A difficult obstacle to overcome in Family Court is the contentious issue of child support. Often both parents want to support their children in some way, but may disagree on the best way. Reaching an agreement that works for both parties can be a painstaking effort, with lots of back and forth, paperwork, compromises and even child support modifications.
While the child is a minor, depending upon the circumstances, a child support agreement may be revisited or modified multiple times. Sometimes the first child support agreement doesn’t meet the needs of the children. Additionally, both parents’ circumstances may change as their careers, living arrangements, and relationships evolve requiring the need to modify the original child support agreement.
What are the Elements of Child Support?
Child support is really three different things;
- Custody. This is either Legal Custody (who has say-so over the child’s health and welfare) or Physical Custody (the timeshare between the parents with the child)
- Support. This is the amount that each parent will pay towards the needs of the child. This can be based on income, custody time and visitation.
- Visitation. This is where an agreement between the parents is reached concerning the amount of time or days each parent will spend with the child. Each parent agrees to abide by the agreement and its terms. The agreement can have a fifty-fifty or equal amount of time with each parent, or it can be an agreement where one parent has more days or time with the child, depending upon the circumstances of the parents and needs of the child. The agreement for timeshare is typically determined at the beginning of the case to establish an agreement that will keep any misunderstandings from occurring as to when each parent has the child in their care. This is the initial or “Temporary Order” from the Family Court for Child Custody.
Reasons to Modify Child Support
Things change and that’s a huge part of life. Our jobs, careers, and relationships will evolve. As such, our ability to provide for our children may also change. Sometimes, after a child support agreement has been entered into and is an Order of the Court, one or more parents may wish to modify the Order. Generally, the parent requesting a change must show proof that there’s been a change in circumstances. This requires the parent to explain to the Court what those changes are and why the Order should be modified or changed. This testimony is presented to the Court through that parent’s declaration. This process can be contentious if one parent is fighting the child support modification, so representation can be very helpful.
Court can be avoided if both parties are able to agree to the terms of the new child support agreement. The agreement is then prepared by an attorney and it is submitted to the Court, approved and signed by a judge.
Parents may need to change the child support agreement in the following circumstances:
- An increase or decrease in income
- Job loss
- Changes in the amount of time the child spends with each parent
- If one parent has another child in another relationship
- Change in child’s financial needs
- Changes in any factor needed to calculate child support
If the parties can’t reach an agreement, the requesting parent must file a Request for Order motion. A hearing is scheduled where evidence is presented by both parents for the judge to consider. If there is a change of circumstances to warrant a child support modification, a new Order will be put in place.
Verbal agreements are not legally binding in the case of child support. If you voluntarily pay the amount you feel is appropriate without a new Order you may be liable for the difference, plus interest on the difference.
A “petition to modify child support” or a “motion to modify child support” were previously filed through an “Order to Show Cause” motion. This “motion” has been replaced by the “Request for Order” in which the San Diego and Orange County (CA) Courts will issue such Order after a hearing.
Opening a Child Support Modification Case, Based On Situation
There are multiple court forms to fill out. Your attorney will help you make sure that you are represented in the best possible light and for the best possible outcome for your child or children.
The initial document will be a “Request for Order” which should include a ‘Declaration’ that your Attorney will help you prepare. The Declaration is your ‘Testimony’, especially if the Court does not have time to allow you to describe all of the circumstances that are unique to your case.
You will also need a “Custody and Visitation Plan”. If you can agree on a schedule with your (soon-to-be) ex-spouse, this is ideal. If the isn’t possible, you may have to fight for you and your child’s rights.
Your Attorney will guide you through this process.
If you were never Married:
If you and your spouse were never married, you will first have to establish parentage. Your Attorney can help you prepare this form. If you are listed on the Birth Certificate or have other proof you may not need to take a DNA test to establish parentage. Also if the other party agrees that you are the parent, you will not need to take a DNA test. If you are denying that you are the parent, you may need to take the DNA test which will conclusively prove whether you are the parent.
If you are Married or Registered Domestic Partners Who Are Divorcing/Separating:
Married parents or registered domestic partners can apply for child support services once they’ve filed for divorce, dissolution of domestic partnership, legal separation, or annulment. Once there is an open case for dissolution of marriage, legal separation, or annulment, a parent can request a court date for child support.
