The Realities Of Filing Your Own Modification For Child Support
My experience in the child support began with the Los Angeles County District Attorney’s Office who use to oversee the establishment and enforcement of child support court orders for both welfare and non-welfare custodial parents. Today, the state agency, Department of Child Support Services, is responsible for the massive collection of child support for children residing in California and other states and countries. The powers of this agency is to be reckoned with—they can suspend the obligor’s driver’s license, deny the issuance or a passport or renewal thereof, intercept federal and state tax returns and arrears (unpaid child support) is non-dischargeable in bankruptcy court.
Because of the tremendous powers of these state agencies, I strongly urge my clients to pay and monitor their support orders carefully. I recently had a client who did not reside in California while the minor-at-issue and the custodial parent lived in the state. Due to change of circumstances, he filed an Order to Show Cause re: modification and determination of arrearages (refund). It is not uncommon for many non-custodial parents to file their own paperwork—usually with the assistance of a family law facilitator. But the challenge is not necessarily drafting and filing the paperwork. The hard part is when you must present your case to the Child Support Attorney without the assistance of an attorney or an effective one.
A brief overview of how child support orders are developed is necessary. To get support orders, you, the other parent or the child support agency must first start a court case. The kind of case depends on whether or not the parents are married. For married parent, cases commence in one of the following scenarios: Divorce, Legal Separation, Annulment, Domestic Violence Restraining Order, Petition for Custody and Support of Minor(s) and Child Support Enforcement case. For non-married: Domestic Violence Restraining Order, Parentage case, Petition for Custody and Support of Minor(s) and Child Support Enforcement case.
In California, and in most states, the amount one parent is required to pay for child support is based on a formula, commonly referred to as the “guideline." For a welfare (AFDC and/or MEDICAL), the court will not deviate from the guideline amount. The monies belong to the government. As for non-welfare custodial parent, she/he can agree to deviate from the guideline since all the monies belong to her/him.
The saying “garbage in, garbage out" usually means many things but for determining the guideline support, it is crucial that collection of the correct figures to be provided in this formula is critical. For example, my client was not aware of all appropriate deductions, credits and hardships that he was entitled to. Moreover, since the parent was not on welfare, a figure less than guideline were possible.
Income (both gross and net), rental income, tax filing status, number of tax exemptions are required. But it is the other required deductions that an attorney should closely scrutinize. These are the other child support being paid, mandatory union dues/retirement, health insurance paid for the child and current family, “hardship" deductions, extraordinary health expenses and uninsured catastrophic losses. The case laws are specific as to what is deemed hardship deductions, extraordinary health expenses and uninsured catastrophic losses. It is imperative you hire an attorney that is aware of parameters of these items.
As for visitation, an accurate percentage must be calculated. The intent of the law is that the parent should be compensated for the time the child is with the non-custodial parent. Hence, the higher percentage of visitation, the lower the child support amount. Additional support such as childcare or educational expenses must also be closely examined. Documentation should be requested to show proof monies are being paid for such. As for educational expenses, the law is clear, as to what type of expenses are allowable.
Either parent can bring a motion to court if there are changes such as unemployment, a newborn, uninsured medical problem. I tell my clients all the time, if there are any changes, they must call me immediately so I can file the necessary documents in court. Otherwise, arrears accrue if non-payment occurs and the nightmare begins.