Orange County Child Support Attorney
Orange County Child Support Background
In Orange County, there are two child support courts: the Orange County Family Law Court as well as the Family Support Division. Orange County Dept. of Child Support Services (OC DCSS) establishes and enforces child support orders through the Family Support Division.
Child support may be payable by one parent to another if a paternity judgment is established naming both parents as the legal parents of a child or if a child is adopted. Because there is a presumption of parentage in a divorce action, parents who have a child during marriage are presumed to the biological parents of the child. (See Family Code 7611).
In a paternity action, the alleged father has a right to a paternity test. A paternity test is a genetic test where a lab swabs the inside of the child’s mouth as well as the alleged parent and the genetic markers match or exclude the alleged parent. For more about paternity cases, click here.
The Court has jurisdiction to enter child support orders for a child until the earlier of a child turning age of 18 and completing high school or a child who is 19 years old and unmarried (Family Code 3901).
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How Is Guideline Child Support Calculated In Orange County:
Guideline child support is set by a computer program which takes into account the factors set forth in Family Code 4055. In Orange County, the Family Court’s use a computer program known as “X – spouse” and the family support division cases use the State of California online calculator.
There is a rebuttable presumption that the guideline child support figure is correct (Family code 4057). Generally, a court will not deviate up or down from the guideline amount unless the court makes certain findings as set forth in section Family Code § 4057(b).
Child support is determined on each parties’ respective gross income, any applicable deductions, and the amount of time each parent spends with the child.
Family Code 4058 defines “gross income” as all income including commissions, salary, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment benefits, disability insurance benefits, Social Security benefits and spousal support received from a person who is not a party to the proceeding.
Determining income for purposes of setting child support can be very complicated because there are many rules concerning different types of income of any parent. For example, bonus income is treated differently than salary. If your case involves bonus income (Smith v. Ostler), income derived from stocks (Marriage of Pearlstein) or stock options (Marriage of Cheriton & Marriage of Kerr), or either parent is self-employed (Marriage of Asfaw), you should consult with a child support attorney such as the experts at Wilkinson and Finkbeiner, LLP.
The Court also has the ability to order a parent make job contacts if they are unemployed. Further, if the Court determines that a parents has the ability and opportunity to earn income, then the Court can impute (i.e. assign an income amount even if it is not actually being earned) income to a parent for purposes of calculating child support.
After determining gross income, Family Code §4059 governs certain deductions that ultimately, the Court will find as a parent’s “net disposable income.” Examples of applicable deductions in any child support case includes state and federal taxes, the tax filing status of the parties and corresponding number of dependents (i.e. Single, Married Filing Joint or Separate, Head of Household), the state tax rate, mandatory union dues and mandatory retirement benefits, deductions for health insurance for the parent and for any children, any child or spousal support actually being paid by the parent pursuant to a court order in another case, job-related expenses and possibly a hardship deduction, which is discussed below.
Effective Date of Child Support:
In either dissolution of marriage action or a paternity action, the Family Court has the ability to set child support effective upon the date of the initial filing of a case (Family Code § 4009).
A child support order may be modified at any time when there is a change in circumstances (Family Code § 3651). An order modifying a child support order may be made retroactive to the date of filing the notice of motion (Family Code 3653). In practice, this means that if a motion is filed to modify child support in June of a given year, then the new child support would be modified effective the following month starting July 1 of that year. Finally, in the event that a child support order is modified based on the unemployment of either parent, then the child for order will be made retroactive to the date of service of the motion to modify support (Family Code 3653).
Impact of Child Custody & Visitation Upon Guideline Child Support:
Under the guideline formula, the Court considers the amount of time each parent spends with a child. Generally, the laws are written such that the parent who has been granted full child custody, or is caring for a child more than another parent is expending more money for the support of that child. Thus, in a situation where each parent earns the exact same income, but one parent has more timeshare with the child, then the parent with less time caring for the child would be paying child support even though the parties have the same income.
What if one parent is self-employed?
If a party to a divorce or paternity action involving children is self-employed, a myriad of issues arise. Most importantly, the self-employed party’s income becomes a critical part of the discussion of how much child support should be paid. Generally speaking, the income that a self-employed person shows on his or her taxes is not the figure that the court should and will use to determine income available for support. There are various tax deductions that are available to owners of businesses that are “added back” to income for the Family Court to base spousal support and child support. For example, depreciation expenses taken by a business owner on a tax return will be “added back” to the business owner’s income for calculating support.
More importantly, business owners typically control their own books, accounting records, bank accounts, and all other financial information. Those records can be manipulated. If you are going through a divorce or paternity case where support is at issue, whether you are a business owner or the party receiving support, make sure to have a qualified family law attorney assist you. It is important for the business owner to have an attorney to avoid a situation where the court believes you earn more money than you actually do, and it is important for the party receiving support to have an attorney to ensure that the proper income factors are assessed to the business owner.
For more information and access to our guide on self-employed parties, child support and spousal support, click here.
What is a Child Support Add-On?
