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What's the specific California Family Code where it states parent in arrears cannot file modification/motions for custdy/visit'n

Pomona, CA |

Absent parent abandoned children, has arrears in six-figures, now after I reopened child support case he responds by filing modifications to custody/visitation and it has caused me extra financial hardship to litigate...I am already poor from raising the children alone without any support for 12 years & now he is throwing money into the case rather than pay the children..he's already spent at least $6,000 on the case. I've heard there's a law that he (or anyone in his similar position) needs to bring his support current before he can file/modifiy any custody/visitation. Please let me know where that law is located so I can get an order for him to pay the children their arrears first. He's trying to make me fold up my hand to be out of his game...like a poker match.

Attorney Answers 6


  1. Best answer

    You may be getting confused with a party who has been found guilty of contempt for non payment of child support. If a party has been adjudicated in contempt for nonpayment of child support that party cannot bring a proceedings to modify the underlying child support order until he or she has "purged" (paid) the contempt. Schubert v. Super. Ct (1930) 109 CA 633.
    The above will not affect his right to pursue custody though. You, of course, have every right to make your arguments that he is only requesting additional custody time BECAUSE you opened your child support case. Good luck.


  2. You should consult a family law attorney to guide you through this process. I'm not aware of such a rule. If you were indigent, or lost your job, you can't see your kids? I think that's incorrect. Best to consult with a family law lawyer out in Pomona. There are many of them.


  3. The fact that he is trying to modify custody or support will not erase the arrears he already owes. If he has a change in circumstances that would warrant or justify a modification of support going forward or justify a change in the current custody order, he has the right to bring the motion. Until there is a new order, the prior orders remain in full force and he continues to owe. Even with a new order, he will continue to owe on the arrears and interest will continue to accrue. You should communicate with CSSD and make sure they are aware of Dad's pending motion. In addition to having opened a CSSD case, you can also get an order for determination of the amount of arrears in your superior court case (if you have one).


  4. I am not aware of the specific code section you think exists in the California Family Code. It is my opinion that it does not exist, and that the absent parent (father) will actually get his day in Court on modifying custody & visitation. You could nevertheless look at Family Code sections 3046 and 7822 (SEE part (a)(3)) and think about whether the father technically abandoned the children. It may be difficult for the father to get much time if the Court finds that he abandoned.

    Is DCSS involved in your case? They can appear "in the public interest" on child support issues, and you may be able to get what amounts to free legal services -- allowing you to litigate without incurring so much further cost. You should contact them.

    As stated above -- I have NOT actually stated any legal opinion, because I need to know more before I can start to form one.


  5. There is no "code" on this subject. There is a doctrine called the "Disentitlement Doctrine," which speaks to this issue and there are numerous cases on the subject. Generally, the law is that you cannot request affirmative relief on the same issue if you are standing in contempt. You do not have to be in contempt, just in a position where you are violating the Court Order. If the absent parent is acting in this manner and is now requesting modification to support, he or she may be disentitled.


  6. Ask DCSS to file a contempt action on the child support arrears if they haven't already. In terms of the custody/visitation issues, you can file a motion to terminate your ex's parental custody rights based on abandonment, which will cut off all of your ex's parental rights and obligations regarding your child. However, this might be tricky if there is no new father willing to adopt
    the child as it is the goal of the state to obtain support for minors until the minor turns 19 or
    graduates from high school, whichever comes first. I suggest you speak to an experienced
    family attorney who is versed in termination of parental rights and state child support issues. Good Luck!

    This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice.

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