Child Support is one of the most heavily litigated areas of family law, and can lead to repeated, even regular, appearances at court. Unlike other family law issues, the government intervention is a real possibility: your local county Department of Child Support Services can easily become involved in proceedings. Determining support amounts is often quite mechanical, which can lead to unintuitive results for parents who haven’t properly prepared for a hearing. As a result, it is critically important to understand the basic principles behind the child support laws, and how those principles are actually implemented by the courts.
Eligibility to Receive Support
Many parents want to resolve child support with an informal agreement with the other parent. While this can work, it does so only because the court and its enforcement agencies will turn a blind eye to these kinds of agreements, not because the law is designed to accept them.
California law requires that one parent pay child support to the other parent when the parents have a child together and the parents are no longer living together. This is so enmeshed in basic family law that the paperwork necessary to open a case does not permit parties to choose whether support will be an issue in their case. Instead, support is automatically pre-selected as a potential issue if the parties have a minor child eligible to receive support.
Children are eligible to receive support until they become emancipated. This is not quite the same thing as the child becoming an adult. The age of majority is 18 in California, at which point almost every right and responsibility of adulthood is granted to a person. While eligibility for child support theoretically terminates at that same time, there are important exceptions. Child support will not terminate when a child turns 18, if that child is unmarried, a full-time high school student, and is not self supporting. If a child turns 18, is not married, is not financially independent from their parents, and is a full-time high school student, they will continue to be eligible for child support even though the child has legally become an adult. All three criteria must be met for the child to continue to be eligible for child support: If a child leaves high school before his or her 18th birthday for any reason, even if it’s to go to college early, then support won’t continue past the child’s 18th birthday. If a child is married, or is financially independent from the parents, the child also won’t be eligible for child support past the child’s 18th birthday.
These are rare circumstances, however. They don’t apply in most cases. If a child turns 18 during his or her senior year in high school, child support will continue until the child completes high school or turns 19, which ever happens first. In other words, child support eligibility continues until either a child turns 19, or turns 18 and is no longer a full-time high school student because they completed high school or dropped out.
The Child Support Calculation
If a child is eligible to receive support, parents have two options: First, they can agree to an amount and sign an agreement to that effect. Second, they can use the child support guidelines to calculate the amount of guideline child support.
Child support agreements usually are relatively straightforward: The parents sign a set of judicial council forms describing the amount of child support that will be paid, and under what circumstances. A judge must review and sign a stipulation before it can become effective. In most cases, this is completely routine: If the parents agree on the child support amount, and the support amount is not wholly inappropriate, a judge will usually sign off on any stipulation the parties agree to.
If the parents cannot agree on an appropriate amount of child support, they can calculate child support using the child support guidelines. The guidelines are a formula created by statute as the assumed-appropriate amount of child support a parent should be paying. The child support guideline amount will always be the point the court starts from or returns to in a dispute about the amount of child support.
The guideline child support calculation uses the following formula:
CS = K [HN-(H%) (TN)]
Some of these terms are relatively straightforward:
- “CS” is the child support amount.
- “HN” is the net monthly disposable income of the higher-earning parent.
- “H%” is the amount of time the higher earning parent has primary responsibility of the child.
- “TN” is the total net monthly disposable income of both parties.
- “K” is the amount of both parents’ income that can be allocated for child support, as set out by statute.
- If H% is less than or equal to 50% – that is, if the higher-earning parent spends exactly or less than half of the time with primary responsibility of the child – then K is H% + 1. If H% is greater than 50%, then K is (2-H%), multiplied by a fraction which changes by the how large TN is. If you’re interested in calculating support by hand, the lists of fractions can be found here.
Calculating child support by hand is almost never done. In most circumstances, people, and particularly lawyers and judges in family law cases, use specially-designed calculators or computer programs to calculate the guideline child support amount. Most child support calculators require an input of each parent’s pre-tax income, and the amount of time each parent spends with the child. While lawyers and judges often use software purchased specifically for family law attorneys to calculate various scenarios, several free child support calculators can be found online. The Department of Child Support Services maintains one such calculator, and can be found here.
If you decide to calculate child support manually and without using a child support calculator, you may receive a negative number after doing the calculation. It isn’t always true that the non-custodial parent pays child support to the custodial parent, or that the parent who earns more pays child support to the parent who earns less. Instead, the basic premise of child support is that it costs more to raise children in two separate household than it does in one combined household. Both parents likely will be feeling some financial strain.
One parent, however, will be feeling more financial strain than the other. The public policy behind child support is that the more-strained parent should be financially assisted by the less-strained parent. If the child support calculation returns a positive number, the higher-earning parent will pay that amount to the lower-earning parent. If the guideline child support calculation returns a negative number, the lower-earning parent will pay that amount to the higher-earning parent.
