Recent Posts in Child Support Category

In California, the pendulum continues to swing with respect to our "move-away" law.  Based on three recent published opinions from San Diego County, the custodial parent's presumptive right to move has been significantly strengthened.  In order to understand how California move-away law has been changed by these decisions, it is first necessary to understand the two California Supreme Court decisions that set the ground rules for trial courts dealing with this issue.

            During the mid‑1990s the California Supreme Court published a decision entitled In Re Marriage of Burgess, which held that a custodial parent has the presumptive right to move away with the parties' children, so long as the move is not motivated by vindictive purposes, and that there is a rational basis for the move.  The Supreme Court specifically held that the trial court is not allowed to second guess the custodial parent's reasoning for the move.  Thus, even if the trial court believes that the custodial parent's reasoning is a little off and that he or she has the same or better opportunities in California, it cannot deny the move. 

Approximately seven years later, the California Supreme Court published a second "move away" decision entitled In Re Marriage of La Musga, which purported to clarify the prior decision.  In La Musga, the California Supreme Court held that if a non‑custodial parent makes a prima facia showing that the move away would be detrimental to the children and to the relationship between the left-behind parent and the children, the trial court must decide the issue after a full evidentiary hearing, and that the court must decide if the move is in the best interest of the children.  The California Supreme Court also stated that the trial court must take into consideration several common-sense factors such as the distance of the move, whether or not the custodial parent would share custody, whether or not the relationship between the children and the left-behind parent would be damaged by the move, etc.

            In my practice as a family law attorney, I have seen the pendulum swing in both directions on this issue.  After the Burgess decision, the trial courts were pretty much rubber stamping requests for move away and it seemed like any opposition to the move was futile.  After the La Musga case was published, however, trial courts and mental health professionals became very vocal in their opposition to move aways and it became significantly harder for a custodial parent to move away with children if the other parent objected.

            Now, in the wake of the three published cases out of San Diego, I believe that parents wishing to move away with children will have a much better chance of doing so.  Since all three decisions essentially ruled the same way, I will review only one of the cases for the purposes of this article, In Re Matter of Mark T. v. Jaime Z.

In Mark T. v. Jaime Z., the father filed to establish paternity in 2007.  On November 10, 2008 the Trial Court made orders for the father to have overnight visitation.  The mother was obviously given primary custody of the child.  The mother then filed an Order to Show Cause requesting the court's permission to move to the State of Minnesota with the minor child.  The mother's reasons for the move, as stated in her declaration, were that she had support from family members in Minnesota, she had no job in San Diego, and that she was forced to borrow money.  She also stated that she believed she would have better job opportunities in Minnesota.

            In February, 2009, the mother and father entered into a Stipulation and Order that they would participate in a child custody evaluation.  Subsequent to their agreement, a child custody evaluator interviewed the parents and eventually made recommendations.  However, while the custody evaluation was underway, the parties entered into a second Stipulation and Order that acknowledged the mother was the primary custodial parent.

            In June 2009, the child custody evaluator released her report.  The child custody evaluator stated that the mother's need for her family support in Minnesota was no substitution for the child's need to be with the father.  The Trial Court followed the recommendations of the evaluator and precluded the mother from moving to Minnesota because the Trial Court believed that the move would have a detrimental effect on the child.

            The mother appealed the decision.  The Court of Appeal reversed and remanded the case back to the Trial Court with specific findings that:

            1.         When faced with a move-away request, the Trial Court must decide custody based on the assumption that the move will take place and determine what custody arrangement is in the child's best interest if the move occurs;

            2.         The Trial Court applied the incorrect legal standard in ruling on the mother's move-away request because it based its order on an assumption that the mother would not move if the Trial Court denied the request;

            3.         The Trial Court's order was impermissibly coercive;

            4.         The child custody evaluator's report failed to address what the proper parenting plan would be if the mother moved to Minnesota and the Trial Court erred by adopting the child custody evaluator's recommendations;

            5.         The father's attorney should not have been allowed to question the mother regarding whether or not she would move without the children; and

            6.         Improper motive for move is only one factor for the Trial Court to consider and it is not an automatic ground for a custody change.

            Consequently, the Court of Appeal held that the Trial Court abused its discretion by failing to apply the proper legal standard for making the move-away orders.

            The lessons that we learn from the three cases from San Diego are very important.  First, we now know that trial courts may not coerce parents into remaining behind by giving them a choice of either staying and having primary custody of the kids or moving away without the children.  Second, we also learn that it is not permissible for a child custody evaluator or an opposing counsel to ask a custodial parent if he or she will in fact move if the children were ordered to remain with the other parent.

