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CHILD SUPPORT LAW:
FREQUENTLY ASKED QUESTIONS
Here are answers to the most frequently asked questions.
THE CUSTODIAL PARENT KEEPS INTERFERING WITH
MY VISITATION... DO I STILL HAVE TO PAY?
Yes, by law the two issues of child support
and visitation are not connected. In some states, however, concealment by the custodial
parent can result in suspension of child support and reversal of custody. YOU SHOULD
ALWAYS DOCUMENT INTERFERENCE WITH VISITATION, AND FILE FOR ENFORCEMENT EVERYTIME IT
HAPPENS. There are other legal enforcement's available for a parent's refusal to comply
with a child visitation order. You can file a motion to compel a custodial parent to
conform with an order for visitation.
I DON'T HAVE COURT ORDERED JOINT CUSTODY OR
ENOUGH VISITATION, BUT I WANT TO SEE MY CHILD!
Children need both of their parents, and
you have a right to a relationship with your children. Up to now, only lip service has
been paid to parents who want to increase the time they spend with their children. There
are specific rules for how to modify visitation and custody, and they are difficult to
get. You need to study the statutes on "best interest of the child" carefully so
that you can prepare your case properly.
There is a new provision of the Family Code
effective in 1997 that you can file for a visitation order in a District Attorney action
without having to file an independent Paternity action as was the law before. Seeing your
child effects the amount of support you pay under Guideline, so spend as much time with
the child as possible and then some. If you do not have a visitation order, get one. If
you do, then enforce it.
WHY DO I HAVE TO PAY BY WAGE ASSIGNMENT?
This is one of the most intrusive aspects
of Family Law. Most people who don't owe child support don't understand what a sensitive
issue access to your pay records, and letters to employers concerning garnishment really
are. It makes the child support owing parent look and feel like a common criminal. It has now been the law for at least five years that the Court can issue a Wage
Assignment if requested at the hearing or upon exparte notice (that is no notice in
effect) whenever a child or spousal support order is made. No arrears have to exist. Some
Counties will not process a Dissolution Judgment unless a Wage Assignment Form is
submitted. The best advice is always to keep out of family court and avoid any kind
of litigation or involvement by the District Attorney. This requires rapport with the
custodial parent. Obviously, this isn't always possible.
I GOT PULLED OVER FOR A TRAFFIC VIOLATION,
AND WAS TOLD MY DRIVERS LICENSE WAS SUSPENDED.
Be Federal Law, all states must now provide for the
suspension and revocation of drivers and professional licenses for failure to pay child
support. If you fail to pay Court Order Child support even for 31 days, the District
Attorney has the right to contact the DMV and ask for a suspension. The DMV only notifies
you by mail at the address listed on your license. You are supposed to receive a thirty
day warning, and given a form to fill out and send back to the DMV who is supposed to
issue a 90 provisional license in order to give you time to get with the DA and straighten
out the arrears. This does not always happen. In some Counties, the backlog is longer, and
others the computer gets the information to the DMV too soon. This is why it is important
to always pay the DA once you receive written notice from them to make payments directly
to them even if the custodial parent asks you for payment directly.
If this happens, you really need to get legal help with an
attorney because the rules for the Motion for Reinstatement may change from county to
county. Also, moving out of state won't help because when you go to get a license there,
if the DMV has put a hold on your license, you cannot get one from the new state.
One alternative is to refuse to cooperate, stop paying the
DA, and drive without a license. Sound extreme? Unfortunately, that is the kind of world
we live in now.
THE DISTRICT ATTORNEY KEEPS DRAGGING ME
BACK FOR AN INCREASE IN CHILD SUPPORT? WHY????
States vary in what kind of change is necessary for the
modification of a child support order. As a general rule, any time there is a change in
income of either parent of about 20% then there is a chance that the child support should
go up or down. If Welfare is being paid out, or someone was on unemployment or worker's
compensation at the time the order was made, then it is assumed by the DA that after six
months the passage of time may be enough to produce a change in circumstances.
WHAT CAN I DO?
Many Counties now have a program called the Court
Facilitator which can help you fill out an income and expense declaration and run a
computer program indicating what your child support should be. This is a free service. Never rely on the DA to tell you, as their figures will most
likely be higher because they tend to not include a time share factor. Call the clerk of the court, or visit the courthouse in advance of any hearings
to discover if there are any organizations helping ncp's with these kinds of cases. Ask.
If there aren't, then you are on your own, and you need to get educated fast, or hire a
lawyer. Just be aware that lawyers often just show up, they don't necessarily work to
represent your interest, and they certainly won't perform any research on your behalf.
