents earning capacity. Hence, where one parent has voluntarily reduced his or her income, the court has awarded support based upon what they could have earned instead of what they actually earned.
Examples are where a parent voluntarily entered the priesthood, went on sabbatical, refused employment, returned to college, etc.
Each case presents its own circumstances and there is no formula in such matters, and the court has the power to base its support order on the parents’ ability to earn. You should seek legal counsel in this type of case.
Child Support Options
Some optional provisions to add to your child support.
- Medical Insurance. One of the most important expenses a custodial parent faces at times is with regard to medical expenses. Some choices about how to provide for payment of health related expenses for the child(ren) are:
(a) Where one or both party has available medical insurance for the child(ren) through employment at no or reasonable cost, the law provides that the parent who has that benefit must provide coverage for and pay for the medical expenses covered by that policy.
(b) Where there is no such employment benefit or where the cost of such coverage is beyond the financial ability of the employee, the court can add the reasonable cost of health care to the amount of child support; Even where medical insurance is available to one of the child(ren), you may want to agree costs above the insured coverage will be shared by the two of you equally or in some other proportion.
Where both have insurance coverage, you may wish to agree one policy will be used first and then the other, and after that, expenses will be paid equally or in some other proportion.
The child support order must include a provision requiring the parent obligated to provide health insurance to keep the other parent informed about whether health insurance is available and, if so, the policy information. There are many laws regulating this topic. I suggest you consult legal counsel.
- The parents’ employment, educational, or job- training related child care costs;
- Costs related to the child’s education or special needs;
- Costs related to visitation. When any of these items are added on to child support, the court is to divide these equally except where one parent demonstrates that another division would be more appropriate.
The Department of Child Support Services has developed significant tools for the recovery of child support in such cases and should be consulted immediately if you are on AFDC or any form of welfare. They will both obtain an initial order for support and seek increases and enforcement of existing orders.
Because of the overwhelming number of cases presented for action by this department, it is sometimes difficult to get an appointment with them and may be difficult to get your case scheduled. However, if you are on public assistance anyway, the money recovered will go to the county to partially reimburse it for payments under public assistance programs
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