            Practically speaking, now a trial court has the tough decision of deciding where the children should live, assuming that the custodial parent has already moved.  In Mark T. v. Jaime Z., the Trial Court should have decided whether the children were better off with the mother in Minnesota or with the father in San Diego.  Obviously, if the parties have already stipulated that the children are better off with the mother on a primary basis, it will be difficult to assume that they would be better with father in the case of a move away.  I believe that these decisions will cause more people to litigate over who should have primary custody because if the primary custodian decides he or she wants to move, it will be pretty difficult to object in most cases. 

Do parents have an obligation to assist with expenses relating to their child's college education? While some parents start saving for their child's tuition as soon as they receive a positive pregnancy test, others believe it's important for their children to work and pay for their education on their own. However, if a child has divorced parents, the court may order college support payments. Parents can also negotiate to have this included as part of their divorce decree.

Child support payments are payments that are made for the living expenses of the child, while college support payments are payments that are made for the post-secondary education expenses of the child. It is possible to be ordered to pay both child support and college support for the same child, although sometimes a judge will allow you to pay child support payments directly to the child instead of your ex-spouse if he is living off campus and has significant monthly expenses that must be paid.

Judges consider several different factors when deciding if college support is appropriate, such as the financial resources of the child's parents, the child's own income and assets, the nature of the child's educational goals, and the standard of living the child would have had if his parents had not divorced. If a parent is ordered to provide college support, the child receiving the support often must meet specific obligations regarding school attendance, the number of credits earned each semester, and the grades received for each class.

If you have tuition remission offered as an employment benefit, this can't be used in place of your court-ordered college support payments. Typically, courts will rule that both parents must benefit from the tuition remission.

Any Pasadena divorce attorney will tell you that college support awards are controversial, since there are no laws requiring parents who remain married to contribute financially to the cost of their child's education. Even if you are not legally ordered to provide college support payments, however, you should consider that your child's eligibility for grants, loans, and other forms of financial aid is dependent upon your income. When completing the Free Application for Federal Student Aid (FAFSA), college students must report parental income and assets regardless of whether or not they are receiving parental assistance with their educational expenses.

                                         
Couples seeking divorce advice in Pasadena frequently have questions regarding the acceptable use of child support payments. While  child support will be legally ordered whenever there are minor children involved in a divorce settlement, many parents do not fully understand the purpose of child support payments.

In a divorce settlement, courts recognize that both parents have a legal responsibility to provide for the financial needs of their children. The purpose of child support payments is to provide the custodial parent with reimbursement for some of the child's living expenses. This includes things such as clothing, educational expenses, food, shelter, and medical costs not covered by insurance. When determining the amount of child support payments, a judge will consider factors such as parental income, the child's standard of living before the divorce, and how much time the child will be spending with each parent. The cost of health insurance and daycare can be considered as well, if one parent will be solely responsible for these expenses.

Studies have repeatedly shown that money is one of the top causes of arguments among married couples. Unfortunately, financial disagreements don't get any easier once a couple divorces. In California, courts do not require parents receiving child support payments to provide the person making the payments with an accounting of how the funds are being used. It is assumed that a parent who is determined fit to have custody will be responsible enough to manage the child support funds in an appropriate manner. For this reason, money received from child support payments does not need to be kept separate from general household funds. It is acceptable for this money to be used to pay for groceries, utilities, or any other regular household expenses that benefit the child.

If you believe that your child support payments are not being used appropriately, you can request a court order to have the payment amount adjusted. However, you will need to provide significant evidence that the child's basic needs are not currently being met. Without concrete evidence that payments are being misused, child support awards will typically only be adjusted after a change in parental income due to job loss, disability, or change in employment.

This article will analyze this recently published appellate decision (In Re Marriage of Cryer ) that should serve as  glaring example as to why individuals should proceed carefully before filing such motions. 

In "In Re Marriage of Cryer," we see the failed attempt of a famous actor, Jon Cryer, to modify child support.  Jon Cryer, known for his leading role on a popular sitcom called "Two And A Half Men," married his wife in the year 2000.  During the same year, the parties gave birth to their minor child.  However, four years later, after Mr. Cryer completed his first season of "Two And A Half Men", the parties separated and filed for divorce.

In 2004, Mr. Cryer entered into a Stipulated Judgment for Dissolution pursuant to which he bought Ms. Cryer a condominium, and agreed to pay her a sum of $10,000.00 per month in child support, based on his rather high income and a 35 percent timeshare with the parties' minor child.