A child support add-on are costs for a minor child that are not included in the base guideline child support amount. These are court-ordered “additional” child support amounts that must be paid by one or both parties. Some are mandatory, and some are up to your Family Court judge to order or not.
Mandatory Child Support Add-Ons
Mandatory child support add-ons are those costs that a court MUST order as additional child support. Typical examples of these are:
- Child care costs: Costs that are necessary for the care of a minor child(ren) due to a parent’s employment or necessary education and/or training in the pursuit of employment skills
- Uninsured health costs: Healthcare costs that are necessary for a minor child(ren) but not covered by the healthcare provider.
If any of these costs are placed upon one parent, the court can order a reimbursement for some of the amount paid by the other parent. In fact, many family law attorneys will argue that child support add ons, even if they are not specifically ordered by the family court when crafting a child support order, are mandatory by law and still payable.
Discretionary Child Support Add-Ons
In addition to guideline child support and the mandatory child support add-ons above, thereare two additional categories which are known as discretionary child support add-ons. The court has discretion as to whether these add-ons will be ordered. These categories include:
- Education costs and other special needs of the minor child(ren)
- Travel expenses for visitation
Extension of Child Support Beyond the Age of Emancipation
In some cases, the court is allowed to extend child support beyond the age of emancipation for educational or other reasons. The parties may also agree to extend payments made by a parent for the benefit of a child. In such circumstances, a writing is required with carefully crafted language that child support will be extended. The court must indicate with specificity why it is ordering child support for an adult, or the parents must have a written agreement. Some examples include the following:
- Payment of college education expenses such as books, tuition, incidental fees, room and board, and reasonable living allowances
- Child support for an incapacitated adult child.
Adult Child Support
In family law, child becomes an “adult” when either one of the two below occurs:
- A child reaches the age of 18 and has graduated from high school, OR
- A child reaches the age of 19
When a child becomes an “adult,” the court loses jurisdiction over the child as it relates to child custody and visitation and child support, unless special circumstances are present.
Under limited circumstances, child support can be extended beyond emancipation to otherwise become known as adult support for a child who is incapacitated from earning a living and without sufficient means. Under Family Code 3910, “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age, who is incapacitated from earning a living and without sufficient means.” (Emphasis added)
Incapacitated From Earning a Living
The word “incapacitation” has been used in the mental health context and has included “emotionally disabled” adult children and adult children with psychological disorders. To demonstrate the incapacity, an independent medical exam is required. This will allow medical professionals to measure the extent of the adult child’s incapacity and the likelihood of the adult child developing a marketable skill set.
Without Sufficient Means
The idea is that society should not bear the burden of caring for incapacitated adults who have parents with the means to do so. Without sufficient means is defined as whether the adult child will end up requiring governmental benefits in the future. A proper adult child support order should eliminate any need for governmental benefits.
Will the court impute income to the custodial parent?
If you find yourself in the situation where you are paying high child support because the custodial refuses to work or remains woefully underemployed, read on.
The court has discretion to impute income to both parents pursuant to Family Code §4058(b), which provides as follows: “The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”
Standard to Impute Income to a Custodial Parent
It is the moving party’s burden to impute income to the other parent. In the area of child support, the rules for imputation of income are specific. In re Marriage of Smith (2001) 90 Cal.App.4th 74, confirms it is an abuse of discretion to impute income to a party who lacks either the ability or opportunity to work – earning capacity cannot be substituted for actual income unless actual opportunity is shown. (Id. at p. 82.) In In re Marriage of Henry (2005) 126 Cal.App.4th 111, this Court reversed the trial court’s imputation of income where the husband had failed to show present job opportunities for wife. As the court explained in In re Marriage of Berger (2009) 170 Cal.App.4th 1070, [I]ncome cannot be imputed based on a party’s earning “capacity” absent proof of both ability and opportunity to earn the income on a going-forward basis.
The Fourth District Court of Appeals in Orange County seemed to set a higher bar to impute income to a custodial parent with its decision in Marriage of Ficke (2013) 217 Cal.App.4th 10, 13 which held that any imputation to a custodial parent must be supported by substantial evidence that the imputation is in the children’s best interest.
Thus, the current state of the law when it comes to imputing income to a custodial parent is this three-pronged test: ability + opportunity + substantial evidence imputation is in the children’s best interest.
Ability can be shown through producing evidence of the custodial parent’s prior work history, if any. The custodial parent’s resume or Income and Expense Declaration should state his/her prior work history.
Opportunity is a trickier prong because evidence is needed of available jobs within the parent’s ability in his or her locale. Expert testimony through a vocational evaluation has more weight than offering Craigslist postings, although if a vocational expert cannot be hired due to cost, the want ads are the second-best option. A vocational expert will interview the other parent to assess his or her job history, work skills and suitable employment opportunities in the area. The expert will then prepare a written report of his or her findings and testify to it at court. Although the burden to impute is on the moving party, the parent seeking to impute need not prove that the custodial parent would have received the job in question.