Sometimes you are better off simply showing up for the hearing, and talking directly with
the judge. Never settle with the DA without representation or first appearing in open
court. The DA often misrepresents the situation (lies) and always uses strong arm closing
tactics which often result in signing a document you later regret. Don't beleive them when
they tell you the judge will be rougher than they will be. This is usually a lie.
I COULD NOT FIND THE CUSTODIAL PARENT FOR
SOME TIME, AND NOW THE DA SAYS I OWE THOUSANDS OF DOLLARS IN BACK SUPPORT. IS THIS FAIR?
No, this is not fair, but unfortunately, they are within
the law. In some states, you may not be liable for child support if the custodial parent
actively conceals the child. The list is shrinking, however, since the trend is to declare
the two issues of child support and visitation completely separate. You should have ANCPR prepare a research on this for you,
and then see a lawyer.
WHAT IS MEANT BY ARREARS AND HOW ARE THEY
COLLECTED?
There are two sets of rules on arrears; one for welfare and
one for non-welfare. The rules also change as to how long the child is hidden, and what
efforts you made to locate the child. You are always advised to pay on the orginal order
directly to the DA (or whoever the collection agency is in your state) being sure to get
receipts. Keep all receipts in one place, perhaps in a book, so that you can prove you
have paid. Cancelled checks with signatures and stamps and dates are always the best,
short of signed receipts. You also should make sure you understand when your child support
ends. Some states require a court order to stop child support, even though the child has
reached the age of majority.
WHY 10% INTEREST? Not
all states require interest on arrears of child support. The ANCPR Associate Report will reveal whether
interest can be charged on your arrears. There is often a specific statute which allows
child support interest to be calculated at 10 percent. However, some of the older orders
do not contain the provisions necessary to collect interest so make sure you receive legal
advice before you capitulate to the interest amount. Since 1970, in many states, the rules
for interest have changed two or even three times, so you need to know what the situation
was for your case.
If any of the money is AFDC/Welfare
arrears, the County is not permitted by statute to waive interest, but if the money is
solely owed to the obligee, they have the power to waive interest. This is usually done to
facilitate a onetime lump sum settlement of the arrears. The custodial parent may want to
just settle. You can negotiate these things if welfare is not involved.
I, MYSELF, AM ON SSI (OR WELFARE,
DISABILITY, WORKER'S COMPENSATION, UNEMPLOYMENT) AND CANNOT PAY MY OWN BILLS. WHAT DO I
DO?
There are specific rules in the Family Code
and Welfare and Institution Codes which tell the Court and the DA how to calculate support
for your case. If you are on AFDC, the DA cannot enforce child support against you. If you
are on SSI, to the extent that the federal government pays additional compensation to the
custodial parent for the minor child, then that comes off your support obligation. If you
are on Disability, Unemployment or Workers Compensation, then your support obligation is a
fraction of what you get. Make sure both the DA (and the Judge if you are going to a
hearing) know what kind of entitlement you are receiving, and attach a copy of any award
letter, checks or other documentation to you Income and Expense Declaration.
MY EX IS GETTING AFDC FOR OUR CHILD, AND I
HAVE A CHILD OF MY OWN THAT I AM THE CUSTODIAL PARENT FOR. THE DA SAYS THAT DOESN'T
MATTER. ARE THEY RIGHT?
Ivansco
recently reversed this rule. Hardships can now be claimed and applied to your income
calculation whether or not your ex is receiving welfare.
I'VE ALWAYS PAID MY SUPPORT TO THE PARENT
DIRECTLY CASH, AND NOW THE DA SAYS I OWE THOUSANDS. WHAT CAN I DO?
Always get a receipt for payment of
support. DO NOT PAY CASH unless you get a receipt. Research shows that at least 25% of all
AFDC cases involve some sort of fraud, and it is probably closer to 40%. If the parent
insists on cash, then a light bulb should go off in your head. The burden of proof is upon
you to show payment, and with cash, and the other parent on welfare, she is probably not
going to admit receiving it because every dime the parent receives, she must report or
else she herself has committed welfare fraud. Paying the rent, grocery bill, clothes,
etc., will not cut it either if welfare is involved.
ALWAYS PAY VIA MONEY ORDER, CHECK, OR IF
CASH, WITH SIGNED RECEIPT BY THE CUSTODIAL PARENT.
When paying the DA, they too insist on
money order or certified funds for the most part.
I DON'T HAVE ANY RECEIPTS, NOW WHAT?