In May 2009, the minor child suffered an injury while in Ms. Cryer's home.  The Department of Children and Family Services subsequently filed a dependency action, and removed the child from Ms. Cryer's care and placed the child with Mr. Cryer.  As a result, Mr. Cryer filed an Order to Show Cause for downward modification of child support based on his increased time share and Ms. Cryer's decreased timeshare with the minor child.  This motion was filed in August 2009, at which time Mr. Cryer admitted that he earned $327,000.00 per month and had liquid assets amounting to $7 million. 

Judge Pellman of the Los Angeles Superior Court, the presiding judge over this matter, denied Mr. Cryer's request in part and granted it in part.  Upon hearing Mr. Cryer's arguments, she ordered that his child support obligation be reduced to $8,000.00 per month, from the original $10,000.00 per month, to reflect his increased time with the child.  However, Judge Pellman declined to reduce his child support obligation to the guideline amount of zero, because she believed that ordering child support based on the guideline formula would be "unjust and inappropriate." 

Judge Pellman also determined that Mr. Cryer was an extraordinarily high-income earner and found that it was in the child's best interest to come home to his mother's house in the manner that he was accustomed to living in Mr. Cryer's house.  The evidence showed that Ms. Cryer was financially dependent on Mr. Cryer, and that she would not be able to maintain the house if support was drastically reduced.  Based on her extensive prior experience as a judge in Juvenile Court, Judge Pellman is very familiar with the process that occurs after the Department of Child and Family Services files a petition in Juvenile Court.  Judge Pellman noted that the dependency action was in its early stages and that the Juvenile Court could modify custody at any time and return the child to Ms. Cryer as the child's primary caretaker.  Thus, it would not be in the child's best interest to grant Mr. Cryer's request for guideline support.

Mr. Cryer believed that Judge Pellman erred in ruling on his request for modification of child support and appealed her decision.  On appeal, however, Judge Pellman's rulings were affirmed.  The Court of Appeal held that Judge Pellman did not err by reducing child support to $8,000.00 per month because of the potential for a quick change in custody and visitation, the special circumstances related to the great disparity in the parties' incomes, and the trial court's findings that it was in the child's best interest that guideline child support not be ordered.

Unfortunately for Mr. Cryer, Judge Pellman also ordered him to pay all of Ms. Cryer's attorney's fees related to the multiple hearings on this matter, which amounted to more than $40,000.00.  Thus, Mr. Cryer not only lost in his attempt to lower child support to the guideline amount, but he also got stuck paying the bill for his failed efforts. 

In light of this decision, I think one can conclude that modifying child support is not as easy as it looks.  If you don't believe me, ask Jon Cryer.

Written by: Donald P. Schweitzer

by Brette McWhorter Sember, JD

There are several ways child support can be paid, and each method has advantages and disadvantages. One parent can directly pay the other by cash, check, or money order. This person-to-person method is simple and does not require waiting for any processing time by the state. The receiving parent must keep records and track the payments. Enforcement is more difficult and is not as automatic. If you agree to this type of payment, it is wise to include a provision that if payment is missed for a certain number of months, wage garnishment (see below) will be set up automatically.

Wage garnishment is another method of payment. Child support is deducted from the paying spouse's paycheck and sent either to the receiving spouse or to the state Child Support Enforcement Agency. Garnishment requires an extra step of formally notifying the paying parent's employer and setting a court date for the garnishment order. The parent receiving the support must handle all of the paperwork. The employer is legally obligated to withhold the support from the paycheck. The advantage of this method is that payment is made automatically. There are several disadvantages. First of all, the paying parent is likely to find it embarrassing, which might escalate hostilities between you. Second, there are limits to how much can be garnished from wages, so you may not be able to get the entire support amount this way. If your spouse is self-employed, you cannot garnish the wages. You also cannot prevent the paying spouse from quitting his job, which then puts you in the position of having to do more legwork to find the new employer and garnish again.

Wage garnishment is controlled by the Consumer Credit Protection Act, a federal law that limits the percent of wages that can be garnished. The garnishment law allows up to 50% of a worker's disposable earnings to be garnished for child support if the worker is supporting another spouse or child, or up to 60% if the worker is not. An additional five percent may be garnished for support payments more than 12 weeks in arrears.

The third option is to have your state child-enforcement agency collect all child support. You can agree to send payment through this organization from the beginning or at any point while child support is being paid. This is also the agency that will assist you in collecting unpaid child support. The advantage of this method is that the receiving parent doesn't have to do any legwork or keep any records and the parents don't need to have any contact with each other about child support (which can be helpful if you're prone to disagreements about this). Payments are automatically increased with the cost of living. The disadvantage is that the agency may take a small percentage of the payment as an administrative fee. The paying spouse may not appreciate this method, as there is absolutely no slack given for late or missed payments. Another disadvantage is that you're dealing with a government agency, so there is likely to be red tape and backlogs.