Modifying Child Support, Custody, & Visitation in
California
Modifying Child Support, Custody, & Visitation in
California 
Why Modify?
Nothing is forever - Thank Goodness! What seemed
to make perfect sense at the time of your divorce or support & custody
orders may be totally impractical or unworkable now.
Things Change! What ever the reason, child support
(and often custody) must almost certainly be 'modified' (changed) at some time
before the child is grown. The parent paying child support may have a
significantly higher (or lower) income now than they did when the child support
was calculated. The needs of the children may have (and usually do) increase as
they grow older. There are additional expenses for sports and other
extracurricular activities. Clothes just plain cost more for older children that
are sure they will no doubt 'die' if they don't have some designer's name on the
back side of their blue jeans. Inflation alone may reduce the 'real buying
power' of the child support amount based on the income of the parent as
calculated several years ago at the time of the order.
One of the most common reasons for modifying child support payments and
custody is simply because the child now lives with the
parent who was originally ordered to pay child support. Unless the
original order for child support is modified (changed) the parent originally
ordered to pay the support will still be liable for the ordered payments, and
the monthly child support will still be withheld from the parent's pay checks,
even though the child now lives with that parent.
You can't simply pick up the phone and call the child
support collection agency and tell them to stop withholding child support from
your pay check because the child now lives with you. Until a modification
order is filed, the parent legally responsible for the payment of support is
required to keep on making regular child support payments. Even if the parent
simply stops sending the child support payments, the balance continues to add up
- with interest - as an arrearage. Sooner or later, the arrearage must be paid
(with the interest) since child support cannot be changed (raised or lowered)
retroactively. Employers are under a court order to withhold child support from
earnings until they receive a court order otherwise.
California also enacted new legislation in 1992 and again in 1994 drastically
changing the way child support is calculated and having a profound impact on the
support of California's children. Courts now must consider the time each parent
spends with the child in determining child support. This is a significant
departure from the earlier method that presumed the parent paying child support
spent no time with their child.
Additionally, the income of a 'new' spouse is not factored into the formula
for determining child support except in very rare situations.
The California legislature developed a 'formula' for calculating child
support designed to make child support the same across the state for parents and
children in similar situations. This mandate, takes much of the disparity that
occurred because of judicial discretion out of the system. There is now only 1
mandated formula for determining child support across California.
Delaying making a change child support to reflect current
circumstances can have a profound impact on you and your children whether you
are the payor (Obligor) or the payee (Obligee).
Real World Examples: Four years
ago, David was ordered to pay Debbie child support for their 2 children of $400
per month. David has now completed his degree and has a much better paying job
that he had 4 years ago. Using the state guidelines to calculate child support
for 2 children at 25% of David's net disposable income, he would now be required
to pay $600 per month. Since child support cannot be raised or lowered
retroactively, Debbie and the children are loosing $200 per month each and every
month that she does not have the child support order modified. That's $200 per
month that the children are entitled to and will never receive.
David has been paying $600 per month to Debbie as child support for their 2
children. Last month David and Debbie decided that it would be best for the
oldest child to live with David and go to high school. They also agreed that
since each parent now has primary responsibility for 1 child, David should not
pay child support anymore. David simply stops sending in the $600 child support
payments to the local collection registry. David is still obligated to pay the
$600 per month in child support until a court order is issued to the contrary.
Since he is not making the payments, an arrearage is accumulating at 10%
interest that he will eventually have to pay since child support cannot be
modified retroactively.
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The very premise of California child support is set out in the California
Family Code §4053(a)-(g). To understand how child support is determined, you
need to understand the principles the legislature mandated as the basis for
calculating the correct child support amount. Judges are now required to base
their child support rulings on the principles mandated in the code.
A parent's first and principal obligation is to support his or her minor
children according to the parents's circumstances and station in life.
Principle #1 virtually eliminates the expenses of the parent paying support
from the formula used to calculate child support. The numbers 'plugged' into the
basic formula are simply,
Both parents are mutually responsible for the support of their children.
Each parent should pay for the support of the children according to his or
her ability.
The key word here is "ability" as in "could earn", rather than "currently
earning".
