As promised, here is the second of my two posts on modification of child support orders. So, you’ve read the previous post on when you can modify a child support order. The next question is naturally – how?
Generally, a proceeding to modify a child support order must be made in the court where the original order was made. (This makes sense: both parties were subject to the court’s jurisdiction during the prior proceeding.) The party seeking to modify the child support order can do so through either an Order to Show Cause or a noticed motion.
No matter which method is used, all financial information must be current. Thankfully, the California Family Code provides an easy way for parties to get the other side’s financial information before even starting a support modification proceeding, and without having to go through formal (and potentially costly) discovery. Up to once a year after a court enters an order for dissolution of a marriage, legal separation or a paternity judgment providing for support, either party may demand that the other party produce current a current income and expense declaration (including the prior year’s federal and state personal income tax returns.) (See California Family Code §§ 3663, 3664, 3665.)
The burden of proving that a case for modification of child support is on the party seeking modification. (For example, if you are claiming that your income has been significantly reduced since the court ordered child support, the burden is on you to prove that your income has been reduced and by how much, etc.) At its discretion, the court may allow testimony, but generally speaking, each party must present its position and its evidence in writing.
I have received a few emails about how to change a child support order. To answer some of these questions, I am dedicating the next two blog posts to modification of child support orders.
While an initial child support order may make sense at the time it is ordered, parents’ circumstances change over time. Often, one or both parents would like to modify the child support order. California family law states that child support orders are modifiable “at any time as the court deems necessary.” As a general rule, courts will not revise a child support order unless there has been a “material change of circumstances.” But, what constitutes a material change in circumstances? Here are some examples:
- Changes in Parents’ Finances. A shift in either parent’s financial position is not necessarily enough for a child support modification. The court must examine both parties’ circumstances as a whole; and must also evaluate those circumstances in light of the statutory factors considered in fixing child support. If you or your former spouse have had a change in income or other financial situation, consider consulting a family law attorney to determine whether a child support modification could be beneficial.
- Percentage of Time Spent with Each Parent. The child support guidelines take into account how much time a child spends with each parent. Therefore, if this percentage changes, the amount of child support will also change.
- Hardship expenses. The court has discretion to modify a child support order by considering a deduction from income in the child support guideline calculation for a parent who is suffering from “extreme financial hardship” resulting from extraordinary health expenses, uninsured catastrophic loss, or the birth or adoption of new children (from another marriage or relationship.) The granting of the statutory hardship deduction is not automatic. The court must look into the facts of each case in determining how much, if any, deduction should be taken.
One other situation to keep in mind: if parents initially stipulated to a child support order below the statutory formula amount, no change of circumstances need to be demonstrated in order to obtain a modification of the child support to the applicable guideline level. The way I explain this is that child support is the right of the child – a parent can not contract it away.
Finally, parents cannot by agreement restrict the court’s authority to modify child support. A court will not enforce that agreement.
If a child’s parents are not married at the time of its birth, establishing “parentage” indicates who the legal parents of the child are. (If the parents are married when the child is born, California family law considers the husband to be the father of the child.) Parents who are not married when a child is born can sign a Voluntary Declaration of Paternity before they leave the hospital, or after. This affects the child’s birth certificate (i.e. whether a father will be named) and establishes parentage for legal purposes. When people who are not married can’t agree about parentage, the court can order genetic testing.
For same sex couples, since January 1, 2005, if parents are registered domestic partners when a child is born, the law assumes that the domestic partners are the child’s parents. However, this law is new and unsettled, same sex parents should get legal advice to make sure that the parentage is clear. Depending on a family’s circumstances, a second parent adoption may be best.
Once a person is established as a legal parent of a child, that person must support the child. It is a crime for a legal parent to fail to support his or her child. A legal parent also has the right to get custody and visitation rights related to the child, barring certain circumstances (for example, abuse.)
Usually a child’s parentage must be established before the court will grant child support or custody and visitation orders. For unmarried parents, a parentage action is often the first step to pursuing child support and visitation orders.