The third prong requires substantial evidence imputation is in the children’s best interest. Usually, imputing income to a non-custodial parent is an easier sell because the result is an increase in child support and money available for the child. However, when imputing income to a custodial parent, the result is the opposite, a decrease in child support and resources for the child. The court will strongly consider the age of the children as substantial evidence of best interest to impute: Relevant questions in the court’s inquiry:
- What is the parenting schedule?
- How old are the children?
- Does the proposed employment opportunity allow the custodial parent to be home for the children?
- Do the children have special needs that require extra attention? If so, which parent has been primarily responsible in attending to those needs?
- Is there a history of the custodial party shirking employment opportunities to get even with the other party?
- Has the custodial parent been dishonest when disclosing her finances?
All of these questions should be addressed at the hearing to give the court an adequate record in case the court imputes income to the custodial parent.
What if the custodial parent has no earning potential?
Earning capacity under Family Code 4058(b) is not limited to earnings from employment. Courts have the discretion to impute income from other sources. California family courts have imputed income to parties based off of:
- Prior loan applications
- Bank statements showing deposits of money in excess of a party’s stated income
- A rate of return on assets in a bank account
- Regular gifts of money received by a party
- A party’s monthly expenses where insufficient income and/or assets are available to pay those expenses.
Loan applications and bank statements are fertile areas for imputation evidence in child support proceedings. The party seeking to impute should conduct discovery into these areas prior to the hearing.
Although it is an uphill battle to impute income to a custodial parent, it can be done if the court has the proper evidence before it.
Are Gifts Considered as Income for Purposes of Child Support Calculation?
In the recent Court of Appeals case of Anna M. v. Jeffrey E, Anna M., the mother, had been financially supported by a friend named David F. Anna does not work and has no other source of income. On the other hand, Jeffrey E., the father, makes over $33,000 per month. Jeffrey argued that Davis’s financial support should be considered as income to Anna for purposes of calculating child support. The trial court characterized the financial support to be gifts and that they should not be considered as income to Anna in calculating child support.
On appeal, the Court of Appeals focused on two key cases that involve discussions on how the courts have treated gifts for purposes of child support calculation, In re Marriage of Alter (2009) 171.Cal.App.4th 718 and In re Marriage of Williamson (2014) 226 Cal.App.4th 1303. In Alter, Father had been receiving regular payments of $6,000 from his mother which occurred monthly for more than a decade. The court stated that a gift can be a deemed income if the obligor parent will continue receiving such gifts in the future. The court further stated that the relevant focus is the parent’s economic status at the time the child support calculations are made by the court. However, gifts are not always considered as income. The question of whether gifts should be considered income for purposes of child support calculation is one that must be left to the discretion of the trial court. In the end, the court in Alter held that the regular payments amounted to income available for support to the Father.
In Williamson, Father’s parents had been giving annual gifts to Father, Mother, and the child during the marriage. Father’s parents had also advanced money to Father and Mother for various expenses such as home purchases and renovations. The court in Williamson concluded that the cash advances were not considered as income to Father because the advances were irregular and outside the traditional concept of income as a recurrent, monetary benefit. In addition, there was evidence that showed that the grandparents had ceased giving the obligor father gifts. The court in Williamson focused on the fact that relatives do not have a duty to support a family member’s minor children. The parents have a duty to support the child. The courts were hesitant to treat the gifts as income because support payments that are based on money that have no guarantee of continuing would be unfair and unreasonable as the obligor parent would not be able to make those payments.
The Court of Appeals took after the Williamson case in that the Court of Appeals noted that the relationship between Anna and Davis was not one that met the statutory definition of non-marital partner or familial relationship as Davis only claimed that he was a close friend of Anna and the child’s godfather. If anything, the Court of Appeals believed the relationship was one of “legal” strangers. The Court of Appeals also stated that Davis’s financial support is not derived from Anna’s capital, labor, or any combination of the two nor did the evidence at the trial court level establish how long Davis had been fully supporting Anna, how long he had been giving her cash gifts, or how much the amount of cash he gives her varies from month to month. There was no indication as to whether the amount of cash Davis gave to Anna was based on her request for a particular sum, is tied to her actual spending and is intended to pay for specific expenditures, or if the amount is determined at Davis’s whim. The gifts occurred on an as-needed basis to pay particular expenses. The gifts do not bear a reasonable relationship to the traditional meaning of income as a recurrent monetary benefit to be deemed income to that parent for purposes of calculating child support. The court also analyzed the situation from the standpoint of the obligor, Jeffrey, as ordering a child support payment of $2,505 per month would not impact his ability to provide for the child or have any significant detrimental impact on his financial situation. In the end, the Court of Appeals concluded that the gifts received from Davis were not income to Anna for purposes of child support calculation.
Free Consultation from an Orange County Child Support Lawyer
If you are facing a child support case, our experienced team of Irvine family law attorneys can help! Contact us at our Orange County office to schedule your free consultation to discuss the next steps for your case. (949) 955-9155. You can also click here and send us an email.