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In the course of our proactive of family law in the Los Angeles area, we have encountered numerous questions, from various clients, pertaining to the issues of child custody and child support upon the separation of parents, whether in the context of divorce, legal separation, or paternity actions.
In general, both parents are responsible for the welfare of children who are under the age of eighteen. However, where the child resides and which parent makes decisions regarding that child's upbringing is dependent on the agreement of the parents or a court order. There are two types of custody: legal custody and physical custody. Legal custody refers to the ability to make decisions concerning the health, education and welfare of a minor child. Physical custody refers to the physical living arrangement of a child. If the child resides with one parent and is under that parent's supervision for most of the time, that parent is deemed to have physical custody, subject to visitations by the other parent. However, if the child resides for significant amounts of time with both parents in their respective homes, both parents are deemed to have physical custody. There can be a variety of custody arrangements upon separation of the parents. For example, parents can share legal custody of a child, whereby both participate equally in the important decisions in the child's life, and those parents can share physical custody, where the child's resides 60% of the time with one parent, and 40% of the time with another.
Upon commencement of a court action, the parents can agree to any custody arrangement with respect to their children. An agreement avoids forcing a judge who is unfamiliar with the circumstances of the parties and family relations of a particular family to render a custody opinion. Reaching an amicable agreement regarding custody is best for the entire family. However, if the parties cannot mutually agree with respect to custody, such matters are submitted to the family law court, where a judge decides what is in the best interests of the child.
In California, the courts do not give a preference to either parent with respect to awarding custody. Custody is awarded according to the best interests of the child. For example, a woman is not presumed to be the best parent, and thus, will not automatically be awarded custody solely based upon her sex. The court will award custody to any person who is most suitable and able to provide proper care for the child. The court can also consider the custody preference of a child if the child is old enough to demonstrate the ability to make mature decisions.
Upon divorce or separation of the parents, the custodial parent has the right to request that the other parent pay child support. The custodial parent is the parent with whom the child resides most of the time. However, even if the child resides an equal amount of time with each parent, the parent with the lower income may be entitled to child support payable by the higher earning parent.
In the state of California, child support is based upon a formula which has been established by the Legislature of the state. This formula is largely based upon the respective incomes of the parents, the amount of time which the child spends with the non-custodial parent, the cost of child care, and certain other expenses, such as health insurance, itemized deductions, other children living with either parent, etc.. The income of a party is determined by taking into account any amount received from any of the following sources: employment, earnings from a business or investment, interest received, unemployment and disability benefits, and welfare. The amount of time which a child spends with the non-custodial parent is represented in the child support formula by a percent. The amount of child support which must be paid fluctuates based upon this percentage. The more time the non-custodial parent spends with the child, the less is the child support obligation. This is because the formula presumes that by spending more time with the child, a parent pays for more of the child's expenses directly, and thus, that parent should pay a lesser amount of child support.
In addition to base child support, the parents must also share the child care expense incurred by an employed custodial parent as well as medical expenses of the child, with the allocation to be determined based upon the parties' respective incomes.
Irrespective of the child support figure that is produced by the child support formula, the parties can agree to any other child support amount to be paid to the custodial parent. The agreed upon amount can be greater or lesser than the figure produced by the formula. The only exception to this rule is that if the custodial parent is receiving public assistance, the parties cannot agree to an amount that is lower than the child support figure produced by the formula.
If the non-custodial parent is employed, the custodial parent will be able to receive the child support payments directly from such employer, via a wage garnishment, rather than relying on the non-custodial parent to make such payments on time. If the custodial parent is receiving public assistance, the county will commence action against the non-custodial parent and the child support ordered by the court will be paid to the county.
Any child support order, judgment, or agreement which is currently in effect can be modified at any time by either parent upon a showing of a change of circumstances since the date of the order, judgment, or agreement. Some examples of a change of circumstances are: increase/decrease in either parent's income, any change in the visitation schedule, and the birth of another child to either parent. On the other hand, income of a new spouse of either parent is not considered a change of circumstance to merit a modification in the child support order.
The Child Support Services Department (DCSS) for each county in the State of California is involved in collecting child support when the custodial parent receives public aid for the child. DCSS will become involved in enforcing a non-custodial parent's obligation to pay monthly child support for a minor child in cases where the custodial parent receives public aid, as well as in cases where the custodial parent is employed and self-supporting but requests DCSS's help in securing an order for payment of child support by the non-custodial parent. It is the obligation of the non-custodial parent to support a minor child until the age of 18 or graduation from high school, which ever is later. This obligation will be enforced by the DCSS on behalf of the custodial parent. If the custodial parent applies for public aid, s/he assigns the right to collect child support to the County. However, if the custodial parent is self-supporting, s/he is entitled to receive the child support payments directly from the non-custodial parent. In addition to payment of monthly child support for the minor child, if the custodial parent has received public benefits in the past, the County will seek reimbursement for child support arrears because public aid was provided to the custodial parent for the minor child who should have been supported, but was not, by the non-custodial parent.
Rozanna M. Velen and Marina Korol are attorneys who specialize in family law. They are both Certified Family Law Specialists, certified by the California State Bar. They handle all aspects of family law in the County of Los Angeles. For more information you can visit them at Koral and Velen
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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