Children should share in the standard of living of both parents. Child
support may therefore appropriately improve the standard of living of the
custodial household to improve the lives of the children.
This principle makes a profound statement: child support may be used to raise
the living standard of the custodial parent and therefore the child.
Child support orders in cases in which both parents have high levels of
responsibility for the children should reflect the increased costs of raising
children in two homes and should minimize significant disparities in the
children's living standards in the two homes.
This principle is based on the fundamental premise that it is not 'good' for
children to go back and forth between 2 homes if one home is clearly 'well off'
and the other home is at or below the poverty level. Just as in Principle 4,
child support may be used to raise the living standard of a parent and therefore
raise the living standard of the child.
The Process of Modifying A Court's Prior
Order
The basis of child support modification is quite simply that - You can always
ask a court to increase or decrease a previous court order for child support if
circumstances have significantly changed since the time the last order was
issued. Effective 1/1/94, judges can no longer factor in a 'new' spouse's income
into the formula for calculating child support unless it is an "extraordinary
case and not doing so would cause "extreme and severe hardship on the child"
Because of the sweeping changes in the California child support law in 1992
and again in 1994, parents can now request a modification in support based
solely on the fact that the last support order was prior and contrary to the
'new' changes. For example, if the order was previously calculated factoring in
the 'new' spouses income, which is not permitted except in extreme cases, the
fact that the formula has changed is a significant change.
There are only 3 basic procedural steps to
modifying a court's prior order; Any party affected by the child support order may file the motion seeking to
modify (change) a court's prior order for child support or change of conservator
(custody and visitation).
Each party whose rights, duties, powers or privileges may be affected by the
requested modification must be notified that a motion for modification has been
filed. Usually, only the 'other' parent must be notified.
The Party Requesting (filing the motion) a
change is required to show that there has been "a Substantial and Material Change" in the circumstances which
Makes the Requested Modification Necessary.
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Substantial and Material Change:
The formula created by the legislature can seem overwhelming. The following
general information is provided to help you understand the factors that 'plug
in' to the formula in calculating child support, and to allow you to make a
'guesstimate' as the amount of child support in your situation.
We will run the numbers for you and give you a print out of the resulting
calculations and child support amount as part of our document service.
Child support is calculated based on the income of both parents. Both parents
are required to provide the court with the necessary information about their
finances on the day of the hearing on the modification of child support. Each
parent is required to complete and bring a form called, "Income and Expense
Declaration". This is the same form that you probably completed when the
original order was made. However, that doesn't help you determine the support
prior to going to the hearing. There is a procedure available for requesting the
information from the other parent prior to the hearing so that you can
accurately calculate the child support amount. As part of our document service,
we provide the completed forms to request the information from the other parent,
and the procedural information to make the request for financial disclosure.
To accurately calculate the amount of support you have to know the financial
information on the other parent to run the numbers. If the other parent will
simply provide the information your task is easier. If the other parent is less
than co-operative in providing their financial information, there is a procedure
for requesting the financial information of the 'other' parent. (See the
procedures section below).
The following child support worksheet will give you a general guide to
calculating the correct amount of child support. The final numbers for making an
exact calculation will come from the Income and Expense Declaration we complete
as a part of our document service.
Now for the really confusing part: Step 2: Add the net income of both parents together $_____________
Multiply the percentage of time the high income parent
has the children times (X) the total net income of both parents =
$_________________
Step 3: Subtract the answer in step 2 above from the high income parent's net
income =$________
Step 4: Add the number 1.0 to the percentage of time the high income parent
has the child.=______
Step 5: Multiply the answer in Step 4 above by .25 = ______________
Step 6: Multiply the answer in step 3 by the answer in step 5 =
________________
You now have the basic child support guideline amount.
Note: If there is more than one child, the % of time spent with the
child(ren) should be calculated by using the average time each parent spends
with all the children. Add up the time spent with each child and then divide by
the number of children.) Where And How The Suit To Modify Is Filed:
Generally, the modification must be brought in the court with continuing
jurisdiction over the parties and the subject matter - The court where the
original child support order was issued (it may have been part of the divorce
decree).
Most busy people simply file their paperwork by mailing it to the clerk for
processing, although you may personally hand deliver it to the clerk if you
prefer.
