Santa Rosa Family Lawyer Blog

When a married couple with children separates or divorces, or where only one of an unmarried couple has custody, the non-custodial parent may be responsible for paying child support.

Child support is typically based upon the non-custodial parent's income and the number of dependent children. California courts use child support guidelines - a matrix allowing the court to apply the parents' total income and match it with the number of children. The matrix then provides the amount of money the family should provide for their children. Then the court can determine what percentage each parent contributes to the monthly income. Under California law, in unique circumstances, the court may deviate from the guidelines. However, such deviations are rare, and the court must then state the reasons for doing so. It is the legislative intent in California that a parent's first and principal obligation is to support his or her minor children.

In the past, parents were left on their own to work through child support issues. However, state child support enforcement agencies are now taking a significant and aggressive position with regard to seeking payments from non-custodial parents. Even where the non-custodial parent has a reduced income, whether due to a job loss or salary reduction, they must still continue to pay child support. They may seek to have the child support obligation reduced, but they cannot decide on their own to simply reduce the amount they pay in child support.

Remedies that may be used to collect child support include:

Earnings Withholding Order for Support (Garnishment): An order issued on writ of execution, directing an obligor's employer to withhold and pay a percentage of obligor's earnings to the levying officer to satisfy a judgment for support.

Earnings Assignment Order: A court order directing an obligor's employer to withhold and pay a percentage of obligor's earnings to the obligee under a support order. Earnings assignment orders are automatic for support orders issued or modified on or after July 1, 1990, unless the assignment order is stayed or quashed.

Security Deposit Before Delinquency: A court order directing an obligor to establish a child support trust account in a state or federally chartered financial institution, into which obligor must deposit of up to one year's child support. Amounts may be deducted from the account and paid to the obligee if the obligor is 10 or more days late in making support payments.

Security Deposit After Delinquency: A court order directing an obligor to deposit cash or other assets with a court-designated deposit-holder to secure future child support payments. The assets may be used or sold to pay child support arrearages if payments continue in arrears.

Government Benefits Intercept: Permits a support obligee in cases in which the support obligation is not being enforced by a local child support agency to intercept certain payments by state agencies and other public agencies to the obligor to enforce a support obligation owing to the obligee, including tax returns.

Monetary Penalty on Delinquent Support Payments: Allows support obligee to file and serve a notice of delinquency on the obligor whenever payments under a support order are more than 30 days in arrears. Any payments that remain unpaid for more than 30 days after such a notice has been filed incur a penalty of 6 percent per month, up to a maximum of 72 percent of the unpaid balance.

Loss of Driver License: In cases where the local child support agency is enforcing the support obligation, your driver license can be suspended, revoked, not issued, or not renewed if you are delinquent in child support payments.

Prenuptial agreements, or premarital agreements as they may also be called, are contracts entered into before a marriage to establish the property rights of each spouse in the event of a divorce. A prenuptial agreement is most common where one or both spouses are wealthy, but they can also be used to protect a family business or to serve other important functions. For example, prenuptial agreements can protect a party from assuming the debts of the other party, determine how property will be passed upon death, clarify financial rights and responsibilities during a marriage or avoid long, costly disputes during divorce proceedings.

Without a prenuptial agreement, California law determines how property is divided during marriage and after a marriage ends. Generally, a spouse is entitled to share and receive ownership of property acquired during the marriage, receive some of your property upon death, share in any debts acquired during the marriage, and share in the responsibilities in managing property acquired during the marriage.

The decision to enter into a prenuptial agreement is one that every couple should make individually, as every situation is unique. Many couples fear that discussing a prenuptial agreement, or the issues that the prenuptial agreement will cover, may cause problems in the relationship. However, often the opposite is true. One of the main reasons couples divorce is finances, and a prenuptial agreement will allow a couple to discuss those issues prior to marrying.

There are some downsides to a prenuptial agreement. Depending on your relationship, it may take some of the romance and excitement out of the wedding and its preparation. Sometimes, the beginning of a marriage is not the appropriate time to discuss prenuptial agreement issues because you and your future spouse may not know enough about your life together to answer the questions required. If that is the case, you can always wait until you are married, when you know more about how you and your spouse intend to manage your household and its finances before discussing what is referred to as a postnuptial agreement.

