RAISE OR LOWER
CHILD SUPPORT IN CALIFORNIA
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Modifiability Of Child
The "statewide uniform child support guideline" (Ca
Fam § 4050 et seq), child support orders are modifiable
"at any time as the court deems necessary." [Ca Fam
§ 3651(a); see also Ca Fam § 3651(d)] In other words,
a domestic relations judgment can never be considered a "final"
adjudication of the extent of the parents' obligation to support
their minor children.
Child support jurisdiction even continues after the custodial
(obligee) parent's death in favor of his or her successors in
interest. [Marriage of Drake (1997) 53 Cal.App.4th 1139, 1153,
62 Cal.Rptr.2d 466, 476]
Parents cannot, by agreement or stipulation, restrict the court's
authority to modify child support. Such agreements and stipulations
are per se unenforceable.
Basis For Modification
- "Change In Circumstances"
As a general rule, courts will not revise a child support order
unless there has been a "material change of circumstances."
This rule applies to any form of child support order--i.e.,
pendente lite and "permanent."
Exception - Change To Conform To Statewide Guidelines: However, by statute, child support orders predating
the Ca Fam § 4050 et seq. "statewide uniform child
support guideline" are per se modifiable when application
of the current formula and standards would yield a different
amount of support (whether higher or lower).
The guideline has been amended several times since July 1,
1992. These and any future amendments probably trigger the language
in the code allowing modifications to conform to current state
guidelines so that any child support order that does not conform
to the current guideline in effect at the time of the modification
proceeding would be "per se" modifiable.
Exception - Stipulation To Order Below State Guidelines:
Also if the parties stipulated to a child support order below
the statutory formula amount "no change of circumstances
need be demonstrated to obtain a modification of the child support
order to the applicable guideline level or above." [Ca
Fam § 4065(d)]
Sufficiency Of Changed
There are no rigid guidelines for judging whether circumstances
have sufficiently changed to warrant a child support modification.
So long as the statewide statutory formula support requirements
are met (Ca Fam § 4050 et seq.), the determination is made
on a case-by-case basis and may properly rest on fluctuations
in need or ability to pay. The ultimate decision lies within
the trial court's sound discretion and is reversible only for
abuse of discretion.
Changes In Visitation
Time With Children
A downward child support modification may be appropriate where
the amount of time the obligor parent has physical responsibility
for the children increases or decreases (whether by greater
visitation or otherwise) . . . on the theory that the obligor's
child care expenses rise with his or her increased timeshare
and the obligee experiences a concomitant child care savings
Increased Travel Expenses
Travel expenses for visitation" are one of the discretionary
items that may be added to statutory formula support "as
additional support for the children. [Ca Fam §§ 4061
& 4062(b)] Thus, an obligee parent who experiences increased
child-related travel expense because of visitation changes may
be entitled to a corresponding increase in child-support add-ons.
Changes In Ability To
A shift in either parent's financial position is not per se
a ground for modification. The court must examine both parties'
circumstances as a whole; and must also evaluate those circumstances
in light of the statutory factors which may properly be considered
in fixing child support.
Noncustodial Parent's Increased Wealth: However,
because children are entitled to share in both parents' standard
of living, the noncustodial (obligor) parent's enhanced wealth
often itself will be ground for increasing the child support
level. This is so notwithstanding the custodial (obligee) parent's
relative unchanged "poverty."
Statutory "Hardship Expenses": The
court has discretion to modify child support by allowing a deduction
from income (in the formula child support calculation) of a
parent who is suffering "extreme financial hardship"
resulting from (i) extraordinary health expenses, (ii) uninsured
catastrophic losses, or (iii) the birth or adoption of new children
from another marriage or relationship (deduction here is for
minimum basic living expenses of such children who are living
with the hardship parent). [Ca Fam §§ 4059(g), 4070-4072]
But the granting of a statutory hardship deduction is not automatic.
Even though the Code recognizes the circumstance as a "hardship,"
the court must look to the facts of each case and consider the
alleged "hardship family's" income as well as itspurported
expenses. What may cause a solid, middle-class family to experience
extreme financial hardship probably would have little (if any)
economic impact on a Donald Trump, J. Paul Getty, or Bill Gates.
Consideration Of "Earning Capacity" As Opposed
To Actual Earnings: The parents' actual earnings are
not necessarily controlling on the question of ability to pay.