A Modification, like any other court proceeding, requires a filing fee. You
pay the same fees that lawyers pay. The filing fee for modification of a prior
order is very inexpensive, but varies from county to county. The average cost is
less than $20.00. You can call the clerk and ask for the exact fee amount in the
county where you will be filing.
Notice
All parties to be affected by the requested modification of the child support
order are entitled to notice - by "service" (delivery) of a citation and a
command to appear on the date of the hearing to determine whether or not the
requested modification should be granted. If the modification is by agreement,
the 'other' parent can simply waive formal service and consent to the requested
modification.
Hearing
After all the parties have been "notified" (received service), and been given
an opportunity to "answer" (respond), there is a hearing to determine whether to
grant the modification. At the hearing, both "sides" will be given a chance to
produce their financial information, and support their claim that the
modification either should or should not be granted based on their financial
information for example: he/she is now making $4 an hour more than when
the divorce was granted and the child support orders issued, or, the child is
now living with the parent ordered to pay child support and therefore child
support should be stopped or the other parent should pay child support.
Change in Custody:
Most often a change of custody and change is child support to reflect
the change is done when the child is now living with the 'other parent' the
parent that is technically the non-custodial parent with visitation, and usually
is paying child support. When the child changes residency and lives with the non
custodial parent it is necessary to have the designation of custody changed, and
child support modified to reflect the change.
When the child changes residency, and lives with the parent, who is ordered
to pay child support, the child support obligation continues until the Court's
order is changed. The parent is obligated to pay child support, even when the
child has moved in with that parent, until the child support order is changed by
the court.
Generally, when the child has changed residence from one parent to the other,
it is with the agreement of both parents. For that reason, the parents are
usually both in agreement about changing the designation of custody and ending
the child support obligation of that parent.
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Modifying Child Support in
California
Why Modify?
Real World
ExamplesPrinciples of Child Support
Child Support Formula
Changes in Circumstances
The Process of Modification
Fees
Paperwork
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Examples:
Child Support Factors
Mother
Father
Number of minor children from the relationship
*
*
% of time parent has primary responsibility for the
child
%
%
Total Gross Income
$
$
Deductions From Gross Income Above
Child care costs required for employment, education or
training
$
$
Uninsured health care costs for child
$
$
Child or spousal support currently paid to "others":
children or ex-spouse not of this relationship
$
$
Health insurance premiums for you and any children you
support
$
$
Property taxes paid on residence
$
$
Mortgage interest paid on residence
$
$
Deductions from gross income for 'mandatory' union dues
$
$
Deductions for mandatory retirement contributions
$
$
Total of all Deductions Above
$
$
Total Net Income (subtract
deductions from income)
$
$
The rest of the calculations are based
on a "high income" parent and a "low income" parent.
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National Divorce & Bankruptcy
Center
The National Divorce & Bankruptcy Center is a division of Pro Se
Publications, Self-Help Center, which began in May of 1994 and provides the
public with easy and inexpensive access to the courts without the expense of
hiring a lawyer. We help you better inform yourself about laws and legal
procedures so that you can make your own informed decisions - about the legal
actions that affect your life. We provide services at low cost because we are
not lawyers and do not give legal advice. Instead, our service is limited to
providing you with self-help information and providing quality legal document
preparation.
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Lawyer.
Document Preparation; The
Paperwork
Paperwork and Procedural information is the heart of our service. We use the
information you provide on the information/order form, and complete all of the
paperwork necessary to process a modification without hiring a lawyer, including
running the numbers to calculate the amount of child support. Once you have made
the decision to modify, the next step is to complete the Modification
information form, indicating your decisions about the modifications you want
included in your paperwork. Simply return your completed informational form, to
our office with a copy of the last order entered (the one you want modified) and
the $200 document processing fee. Your completed paperwork, will be return
mailed to you - ready to be signed and filed within 3 business days (most within
48 hours), along with the necessary procedural information to 'guide' you
through the process of modifying your current court order for child support,
custody, and or visitation.
In order to ensure prompt processing, payment is limited to Money Order or Bank
Cashier's Check made payable to:
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Center
3037 F Cunningham Dr
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