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
About Us
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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.Online Printable Order Form JUST: Point - Click - Print!
Filing Fees:Online Printable Order
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Print! About The
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.
IN SHORT - We Help Our Customers Solve
Their Own Legal
Problems Without The Expense of Hiring A 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:
National Divorce & Bankruptcy Center
5303 Montreal
Wichita Falls, TX 76310
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