"The court may, in its discretion, consider the earning
capacity of a parent in lieu of the parents' income, consistent
with the best interests of the children." [Ca Fam §
Thus, child support orders and modifications may be based on
earning capacity even in the absence of a showing the obligor
intentionally and deliberately sought to avoid family financial
responsibilities. The court has discretion to impute earnings
(based on earning capacity) to anunemployed or underemployed
parent, consistent with the children's best interests, where
the ability and opportunity to work (or otherwise earn) are
And a parent's earning capacity is not confined to income that
could be earned from working. In an appropriate case, a parent
may be charged with imputed earnings based on income-producing
or nonincome-producing assets.
Impact Of Obligations To Creditors: Child
support must be paid before the satisfaction of other creditor
obligations (Ca Fam § 4011). Therefore, an obligor generally
cannot obtain a reduction in court-ordered child support on
the ostensible premise that voluntary debt repayments have reduced
his or her ability to pay.
Income From Third Parties: A parent's "circumstances"
may change because a third party's income is contributed to
the parent's basic living expenses, in turn increasing the parent's
"net disposable income" available to pay child support.
However, except in a specified "extraordinary case"
that would otherwise result in "extreme and severe hardship"
to the child, courts cannot consider the income of either parent's
"subsequent spouse" or "nonmarital partner"
when "determining or modifying child support." [Ca
Fam § 4057.5] Thus, a motion to modify child support based
solely on the fact income from a parent's new spouse or nonmarital
partner has increased the parent's ability to pay must be denied
absent the requisite showing of extreme and severe hardship
to the child.
Passage Of Time As Changed
There is some legal authority that the mere passage of time
can be a changed circumstance warranting greater child support
. . . because of cost of living increases in the intervening
years and the fact it costs more to raise a child as the child
gets older. [See Marriage of Cheriton (2001) 92 Cal.App.4th
269, 300, 111 Cal.Rptr.2d 755, 779]
Simplified Procedure To
Determine Whether There Has Been A Change In Circumstances
There is a unique and inexpensive Family Code procedure under
which parties to a child, family or spousal support order can
ascertain whether a change of financial circumstances has occurred
before commencing support modification or termination proceedings
and without undertaking formal (and costly) discovery (Ca Fam
§ 3660 et seq.).
Up to once a year after entry of a marriage dissolution, legal
separation or paternity judgment providing for support, either
party may demand from the other party production of a current
income and expense declaration accompanied by the prior year's
federal and state personal income tax returns. [Ca Fam §§
3663, 3664, 3665] If the responding party does not comply within
35 days (or responds incompletely), the requesting party may
obtain "income and benefits" information from the
nonresponding party's employer. The nonresponding party is also
subject to sanctions in a subsequent modification or termination
proceeding. [Ca Fam §§ 3664(b)-(f), 3667]
Modification proceedings must ordinarily be commenced in the
court where the underlying order or judgment was rendered.
Since both parties were subject to the court's jurisdiction
in the underlying action, the party seeking modification may
proceed either by Order To Show Cause ("OSC") or notice
of motion (Ca Rules of Court Rule 5.118).
Financial information must be current as of the time of the
hearing. Where the only evidence in support of the modification
request is an outdated income and expense declaration, the court
properly acts within its discretion in denying the motion outright.
Absent an order shortening time all moving papers must be
served in sufficient time before the hearing to comply with
the Ca Civ Pro § 1005(b) minimum notice rules (ordinarily,
at least 16 court days before the hearing, but longer if service
is effected by mail, express mail, other overnight delivery
method or fax.).
The burden of proving a prima facie case for modification (e.g.,
usually changed circumstances and, in custody cases, that custody
change is in child's best interests) is on the party seeking
The parties must be prepared to present their positions fully
in their moving and opposing declarations. Whether testimonial
evidence will be allowed generally lies solely within the court's
The Legislature has recognized the importance of a low-cost,
simple and expeditious way to obtain a modification of support
orders that have become "inappropriate" based on the
parties' financial circumstances. The Legislature therefore
directed the Judicial Council to "adopt rules of court
and forms for a simplified method to modify support orders .
. . designed to be used by parents who are not represented by
counsel." [Ca Fam § 3680; see Ca Fam § 3680(a)(3)]
The application, opposition and hearing procedures are explained
in the FL-391 and FL-393 "Information Sheets". Basically, normal modification
procedures apply, and the usual forms and financial information
will be required. The only difference is that application is
made by the FL-390 Notice of Motion; and opposition is made
by the FL-392 Responsive Declaration). Proofs of service are
contained on the reverse sides of those forms.
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