When going through a divorce with minor children or determining paternity, one of the many decisions you will need to make is how much time each parent will spend with the minor children.
It is important to note that the amount of time spent with the children can also affect child support.
The goal of any agreement affecting children should be to protect the children’s best interest.
However, due to the emotional nature and financial implications of custody and visitation, many parents struggle to reach an agreement.
In the event parents are unable to find an agreeable solution the Court will intervene and create child custody and visitation orders based on several factors, including the children’s best interest.
Once the Court determines child custody and visitation, it will then use guidelines dictated by statutes and a child support worksheet to determine which spouse owes the other child support.
Determining Child Support, Custody, And Visitation
Child Support
In California, both parents are financially responsible for minor children. However, child support can be ordered to help provide for the children’s housing, clothing, food, extracurricular activities, and other needs.
Child support is based on several factors including each parent’s gross income, mandatory deductions, tax deductions, amounts paid for healthcare, time spent with each parent and more.
Most often, the higher-earning parent will pay child support as they have more disposable income. For families who have 50/50 or close to equal timeshare with the children, the parent who claims the minor children as dependents could be ordered to pay the other parent support.
With so many factors and variables in determining support, it is important to speak with a professional to review all available options and develop the best child support agreement for you and your children.
Imputing Income
If you or the other parent is unemployed or underemployed, the Court can still order child support. In either situation, the Court will review employment records and education history to determine if gainful employment is feasible and determine what their earning capacity may be.
The Court may also consider other factors, including the length of time you have been out of work and the current state of the job market.
If the Court finds one parent is underemployed or willfully not working, the Court could assign income to that parent based on previous salary or current earning capabilities determined by work or educational experience.
The assignment of income, also known as imputing income, can result in Court-ordered child support.
If a parent fails to meet their financial obligation and does not pay child support as ordered, arrears will accrue, and the parent could face additional penalties.
State Disbursement Unit (SDU)
In the past, child support was paid directly to the receiving parent. When a child support order dictated automatic deductions, the paying parent’s (payor’s) employer would withhold the amount ordered and send it directly to the other parent.
However, in 1996 the federal government passed the Personal Responsibility and Work Reconciliation Act, requiring states to create a centralized location where parents pay child support. The creation of State Disbursement Units facilitated payment by collecting child support and distributing to the receiving parent.
When a child support order utilizes SDUs to facilitate payment through employers, payors can have up to 50 percent of their wages deducted.
In addition to facilitating payment, the 1996 Act changed how payment was distributed if a payor had more than one child support order.
Prior to the implementation of the SDUs, child support orders were prioritized by date. For instance, if a payor had orders to pay child support for children from a previous relationship and for the most recent relationship, and the amount ordered for the first relationship more than 50 percent of their income, the first family would get the full amount while the second family would receive partial payment or nothing.
After 1996, a paying parent’s child support amount can change based upon how much the payor parent earns or if there are other child support orders or arrearages are owed by the payor parent.
The SDUs can adjust the distribution of child support to ensure all children receive support. This can result in a reduction of child support received if the amount owed for all orders exceed 50 percent of the payor’s income.
However, the original amount ordered is still due and arrearages will build up unless the paying parent pays the difference directly to the SDU.
Child Custody and Visitation
California recognizes two types of custody: legal custody and physical custody. Legal custody refers to the ability to make decisions that affect the child’s health, welfare, and safety. Legal decisions include what doctors the child sees, what school the child attends, participation in religious activities, when the child can get a driver’s license, and more.
If one parent has sole legal custody, they are not obligated to consult the other parent when making decisions.
However, if parents have joint legal custody, they will both be able to make decisions. Ideally, both parents would communicate and agree on any decisions that affect their children.
Physical custody refers to the time spent with each parent and where the child resides. Joint physical custody, when children live with both parents, is the most common arrangement and the goal of California Courts.
However, it is not the best solution for all families, especially if domestic or substance abuse is an issue. If one parent has primary or sole custody, the other “non-custodial” parent has visitation.
Visitation schedules can vary depending on the relationship between parents and their children and work or school schedules. Common visitation schedules are unsupervised visits every other weekend, bi-weekly visits, alternating major holidays, or supervised visits once a week.
It is highly suggested that both parents work together to create a parenting plan detailing visitation, pick up/drop off times and more. If you are unable to reach an agreement, a family law attorney can help you create a parenting plan that not only benefits the children but considers the parents’ schedules. In the event, you are unable to come to an agreement the Court can hear your concerns and create custody and visitation orders.
However, court orders will dictate the amount of time each parent spends with the children, which can result in orders that neither you nor the other parent agree with and have financial ramifications for many years.
Custody Disagreements
In some cases, the parents may not be able to come to a custody agreement. Regardless of how you feel about your spouse, you should not bring your children into the argument.
Nor should you try to dissuade your children from seeing the other parent. The Courts will consider this when making a custody decision.
In most cases, the Court will not let a child testify as to which parent the child wishes to stay with as it is not fair to make the child choose.
When determining custody, the Court will review several factors such as the amount of time each parent spends with the children, domestic violence issues, substance abuse, involvement in educational or extracurricular activities, and general care.
Child Custody Evaluations
In some situations, the Court may order a child custody evaluation to help resolve a custody dispute. If ordered, the court can appoint an evaluator, or the parents can choose a private evaluator.
In either situation, both parties are responsible for the cost of the evaluator. The evaluator’s role is not to treat patients, but to provide an objective evaluation with informed opinions to help the Court determine the most appropriate custody outcome. The evaluator will conduct an investigation and interviews to decide which parent can provide the best situation for their children.
Evaluators weigh several factors to make their decision, including reviewing interactions between parents and their children, if the parents allow contact or visits with the other parent, and how the children behave in front of each parent.
Spoiling a child will not get you extra points! Once the evaluator has completed their investigation, they will submit their opinion to the Court for consideration.
An Attorney for the Child
In addition to a child custody evaluation, or in place of an evaluation, the Court may appoint an attorney for the child, referred to as Minor’s Counsel.
The role of Minor’s Counsel is to protect and advocate for the child’s best interest. As with the evaluator, both parties share in the cost of the child’s attorney. While the Minor’s Counsel generally has wide discretion in their investigation, it often involves multiple interviews with the children, and sometimes the parents.
Upon conclusion of their findings, Minor’s Counsel will present their recommendation and the children’s wishes to the Court for consideration when creating orders.
Following Court Orders
Parents who fail to follow court orders can be in contempt of the Court, resulting in fines or worse.
Parents of children who refuse to visit the other parent according to their visitation orders can also be held in contempt and face financial fines or even jail.
However, the success of contempt charges depends on several factors, including the child’s age and the concept of parental control. If your children are refusing to see their other parent, it is imperative you contact a family law attorney as soon as possible.
An experienced attorney can listen to your situation, advise the proper course of action to protect parental rights, and against contempt charges.
The Best Outcome
Even if you and your spouse cannot get along, it is better if you are able to create a parenting plan with the help of your attorneys.
The focus of any agreement should always be protecting the best interest of your children.
Consistent, cordial communication with your co-parent can help you and your children transition to the new family dynamic.
Additionally, discussing decisions surrounding the children’s health, safety, and welfare together can help avoid the stress of costly court appearances. In the event an agreement can’t be reached, an experienced family law attorney can help you protect your children and your parental rights.
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