Like many contracts, a prenuptial agreement must be in writing and signed by both parties. In addition, if a spouse is pressured into signing the agreement, or if they were not provided enough time to read and consider the agreement, a court may find the agreement invalid.

Prenuptial agreements cannot address everything; courts will invalidate certain portions if they do not comply with current California law. A prenuptial agreement may not contain any decisions regarding child support or child custody, because the court has final say in determining proper child support and the child's best interests. In addition, a spouse cannot waive his or her right to alimony, which is one of the most frequent provisions struck down by courts. The prenuptial agreement cannot include personal preferences, such as who does each chore, where holidays are spent, or what school the children will attend, because a prenuptial agreement is primarily intended to address financial issues, and judges do not like to interfere in private domestic matters.

In any case where future spouses are considering a prenuptial agreement, each person should acquire their own legal counsel, to ensure that the agreement is fair to both parties and to reduce the chances of any impropriety.

In parentage cases, also called paternity cases, the court issues orders that say who the child's legal parents are. If you are targeted by a paternity suit, you may be wondering what your options are. If you are served with a Petition to Establish Parental Relationship by the other parent, you have 30 days to respond. It is very important to respond, because after 30 days, the court may grant the petition and legally find that you are the child's father without a paternity test.

If paternity is established, you will expected to provide monetary child support until the child is emancipated. In California, emancipation occurs when the child is 18 and graduates high school, but could continue until the child is 19, if they are unmarried and attending high school full-time.

If parents are married when a child is born, there is usually no question of parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is assumed. However, if there is a question as to paternity, the assumption can be overturned.

Paternity can often be determined by highly accurate tests conducted on blood or tissue samples from the alleged father, mother, and child. Typically, such DNA tests are between 90% and 99% accurate. Originally in the 1950s, paternity was determined by comparing blood types of the tested parties. However, blood typing is not a completely accurate method of determining paternity. In the 1970s, a new test was developed using white blood cell antigens, which is able to exclude about 95% of falsely accused fathers.

With DNA testing, the genetic characteristics of the child are compared to those of the mother, and those characteristics that cannot be found in the mother must have been inherited from the father. Each individual's DNA is unique, except in the case of identical multiples, like twins. DNA testing is the most accurate form of paternity testing. If the DNA patterns between the child and alleged father do not match on two or more DNA probes, then the alleged father can be ruled out. Generally, DNA testing is done through a blood sample or using a swab that was rubbed against the inside of the subject's cheek. Children can be tested at any age, and the tests can even be run on an umbilical cord blood specimen at birth.

In California, if you do not wish to accept the results of the paternity test, you have the right to ask for another. However, you may have to pay for the second paternity test. Even with the proven accuracy of DNA testing, it is possible, although unlikely, that the results are inaccurate. DNA testing can be challenged for: tainted lab results, fraudulent lab results, proof of infertility or sterility, or proof that the tests were tampered with.

See related blog posts:
The Importance of Establishing Paternity
Methods of Determining Paternity

Children can be significantly affected by a divorce. Many divorcing parents today are employing written parenting plans to assist themselves and their children with the transition. A parenting plan is a written document that attempts to address many of the potential areas of contention between divorcing parents.

The major benefit with parenting plans is the consistency they offer. Whenever an issue arises between the parents, they can review the parenting plan to determine the proper course of action.

Just as every child, and every family, is unique, so should each parenting plan be unique. Your parenting plan should be tailored to your child's needs. Those needs will change depending on your child's age and personality. As your child grows and changes, the parenting plan should be updated accordingly. The plan should also take into account each parent's schedule and parenting strengths.

Of course, in order to create a parenting plan, the parents must discuss and agree upon many different and diverse issues. Some of those issues will be difficult to agree on and many will be emotionally charged.

Child custody and child visitation should always be discussed at length in a parenting plan. There are many, many different kinds of child custody arrangements and just as many visitation scenarios. Some families prefer to change child custody over short periods of time, while others prefer for the children to reside with each parent for longer periods at a time.

One contentious issue between divorcing parents is transporting the children. When divorcing parents live close to one another, then parents must discuss whether the custodial parent will drop off the child or whether the not custodial parent will pick them up. The situation is more difficult when parents live farther away. In those situations, the child may need to take a train or plane in order to reach the other parent's home. Until the child is older, they will likely need someone to accompany them, and the parenting plan should specify which parent that will be.