It’s rare that the parent who spends less time with the child will receive support instead of paying it to the other parent. When this happens, however, it’s likely because both parents have roughly similar income, and close to an even split of parenting time with the child.
Support Obligations and Parentage
Child support obligations arise automatically when someone is the legal parent of a child. Therefore, disputing whether child support should be paid at all can be quite difficult. If a person is the legal parent of a child, and the two parents live separately, then usually there is no basis to oppose a child support obligation. While there’s room left to dispute who will be paying child support and how much child support will be, the guideline child support calculation limits the issues in dispute to questions of income and visitation time.
Before someone can be obligated to pay child support, they must be the legal parent of a child. A court may make a finding of legal parentage in a parentage action. There are several factual situations which may support a court finding of legal parentage. First, a court will find legal parentage if a person is the child’s biological parent. If a person denies biological ties to a child, courts commonly order a simple genetic test to determine parentage. Second, a child born to a married couple is presumed to be the child of both spouses, and will continue as the child of both spouse unless one of the spouses can offer evidence proving that the child isn’t the biological child of both spouses . Third, a person may be declared the legal parent of a child if the child lives with the person long enough, and the person acts as if the child is that person’s child.
Only two people can be declared the legal parents of a child. Generally speaking, courts are more interested in finding two people to serve as legal parents, instead of ensuring that the best possible candidates are selected. Unless more than two people are submitting competing claims that they should be declared the legal parents of a child, a court will find that the legal parents of a child are the first two people who ask. If additional potential parents later appear, the court may choose to revisit the matter, but any new potential parent must win against all other competing claims from all other parents, and also must show why they should be declared a parent after the initial parentage determination has already occurred.
There is an additional method for being declared a parent which does not require any litigation. A party can sign what’s called a voluntary declaration of paternity, or a “pop dec” A signed voluntary declaration of paternity is a binding judgment. It automatically and immediately giving rise to a potential support obligation.
Voluntary declarations of paternity are commonly used by child support agencies, and they’re also typically offered at hospitals. When a child is born, the hospital will ask both parents to sign a birth certificate. The hospital staff will then offer the father the declaration to sign.
A parent can petition the court to revoke a declaration of paternity for any reason within the first six months after it was signed. A parent can also petition the court to revoke a declaration of paternity for good cause within the first two years after it was signed. After two years, it’s almost impossible for a validly-executed voluntary declaration of paternity to be revoked. At that point, the parent who signed the declaration is potentially subject to a child support obligation until the child emancipates.
Modifying a Child Support Order
People’s circumstances change over time, and a support order that once adequately reflected the lives and relations between parents and children may no longer do so. Fortunately, modifying child support is a simple process, because it’s precisely the same process as calculating child support the first time. Parties can either stipulate and agree to change the amount of child support, or calculate guideline child support using new income or visitation figures.
If the Department of Child Support Services has become involved in your child support case, they may regularly contact you to see if a modification of support is appropriate. However, the court will not do so. This means that, in a divorce, custody or paternity case where the Department of Child Support services was not involved, it is the responsibility of the parties to modify child support as circumstances change. Modifications are not retroactive earlier than the date of the initial request to modify. This means that the earliest date that the Court will order the modified order retroactive to is the date you filed the motion to modify. If your income or the other parent’s income changes, it is important to request a modification as soon as possible. If neither parent asks to modify child support after such a change in income, either one parent is going to be paying more child support than they should, or one parent is going to be paying less child support than they should. The affected parent will not be able to later request reimbursement to fix the discrepancy back to the day the income changed. Again, the earliest date a court can order child support to be retroactive to is the date the request for order or motion to change child support was filed.
Enforcing A Support Order
If a parent fails to make their monthly child support payment, the other parent may seek to collect those unpaid funds. Child support is a heavily-protected interest in California and all other states. Child support can’t be discharged in bankruptcy, and usually takes priority over other creditor’s interests. This means that a parent can’t generally win a child support case by arguing that he or she has “too many bills” or a large car payment. Child support takes priority.
Parents seeking to enforce a child support obligation have several options. The first is a simple finding that the paying party is in arrears. This requires a court hearing to determine the extent to which a party was obligated to pay, but has failed to do so. Making a record for this type of hearing and possible court order is critical, so save all receipts, bank statements, and any other sort of documentation you might have that indicates that the other parent failed to pay. Alternatively, save any records you have that indicate you paid your support obligation on time.
In most child support orders, the court will order parties to split medical costs, child care costs, and the costs of any additional extracurricular activities. These costs can be treated as unpaid arrears, too. So, for example, if the other parent failed to pay their half of braces for your child’s teeth, you wouldn’t be able to secure an order forcing the other parent to pay their one-half share ahead of time. Instead, you need to give the other parent notice of the obligation (the orthodontist bill) and an opportunity to pay their share. If the other parent fails to pay their share, you should pay the entire amount, then file a motion with the court asking the court to order the other parent to reimburse you. You must demonstrate to the court that the other parent should have paid, had opportunity to pay, and didn’t pay.