If you have paid in cash, then you must
bring a witness to the hearing to verify payment to the custodial parent of the cash, any
bank records (subpoena if necessary) verifying direct deposit to the other parent's
account, or any letters or other documents where there is an admission of receipt of
funds. Otherwise, you will probably lose.
Information below comes from the following site:
http://www.baucomlaw.com/iso.htm
What to do if the District Attorney (DA) calls.
(For purposes of this discussion, these answers will pertain to the state of California.)
WHY DOES THE DA CALL? The
District Attorney (DA) for each county in the State of California is assigned the task of
collecting child support.
WHAT IS THE PROCESS?
The DA, in turn, notifies the State Franchise Tax Board (FTB) in Rancho Cordova of all
cases where there is an arrears balance. This state wide collection program has been in
effect now for several years, and has its pitfalls. It was been subject to public
criticism for failure to collect revenues and its inability to communicate with both
custodial parents (those wanting their money or obligee) and the noncustodial parent
(those having to pay or obligor). In most counties, the District Attorney notifies FTB
once a month via computer who is in default.
Originally, the FTB only collected money owed from tax
refunds, or sought payment from Worker's Compensation, unemployment, and other forms of
entitlement. They, as well as the District Attorney, also have the power to issue Earnings
Withholding for Support and Tax Liens which can:
(1) get any bank account with the name of the obligor on title;
(2) suspend both professional licenses and driver's licenses: and
(3) record the obligation on credit reporting agencies. The FTB is doing these
enforcement's.
WHAT DO I HAVE TO PROVE? The burden of proof is upon the obligor to prove that the support
is paid. One cannot contact the FTB directly, and must go back to
the County where the order is being enforced. This does not necessarily mean the same
county where the order is made. Depending on the size of the County, this procedure can be
a nightmare.
HOW DO I KNOW WHICH COUNTY? Which county one is dealing with is also
dependent upon the residence of the child. If the child lives in Los Angeles County, then
their District Attorney is enforcing the order. If the child lives out of state, then the
County where the obligor lives should be doing the enforcement. Make sure you contact the
proper office.
WHAT IF I LIVE OUT OF STATE? Out of state enforcement of child support orders are subject to Federal Law
restrictions. Know your rights on jurisdiction if you are not a California Resident
receiving bills from a District Attorney's Office here. Once a District Attorney becomes
involved, you are going to require legal assistance.
INTERCOUNTY SUPPORT OBLIGATION
(DISSOMASTER or SUPPORT TAX)
Also new for 1998 is the Intercounty Support Obligations Statute (Family
Code Section 5600) adopted 1/1/98, which makes the clerk responsible for advising the
"other counties" in which the original order or modifications were issued that
no further proceedings regarding the obligor’s support obligations shall be filed in
any other counties once it is registered in the new county. The County of Registration is
based upon where the minor resides. The problem with this will be communication
until such time as the central registration is effective.
A word of caution: California child support is calculated under
Guideliner, which is a computer generated child support formula, most usually used through
one of two programs (DISSOMASTER or SUPPORT TAX). The programs at this time are only set
up for California Taxes and based upon factors relevant to California law for calculating
child support.
If you are out of state, and faced with California modification
proceedings, it is important to talk to a California attorney to have them run either
Dissomaster or Support Tax to see how much your child support will change once it is
modified under California law, since our statute may calculate child support very
differently than how it was calculated originally.
The following information appears on a lawyer's page
http://www.baucomlaw.com/iso.htm
PASSPORT REVOCATION
Well, its is going to happen. You can lose your
passport over child support.
The first states have now begin to send listing of
delinquent child support payors to the State Department. Orange and Los Angeles Counties
are not far behind.
Our legal office have determined that the Orange County DA
will be on line come February 1999 to begin reporting delinquent support payors to the
California State Department. What this means, is that those who owe back support will not
be able to leave the country legally.
The Federal enabling statutes were tied into the Welfare
Reform Act of 1997, and effective October 1997.
It has been our experienced, that the DA will not release a
professional or drivers license without an agreement to pay 25% of what they believe are
the arrears (including interest), and the assumption is that the DA will take the same
position with respect to release of passports.
HOW DOES THIS IMPACT YOU IF YOU OWE CHILD SUPPORT?
What this means, is that if you owe $10,000, you better be
prepared to pay at least $2500 to get your passport back. If you do not have that kind of
money, you'll need to ask the court to set an amount you can pay.
Most judges who hear the driver's license motions will
order the DA to release a license once three payments have been made on what the court
orders to be made on monthly payments. Generally the courts will order at a minimum three
percent of the outstanding balance to be paid monthly, or a minimum of $250, but this
assumes that the current support and arrears payment do not exceed thirty percent of the
take home pay.