Parenting plans should also discuss the basic care of the child. Such basic care includes food, sleep, and activities. Recently, more and more families are adopting organic, vegetarian, or vegan diets. Parents may wish to include these dietary choices in a parenting plan, to ensure continuity for their child.

Parenting plans can cover any issue that parents wish to address. For example, parents may want to limit the amount or type of visitors that a custodial parent has while watching the child. Parents may also address the usage of cell phones, computers, and the Internet. The plan can also delve into the child's involvement in sports and other extra-curricular activities. Such activities can be particularly difficult, because some parents may need to discuss how they will attend the child's events. Finally, one particularly contentious issue that must be addressed is religion. Even when both parents are religiously compatible, the parenting plan should address when and where religious activities will occur, and how the child may participate.

The popular misconception of what does child support cover is that child support is intended only to cover only a child's bare necessities, like food and clothing. The truth, however, is that child support covers much more. Child support includes school fees, entertainment, medical expenses, and extracurricular activities, among other things. In California, courts do not require parents to prove the child support payments they receive are going toward specific activities. The exception to this rule occurs where there are concerns that the child's basic needs, like food, shelter, and clothing, are not being met.

Basic Necessities
It seems fairly obvious that child support may be used to pay for food, shelter, and clothing. Purchasing groceries and clothing, and even paying the mortgage, rent, or utilities is acceptable.

Uninsured Medical Expenses
Child support may be used to pay for uninsured medical expenses and any out-of-pocket medical costs exceeding the cost of basic health insurance. Such costs include co-pays, deductibles, and surgery expenses. In California, parents must pay for half of all uninsured medical costs.

Education
Even public education is not completely free. Child support may be used toward the cost of school uniforms, textbooks, lunch money, and even private tutors, if necessary. California divorced parents are required to pay for half of all education-related expenses.

Childcare
If one or both parents work, and cannot stay home with their child, child support is appropriate for covering childcare expenses, including daycare, babysitters, and nannies. Of course, during school breaks in the summer months or on holidays, child support may also be used to cover any childcare needs.

Transportation
Child support may pay for basic transportation and travel costs, because children need to be transported safely and securely. Transportation costs may include car maintenance, gas, registration, and insurance. Child support may also be used for travel costs, particularly when traveling to visit the non-custodial parent.

Entertainment
Child support may be used for age-appropriate entertainment activities, as agreed upon by both parents. Entertainment can range from computers, television, and the internet to the movie theater, amusement parks, camping trips and possibly other activities as questioned in our recent family law attorney blog post..

It is important to remember that the purpose of paying child support is ensuring that the child's standard of living does not decrease simply because his or her parents divorced. At any time, either parent may request a review of the child support order by the local child support agency. The request must be in writing, stating the reasons for changing the support order. Generally, modification is justified when getting a new job, losing a job, or if custody/visitation changes. However, quitting a job is not justification for a review.

If the local child support agency decides the requirements for review are not met, the parent requesting the review may ask the court to review the order. In the event that both parents can agree on the amount of support ahead of time, the parents can sign a stipulation that must be filed with the court.

Certainly, in these difficult economic times, payment of child support is a difficult obligation. In the event that a parent cannot make the full child support payment, they should immediately contact their local child support agency to avoid or minimize any legal actions as a result.

See related blog posts:
The Importance of Establishing Paternity
Divorce in Six Months or Six Years

The father's position: The father in our divorce story does not believe that his daughter should be in expensive pageants, and does not want to pay out in child support for them. He believes that the cost of thousands of dollars in costumes, make-up, hair, travel and lodging is excessive and could be used better toward education. He argues he is a middle income earner, and cannot afford costumes that can be upward of $3,000. The father claims that there's too much pressure on his daughter that is causing unrealistic "body image issues". He also feels that practicing 7 - 10 hours per week for a pageant is exhausting for daughter. He's opposed to mother's placing their daughter on low calorie diets and not letting her be a "kid". He feels that mother's control, daughter's long hours, and pageant demands are abusive to his daughter and her right to a carefree childhood. He also believes that he shouldn't have to support such a frivolous past-time as pageantry.

