Main Factors • Additional Child Support • Arrears

A parent's first and principal obligation is to support his/her minor children. Each parent has equal responsibility to support the child. The Court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.

Statewide Child Support

The state has a mandatory uniform child support guideline to determine the amount of child support. The Court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child's best interest or the application of the guideline is unjust for a number of reasons specified in the Family Code. The reasons are very limited, giving the Court little discretion (power) to order an amount different from the guideline.

Main Factors Used In Calculating Child Support

The guideline formula takes into account a number of factors described below. Notice the child support guideline formula does not take into account your expenses, such as rent, food, car payment/insurance etc. Therefore, the Court has no power (except in very limited circumstances) to consider your expenses. When you are reviewing the guideline calculation provided by the Family Support Bureau, make sure to carefully review each factor used by them to ensure they are correct. A change in any of these factors may significantly alter the amount of the guideline child support you are asked to pay.

Gross Income

This includes, but is not limited to salaries, commissions, wages (including overtime and bonuses, rental income, pensions, interest, worker's compensation benefits, unemployment insurance benefits, disability insurance benefits, and social security benefits. If your pay varies from month to month, the Court will probably use an average of your monthly income. The Court has the power, in its discretion, to consider the parent's earning capacity, instead of actual income, in the best interest of the children

Percentage of Time-Share

The guideline formula takes into account the approximate percentage of time each parent has primary physical responsibility for each minor child. In other words, if you are the non-custodial parent, this represents the percentage of visitation you have with your children outside the custodial parent's home.

Number of Children

The number of minor children from this relationship (until age 18 and graduated from high school or self-supporting, or until age 19 while still in high school).

Deductions

Your deductions include mandatory union dues, health insurance for you and any children you have legal obligation to support, FICA, SDI, proven necessary job-related expenses, and any Court-ordered child or spousal support payment or voluntary (and proven) child support payment made for a relationship other than this one.

Tax Liability

Your tax filing status: single, married filing jointly, married filing separately, or head of household: number of dependants claimed; and any other credits or deductions.

Financial Hardship

The Court may consider a number of justifiable expenses that have caused an extreme financial hardship. These expenses include extraordinary health care expenses and uninsured catastrophic losses. In addition, the Court may order a hardship deduction for the minimum basic living expenses of natural or adopted minor children (not stepchildren) who live with you and whom you are obligated to support.

Additional Child Support

The Court may order as additional child support a certain percentage (usually one half) of expenses related to the needs of the children. The Court will order additional support for childcare costs related to employment for reasonably necessary education and training for employment skills, and reasonable uninsured health care costs for the children. The Court has the discretion to also order additional support for the educational or other special needs of the children, and for travel expenses of visitation. The child support amount that the computer program yields does not automatically include this additional child support. The additional child support will appear as a separate amount, which the Court will then add to the basic child support amount to get the totally monthly support that will be ordered.

Health Insurance

The Court must order you provide or maintain health insurance for your children if it is available to you at no cost or at reasonable cost.

Date When Child Support Order Is Effective

When you reach an agreement (stipulation) with the Family Support Bureau for child support, or when the Court orders you to pay a certain amount, make sure you understand the date the child support payments will start. It is possible your child support payment will be made effective before your Court hearing. If that happens, you will owe the past due amount in addition to the monthly payments you will be making from the date of the hearing forward.

Modification of Child Support

In order to modify a child support order, you must show there has been a change of circumstances since the last order. If any of the factors described above change, you have the right to file a motion in Court to have your child support payment amount modified. It is up to you to ask the Court to modify the order. Simply contacting the Family Support Bureau to notify them of changed circumstances may not be enough. You can only modify the child support from the day you file your motion. You cannot modify the amount you owed prior to your motion. Before you file a motion to have your child support modified, you should make sure the changed circumstances would in fact result in a lower child support amount. You can go to the Office of the Family Law Facilitator for assistance in calculating the guideline child support in your case to make sure you should go to Court to modify the order.

Child Support Arrears and Interest on Arrears

What are Arrears?

"Arrears" means past due support. Arrears are created when a child support order is made and there have been periods of time (months and/or years) in which support payments were paid only partially or not at all.

For example, if the Court ordered you to pay $500.00 per month in child support effective January 1, 2001, and you did not make any payments for all of 1998, your arrears for 1998 would be $500.00 x 12 months, or $6,000.00. Likewise, let's say you made monthly payments of $100.00. Since the order was for $500.00 and you only paid $100.00, your arrears for 1998 would be $400.00 x 12 months, or $4,800.00.

Interest on Arrears

Section 685.020(b) of the California Code of Civil Procedure says interest on arrears accrues (collects) at a legal rate of 10% as each payment becomes due. This has been the law since January 1, 1984. Before January 1, 1984, the legal interest rate was 7%.

Why do I have arrears? I have been unemployed/earning less/in jail. "They" should have changed my child support order.

When a Court makes a child support order, it takes into account the circumstances at that given time. The order remains in place and continues to be owed unless one of the parents (or the DA Family Support Division, if involved in your case) requests the support order be modified (changed). At the hearing on the modification request, the Court needs to find a change in circumstances has taken place justifying a change in the child support order.

The earliest possible effective date for a modification of a child support order is usually the date that the parent requesting the change files the motion (the papers requesting a change in the order). California Family Code section 3603, 3601. Sometimes the Court will choose a later-in-time effective date for the modification, such as the date of service of the motion, or the date of the Court hearing.

The Court is without power to "retroactively modify" (change backwards in time) a support order.

This means the Court has no power to waive (forgive) arrears. The Court is also without power to waive the interest that has accrued on arrears.

For example, let's say the Court ordered you to pay $200.00 per month in child support, effective January 1, 1997. You paid for 12 months (through December 1997), but then on January 1, 1998, you became incarcerated or unemployed for the next year. If you file a motion requesting a support modification on January 1, 1999, the Court cannot modify the $2,400.00 in arrears ($200.00 x 12 months) that have accrued for 1998. The Court is also without power to modify the interest that has accrued on those arrears.

The only person who can excuse arrears and/or interest on arrears is the parent entitled to receive the support.

If the parent entitled to the support chooses, for whatever reason, to excuse part or all of the support arrears and/or interest on arrears you owe, a stipulation and order (a formal written agreement signed by both parents and then by the Judge) can be filed. However, for any "welfare reimbursement" support arrears, and/or interest, that is owed due to the other parent or child receiving welfare, (including foster care and group home) the support and interest thereon CANNOT be waived. The other parent, the child, the DA Family Support Division, and the Court are prevented from waiving welfare reimbursement arrears and the interest accrued.

What if I think the amount of arrears the DA Family Support Division is collecting is the wrong amount?

You can file a motion with the Court asking the Court to set the arrears. You will need to file papers comparing the DA's or the other parent's payment history records and arrears statement. It will be your job to (your burden of proof) to show the Court how the other parent or the DA's figures are wrong. You must include your own interest calculation on arrears.

The Court may have equitable power to forgive arrears if:

1.The child lived with you.

2.The Custodial Parent concealed (hid) the child.