The catch here, just like the drivers license motion, is
that you first must have an administrative review with the DA before you ask the court to
intercede. Also, at this time, because there are no forms available on "how to file
the Motion" it could be that each county may have some local peculiar rule until such
time as the Judicial Counsel (the people in Sacramento who set up the court rules on
filing procedures) come out with a form.
We do provide service to overseas clients living in foreign
countries. We realize how difficult it is when you live overseas and we can represent you
during the legal process, saving you hours and expensive trips. This may become even more
important now if you are overseas, and can't come back because your passport has been
revoked.
EMPLOYER’S REGISTRATION OF NEW EMPLOYEES
According to new Federal Law, new hires after October 1997,
must be submitted to the IRS for verification as to any outstanding child support orders.
This too was part of the Welfare Reform Act. Exactly how it will be enforced is not clear
at this time.
Most likely, since once one is hired, they employer begins
to deduct and pay to the Franchise Tax Board State Income Taxes, and that is when the FTB
then already contacted the employer with their own type of Earnings Withholding Order for
Support (under the Tax Code and not Family Code). These withholding orders have already
been in effect in California for two years, so this Federal Law is probably not going to
make much a difference in California.
What makes a difference is the "administrative"
procedure involved in getting the District Attorney to stop this type of enforcement since
it is unclear as to whether the Family Law Court has any jurisdiction to modify a FTB
Earnings Withholding.
This is one area where someone definitely needs legal
counsel.
CAN I GO TO JAIL IF I DON’T GET A JOB???
(DO I HAVE TO BE EMPLOYED? WHAT IF I CAN'T GET WORK?)
On February 2, 1998, the California Supreme Court published the Moss
opinion (Moss vs. Superior Court. 17 Cal. 4th 396 ). Prior to January
1998, many judges and commissioners were divided as to the remedies available to them when
faced with a criminal contempt for non-payment for support (P.C. 270) when someone raised
the issues of inability to find work.
The prevailing thought was that making someone work to pay support was
involuntary servitude. One could go to jail for not paying support but not for failure to
get a job or for failure to pay welfare arrears. This has now changed under Moss as least
to the failure to pay ongoing child support.
Moss now stands for the proposition that if a person refuses to work,
and does not pay the support, they most likely can be sentenced to jail time for failure
to work. Remember, Moss involved a current support order and not arrears over five years
old (which are not subject to criminal contempt).
Moss also involved a fact pattern where the support was still ongoing.
The key here is that Mr. Moss did not pay anything at all. So, if you are in arrears, PAY
SOMETHING each month, even if it is less than the amount ordered.
If you loose your job, and file an OSC for a downward modification, if
you have paid zero for the 45-60 days it takes to get your OSC filed and heard, the
hearing officer will be less sympathetic to your plight. Go and actively look for a job,
and take copies of any letters of rejection, interviews, and other documents (similar to
what unemployment is going to want anyway) to show that you are trying.
If you do this, then most judicial officers will give you a 60 to 90 day
review to see if you can find employment, even if it is less than you normally make or in
a different field. This is called the "burger flipping" order, or an order to
find something (even if it is McDonalds) to show the court that you are trying. Also, if
you are on unemployment or disability, send in 25% of that money to the DA with a letter
that you lost your job and are looking. If you do not find something within 30 to 45 days,
file the OSC (even if in pro per) because there is no retroactivity beyond the filing date
of your request to lower your support. Most people get into trouble when they ignore the
order.
Most criminal contempt charges are filed when you go six months to a
year without making a single payment. When you do file that OSC asking the Court to lower
the support, (1) you have got a big arrears already; (2) the hearing officer won’t be
real sympathetic; (3) the DA will treat you like a deadbeat; (4) and you may end up with a
PC 270.
So, if you find yourself not being able to make the entire payment, pay
something and don’t ignore the child support completely.
UIFSA? WHAT IS UIFSA?
The UIFSA system is based on the primacy of just one support order.
Under URESA or RURESA, the order developed through the interstate process could co-exist
with non-interstate orders, so there could be more than one valid support order at the
same time, between the same parties. Proliferation of orders made enforcement a nightmare.
A person could be faced with conflicting orders from more than one state, and see his
employer pay on both orders, even they orders were for support for the same child. Others,
could find their pay deducted more than the federal limit of fifty percent. In theory,
UIFSA made sense.
UIFSA opted for a "one-stop shopping" approach, giving a state
"long-arm" jurisdiction over a child support debtor even where nonresident. This
is an exception to the normal rules of law where a court would not have jurisdiction over
a nonresident. A state would have this jurisdiction, essentially, if one party or child
resides in the state or if the parties agree to transfer continuing exclusive jurisdiction
to another state.