Further to support the father's position, California has no labor laws regarding pageants. Pageants are exempt from federal labor laws under the Fair Labor Standards Act of 1938. Child contestants of pageants are not considered to be "working" as they sometimes spend 10 hour days not "working" at a pageant with their parent.

The mother's position: Mother feels that pageant participation has given their daughter poise, grace and self-esteem. She states that their daughter enjoys being in pageants and that there's a great future for her daughter in modeling, or perhaps an acting career. This mother considers pageantry the same as participating in sports and argues that there are costs associated with sports, including long travel, hours of practice and sometimes expensive coaching. She believes that pageantry is a form of education that's valuable because she has seen her daughter gain confidence in front of an audience. The mother believes that the dad should continue to financially support their daughter in her pageantry goals. The mother has no concern over child labor laws as she feels that participation in sports demands the same focus, drive and work ethic as pageantry.

To add to this, what can drive parents even further apart is that vague possibility that, with enough money, time, and enough hard work, there is always the possibility that their child will become a celebrity or get a full ride scholarship. It was plain and simple basketball that made Michael Jordan who he is today and it is TLC pageantry that created the overnight Honey Boo Boo sensation. This little girl has more "sass", charisma, and charm than the entire state of Georgia. Honey Boo Boo has gone viral. Her parents would argue that the costs and time they spent was well worth it. And when you watch her and her very unapologetic red-neck family, you find the show is so unique and refreshing that you can't wait for the next episode. This must be the only family in America that actually eats "road kill" and is proud of it. A pageant mother's dream comes true.

Regarding California law, in child support battles, whether it be costs associated with pageantry, sports, private school vs. public, music lessons, or gymnastics, the lines are drawn and parents often differ strongly and emotionally in what they feel is necessary for the goodwill of a child. Child support issues require careful consideration and a family law attorney with compassion and good mediation skills to strike a balance between the desires of the father and mother, who often cannot reach an agreement on their own. With good legal advice, compromises can be made on each side, which is always a fine balancing act in an effort to maintain peace during and following a divorce for the sake of the children.

In the event that unmarried parents separate, both parties are faced with problematic legal issues. These issues hinge upon whether the paternity has been established. Paternity refers to the legal system recognizing a person as a child's biological parent. As our experienced Santa Rosa family law attorneys know, the male figure in the relationship is not presumed to be the father if the couple is unwed and a child is born from the union.

Under California law, once paternity is established, parents assume the full rights and responsibilities involving their children. As discussed in a previous post, unmarried parents can establish paternity through the execution of a Voluntary Declaration of Paternity, or filing a Paternity Case with the court. If paternity is not established, each parent faces serious legal issues. The mother has no rights to recover child support from the father, and the father cannot seek custody or visitation rights with his child.

Not having the right to child support is a problem especially for unwed mothers, particularly those with low-paying jobs. In many cases a father may have begun paying child support. However, for a variety of reasons--perhaps because the relationship went the south--the father may stop paying. In those situations, paternity still must be shown to get a court order forcing payment of the support.

Although they cannot seek child support from the father without proving paternity, unwed mothers have other options for financial assistance. One such option is seeking financial assistance from the county. When the county disburses financial aid to the unwed mother, this does not relieve the father from providing financial support. The county is required to seek welfare reimbursement from the father by filing a lawsuit. To obtain reimbursement, the county must first acquire a court finding of paternity, establishing that the father is the biological parent.

Unmarried fathers may also face issues regarding their children upon separation from the mother. One of the major issues that unmarried fathers face is in regards to child custody and visitation rights. Oftentimes, unmarried couples agree upon a child visitation schedule without involving the court. In the event that the mother establishes that the schedule is no longer working, the father has no enforceable rights to visit the child unless he has a court order. Obtaining a court order will protect the father's custody and/or visitation rights with the child.

As illustrated, establishing paternity is extremely important to enforcing certain rights for both the mother and father. Without the declaration that the father is in fact the biological parent of the child, both parents are in a position to lose certain rights that are presumed when paternity has been established. Due to the serious financial and emotional harm, it is vital for unmarried parents contemplating separation to seek legal advice from our Santa Rosa family law attorneys.

See Related Blog Posts:
California Paternity Law Attorney
What Rights Do You Have if You are Not Married and Your Relationship Ends?