If a parent is in arrears for child support, it’s important that they pay child support off as soon as possible. Interest accrues on unpaid support at a rate of 10% a year. Arrears don’t disappear when a child turns 18 or is no longer entitled to support. This means that if you miss paying child support by a few hundred dollars early in your child’s life, you might discover several decades later that the State of California believes – correctly – that you owe them thousands of dollars, based on the amount of unpaid child support and the accrued interest. As noted earlier, this obligation can’t be discharged in bankruptcy.
If you are far behind on child support payments, and have a large arrears balance, it might be worth contacting your local Department of Child Support Services and asking about a forgiveness program. Not everyone qualifies for such a program. If you qualify, however, you will likely be able to pay off a portion of your arrears in exchange for extinguishing the rest of the child support debt.
In addition to arrears, parties can use wage garnishing and assignment orders to have support obligations paid directly from a parent’s employer. If child support is part of a divorce, and the divorce case will have a judgment. After the court issues a judgment that includes a child support order, the receiving party can ask the court to issue an earnings assignment order. Courts issue these, and have no discretion not to: if there is a support order in a divorce case and judgment has been entered, the court must issue an earnings assignment order.
Once the court issues an earnings assignment order, the party receiving child support can send the order to the other parent’s employer. The order directs the other parent’s employer to withhold the support obligation from that parent’s paycheck, and send it directly to the other parent.
If there wasn’t a divorce case, but instead the child support obligation stems from either a parentage case, then parties can still request a wage garnishment order. A wage garnishment order has the same effect as an income withholding order. In fact, these two terms – wage garnishment order and income withholding order – are frequently used interchangeably. Unlike an income withholding order, however, a wage garnishment order is not mandatory. Further, for the court to order wage garnishment, the requesting party must file a motion, and give the other side required notice of the hearing. The parent responsible for child support must be more than a month late on support, and must owe more than one month’s support payment.
Finally, if a parent still refuses to pay even if you have taken the above steps, you might ask that the other parent be sanctioned, or found in contempt of court. Each missed monthly payment is its own instance of sanctionable conduct or count for contempt of court. With sanctions, it’s possible for parties to be increasingly fined, which the court may order in addition to any arrears owed. Contempt of court also leads to fines, but can possibly include jail time as well. If the court finds the parent responsible for child support payments is in contempt of court, then the paying parent may be ordered to serve up to 5 days in county jail for each month of child support missed.
The Department of Child Support Services
The Department of Child Support Services, or DCSS, is a local and state-wide department. Each county in California has a local Department of Child Support Services. The county DCSS departments can coordinate with each other and other state agencies. They also get support from both state and federal infrastructure related to child support collection.
DCSS generally don’t start cases on their own unless they are asked to do so: They don’t have the funding or the staffing to investigate whether people who should be paying child support are in fact paying child support. Instead, DCSS typically becomes involved in a case when a party contacts them and asks for them for help. This is usually done by the parent who is supposed to be receiving child support payments from the other parent, but is not. When contacted by a receiving parent, DCSS will usually open a case if one hasn’t yet been opened, or will join into an ongoing case if it has already begun.
The benefit of having DCSS involved in a case is simple: they’ll do the work. If parentage hasn’t been established, they’ll ensure the other parent is legally declared as such, either with a voluntary declaration of paternity, or an order for genetic testing. If the parties can agree to a support amount, they’ll prepare a stipulation for both parties to sign. In the absence of an agreement, they will investigate the facts to determine the income and visitation levels of parties, and present a guideline child support calculation to court. If a parent is non-compliant with an existing support order, and isn’t paying child support, DCSS will seek a determination of arrears and other enforcement mechanisms as necessary.
It’s not all perks, though. DCSS is a government agency, which means speed can be a secondary concern for them as cases work through their systems. Further, DCSS does not act as an attorney for either parent, which means that they won’t represent either parent in Court. They represent the county, and their only interest in the case is ensuring the most up-to-date child support order is followed.
Finally, DCSS does not get involved in anything but support cases. Even if your case is a divorce with custody, support, property division, and so on, DCSS will only involve itself to the extent that support is at issue, and will likely only take the position that they want an order for guideline support. They usually won’t, for example, get more involved in cases where, say, there is a dispute about whether other child expenses, such as day care costs, extracurricular fees, and so on, are reasonable, or are being paid by one parent to the other.
Even with its limitations of scope, resources, and focus, DCSS can be an effective way of ensuring your support obligations are being managed without having to invest a great deal of time or effort.