The first state to impose a support order retains "continuing
exclusive jurisdiction" as long as one of the parties continues to reside in that
state or if both parties agree to transfer jurisdiction to another state. Until one of
those events occurs, only the state which authorized the original support order can modify
the award. In this way, all parties, courts and enforcement officials are assured that,
between UIFSA states, there can only be one support order in effect at any given time.
In modification proceedings, it will be the law of the "continuing
exclusive jurisdiction" state which will govern whether or not the nonresident has a
duty of support. Note, however, that for enforcement purposes, it will be the law of the
enforcing state that will govern enforcement proceedings.
So, if the order is from Alabama, and Mom and the child move to
California, if Dad still lives in Alabama, only Alabama can modify the order, but
California has the power to try and collect it. Either California or Alabama can issue
Wage Assignments, and if both do, Alabama prevails.
An employer faced with a California Wage Assignment must pay the money
requested but only if Alabama does not already have a Wage Assignment in force first. The
employer can only take out 50% of the net, and no more. If Dad moves from Alabama, then
Alabama loose jurisdiction to modify, but California only gets modification jurisdiction
if Dad takes up residency there.
Eventually, even though Wage Assignments now have the capacity to have
payments made directly to the custodial parent, at least in California, the ultimate goal
is that each state will have a child support clearing house where an employer who receives
a wage assignment must send the money. How it then gets to the parents is the state’s
problem. This should be the 1999 problem.
UIFSA & STATE REGISTRATION
Once issued, a support order may be sent to any other UIFSA state for
registration. (This part hasn’t changed). Registration means that the order can then
be enforced in the new state just as though it had issued the order. Registration in
California is about a thirty-day process. The obligor is mailed a copy of the petition and
has thirty days to hire California counsel and contest the registration.
If you (the obligor) live in California, opposing registration is a
futile, expensive , and unnecessary task Smart attorneys will soon realize that all they
have to do is to mail the California Wage Assignment on the out of state employer, and
then the employer must begin deducting the payments if the person is still an employee. This
can be done before the registration process is begun.
The advantage of registration is that you can them begin criminal and
other enforcement proceedings against the absent parent.
Registration does not give the enforcing state any authority to modify
the order unless the obligor lives/ has moved to that state. The initiating state
maintains continuing exclusive jurisdiction even though the debtor lives, or the order is
being enforced, elsewhere, if at least one of the parties lives there.
California adopted UIFSA on January 1, 1998. The most significant change
with the adoption of Family Code Section 4900 et seq. are the changes in the ability of
California to enforce an out of state order more rapidly and more effectively. It used to
be that if "Mary" got a Wage assignment in Ohio, that order had to be registered
in California (30 day wait) and then another six weeks wait for a California wage
assignment.
Now under UIFSA, that same Ohio Wage Assignment if served upon a
California employer is effective without registration and a new Wage Assignment.(Family
Code Section 4940). The employer is civilly liable for any willful noncompliance. For the
order to be modified it still must go through the registration procedure.
One of the areas I have seen problems with the new statute is with the
person who is on active duty with the military and who is stationed outside of California.
If the custodial parent and the minor child move to California, and the parent opens a
file with the District Attorney for enforcement purposes, the DA has a difficult time
understanding that (1) UIFSA does not give them the right to modify the order unless the
home state of the military person is California and (2) that person is not on active duty
overseas.
If this happens to you, get legal help before you find yourself
thousands of dollars in arrears, which you probably don’t owe any way if you pay
support via allotment.
The second issue I have seen arise is when the person receives two bills
from two different agencies on the same support order. There is unfortunately no
communication between Orange and Los Angeles County District Attorney Offices (at this
time), let alone two out of state enforcement counties, so it is not unusual for a person
to get bills from both Counties simultaneously.
Lockeed-Martin is supposed to be developing a computer system scheduled
to go on-line summer 1998 (it was supposed to go on line summer 1997 and had too many
problems) such that each of the state counties will have instantaneous access to support
orders from other counties. This was doe to comply with the ultimate goal of one central
payment cite for the entire state (rumor has it is the FTB) for payment of any and all
child support orders when payments are directed through the District Attorney (welfare and
non-welfare).
This will hopefully make the "conflicting order" problem go
away. However, California is already one year behind it its compliance with Title IV
requirements, so don’t be surprised is this problems continues through the end of the
century.
For more information, if you need representation in Southern California,
contact http://www.baucomlaw.com/iso.htm |
