Any modification of a child support order in California requires that an order to show cause or notice of motion be filed unless a stipulation and order is signed by both parties and filed with the Court.
The general rule in California is that a material change of circumstances must be shown before a child support order can be modified either upward or downward.
California law states that both parents of a minor child are equally responsible to support the minor child in California. “The father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” See Family Code § 3900. This rule applies to both original orders for child support and modifications.
The California Courts of Appeal have held that an order reducing child support payments can issue in cases where there is an increase in the amount of time the child spends in the obligor parent's custody such as increased visitation. This is allowable under the theory that all or part of the day-to-day needs of the minor child are being discharged directly by the obligor parent.
Case and statutory law in California both state that 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." Family Code § 4058(b).
This means that in the appropriate situation a California Court can consider the earning capacity of a parent instead of that parent’s actual income. Appropriate cases would be where the other parent is capable of working despite claiming to be unemployed or underemployed but refuses to work, or the income of the other parent has increased substantially since the date of the last support order. A deliberate attempt to avoid child support obligations is not required.
And the California Courts of Appeal and the California Supreme Court have held that the only restriction imposed by the California child support statutes is that consideration of earning capacity be consistent with the best interests of the minor child.
In one case decided by a California Court of Appeal the Court of Appeal found no abuse of discretion in refusing to change the monthly income figure of the wife to zero where the facts in the case clearly showed that she quit work upon remarrying but she presented no evidence of any inability to find replacement employment or that her loss of income was otherwise justifiable under the facts in that case.
In another California Court of Appeal case the Court found that the husband had the opportunity to work and imputed income to him on the grounds that he was an attorney who could apply his skills and training to produce income.
Parties considering requesting a modification of child support in California should be sure to include enough facts and evidence in their moving papers to show a material change of circumstances since the date of the last child support order.
Attorneys or parties in California who would like to view a portion of a sample points and authorities in support of an order to show cause to modify child support in California that is sold by the author can use the link shown below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
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