Married or Registered Domestic Partners Who Are Not Divorcing/Separating
Sometimes married parents or registered domestic partners do not wish to file for divorce or legal separation. In this case, one parent may open a child support case that allows the court to make child support and custody orders.
In domestic violence situations, a parent requesting a restraining order may also request child support while requesting the restraining order. Your Attorney will help to fill out the paperwork.
Petitions for Custody & Support of Minor Children
Both married and unmarried parents can start a case with a Petition for Custody and Support of Minor Children. Unmarried parents must have a signed declaration of parentage or paternity for this. In these cases, the court determines custody and child support.
If you BOTH agree to the Custody, Support and Visitation then your Attorney can turn that into a Stipulation and file it with the Family Law Court. This may require some consultation between your Attorney and the other party (or their Attorney) also. Once filed, you will be issued an “Order” which is binding and legally enforceable. No Hearing is required for this shortened process.
San Diego Superior Court – Family Law Division
San Diego child custody court and laws are in compliance with the State of California’s laws governing all family law matters. There is a Family Law division at every Superior Court in San Diego and Orange County where all Family Law matters are filed and heard.
Use Your Attorney!
We often represent families and their needs for child custody. Family Law is all we do. We handle all matters in the Family Law Court. The court will eventually issue an “Order” which is binding. (If this is the initial Custody Order, please see our article, “How to File for Custody in San Diego”.)
File with the Court
Once your Attorney has prepared your “Request for Order” documents, your Attorney will file these with the Court along with your Declaration, which is your testimony.
COVID has very much impacted all cases in San Diego. You may not be able to immediately get a hearing date, but eventually the court will set this hearing.
Serve the Other Parent
You have to serve / notify the other parent of the Court Hearing. You cannot serve them yourself! Your attorney will arrange for this. They will include a blank “Responsive Declaration to Request for Order” where your ex-spouse or parent will have a chance to describe their plan.
The other person has to be served or the court will not make any orders in your custody case unless the other parent has been properly served.
Go to Mediation If Required
In San Diego, parents must attend the mandatory mediation if there is a custody and/or visitation dispute, except in the case of child molestation, child neglect or child abuse, in which case emergency temporary orders may be issued. This is before your court hearing date. You must attend your mediation session. The goal of a mediation session is to help both parents discuss their disagreements about a parenting plan.
During this session, a specially-trained counselor/mediator will listen to both parents. As an impartial participant in the discussion, the mediator will listen to both parents’ concerns. The mediator can explore different parenting arrangements to find one in the child’s best interest. The mediators try to help parents create a plan that allows the child to spend time with both parents to some extent. The mediator also assists the parents in dealing with any lingering resentment issues.
In cases of domestic violence or restraining orders, the parents can meet with the mediator in separate sessions.
If you and the other parent agree on a parenting plan, you should review the detailed parenting plan with your legal counsel. Then, your Attorney can file it with the court.
Sometimes parents don’t reach an agreement in the mediation session. If this is the case, the mediator can give a written recommendation to the parents and court for custody arrangements. You do not have to agree with the recommendation, so be clear to the mediator during the session.
What to Expect at your Hearing
Your Attorney should brief you on what to expect at the Hearing. In San Diego right now, these are almost always held remotely – like with Zoom of Team Viewer. Typically there is a docket of cases to hear. Your Attorney may decide that you need more time than the court has available – in which case they will ask for a “Continuance”. While this may temporarily postpone your day in Court, it may be necessary to allow the Court time to understand all of the issues.
Be honest and prepared to tell the judge what you believe is the best arrangement for your child. This is done in the Declaration paperwork your attorney prepares. Make sure that you put forward why your parenting plan is in the best interest of your child. Your Attorney will do most of the talking at the hearing. You may end up summarizing, or just confirming certain aspects of your “Declaration”.
Once the court has made a decision, the judge will issue and sign a court order for custody. This order is legally enforceable. It will include visitation schedules, financial arrangements and all other aspects needed for child custody.
Hassett Family Law, a Professional Corporation
Hassett Family Law, PC, is located in San Diego, California to help families through the most difficult times of their lives. We specialize in – and only handle – Family Law matters. We have on staff Certified Family Law Specialists that have achieved special recognition from the California State Bar. To learn more about our practice or to set up a complimentary consultation, please contact our firm by calling 858-504-7824.
Disclaimer: This blog post is just for informational purposes and does not constitute a legal client-to-lawyer relationship between Hassett Family Law and the person reading this.