Ruben Divine, Author at Tustin Law Group, APC

How is Child Custody Enforced?

Posted on January 21, 2025 by Ruben Divine

Child custody is a general term used to address parents’ legal and/or physical custody of their child. Other terms with more specific definitions are used throughout the United States, and those terms will depend on your jurisdiction. Examples of legal terms include parenting time or allocation of parental responsibilities. Regardless of the legal term used in your state, we all understand that child custody most often refers to the legal and physical custody of your child. This is a very touchy subject and can become highly contentious during a divorce. Having an order in place is critical to ensure your child’s rights, your rights, and the other parent’s responsibilities are outlined, upheld, and enforced.

If you do not have a custody order in place in California, it is typically in your best interest to petition for one. Though parents might get along today and share custody in a way that mutually works, you never know what tomorrow will bring. A custody order will provide consistency and predictability much like a settlement in general litigation.

All too often, obtaining an order from the court for child custody is only the first part of the battle. If the other parent, or person that has visitation, does not honor the agreement, the custodial parent may have to take steps to have the court order enforced. While enforcement procedures differ by jurisdiction, the most typical method is by filing a motion with the court. This motion goes by different names, such as Motion to Enforce Custody and Visitation or Motion for Civil Contempt. The court will then schedule a hearing to find out why the order has not been upheld and decide the best way to proceed.

When the police are summoned to enforce a child custody order, they may or may not become involved. Absent a criminal act, such as kidnapping, police tend to favor not being involved.

If there is an emergency, you should request an emergency hearing with the court. Emergencies include situations where one parent refuses to allow the other parent to see the child even though it is in violation of the order.

It is always best to have an order in place that spells out who has custody, including when and where custody occurs. Absent a child custody order in California, enforcement is difficult. There’s no legal basis for the police to get involved unless a specific crime has occurred. The courts cannot do anything either. You must file a child custody petition and obtain an order.

When a parent fails to follow a child custody order, they could be held in contempt of court. You can file a motion with the court to have the other parent brought before the judge again. The judge will assess whether the order has been violated and what the response should be. Many times, it may result in a modification of the child custody order.

If you have concerns regarding the rights of your children and yourself, it is in your best interest to take steps to protect those rights. The first matter to be addressed is having an order entered that states in clear terms that you have custody of your child. If you are in fear that another party that has no right to your child may try to take your child from you, keep a certified copy of the order on your person, and give certified copies to appropriate parties. This would include your child’s school and the daycare your child attends.

Another wise action to take is to keep a detailed calendar of who has your child on any given day. Keep track of missed visitations and any other pertinent information.

Regardless of your particular situation, you should consult with an experienced attorney to assist in reviewing any current custody order, or to assist in the preparation of a custody order/agreement.

What Does Child Custody Mean and How Does it Work?

Child Custody

Posted on January 21, 2025 by Ruben Divine

Both parents have the right to custody of their child, and that’s typically the preference of the courts. The idea is a simple one: each child and parent has the right to develop their relationship. Barring any serious issues like abuse or neglect, child custody is a right both parents have.

When two parents are no longer together, one of the most important matters to be decided is who will have custody of their child. In most states, there are two different types of custody that the court must consider: legal custody and physical custody.

Legal custody is not related to whom the child lives with. Instead, the parent with legal custody has the legal right to make important life decisions for the child. For example, a parent with legal custody will decide where the child attends school and the type of healthcare they will receive. It is possible in some states for the parents to share legal custody.

Physical custody concerns where the child resides. It may be awarded solely to one parent, or it may be shared jointly between parents. Parents with joint custody will have a plan set in place that determines who has the child when.

When determining who to award child custody to, a court will consider what is in the best interest of the child. Some of the factors the court will look at are:

Who can provide a safe environment for the child
Any evidence of abuse
The child’s relationship with each parent

If a matter affects the child, the court will likely consider it when awarding custody.

Once child custody has been determined, unless one parent has sole custody, most jurisdictions request the parties enter into a parenting plan. A parenting plan lays out what is expected of each parent to provide the child with the physical and mental stability they need to prosper. It can address everything from where a child lives, to the religion they will be exposed to. A parent plan differs from a parent order in that a parent order is enforceable by the court. The parent plan is an agreement the parties reach together, often with the help of mediation.

When a court reviews a case and determines that a parent is unfit, it is likely it will award custody to another party, and the court may allow the unfit parent supervised visitation. The court may also order the unfit parent to undergo counseling and parenting classes if they want to continue to have a relationship with their child.

While it is not impossible in most jurisdictions for an unfit parent to later regain custody of their child, it is not an easy feat as they must prove to the court the issues that deemed them unfit have been completely resolved.

If you are facing a child custody issue, make certain your rights are protected by hiring a lawyer with experience in child custody disagreements.

How Long Does a Conservatorship Last?

Conservatorship and Guardianship

Posted on January 21, 2025 by Ruben Divine

A conservatorship is designed to essentially remain in place for the remainder of a person’s life.

Though there have been some modifications to the law, there hasn’t really been any modifications of the judges that decide these types of matters. The implications of this remain to be seen, but these changes are unlikely to affect most conservatorship actions because most actions do not involve a great deal of conflict—they simply involve a lot of red tape and court proceedings.

In any event, the vast majority of conservatorships continue until the conservatee’s death because most conservatees suffer from irreversible conditions.

It is rare that a person placed under a conservatorship recovers because the time that it takes to establish a conservatorship is longer than most recovery periods. While it’s possible for the person to recover after a conservatorship is established, it’s very unlikely.

In nearly all of conservatorship cases, the reason that the conservatorship was established was because the person was in such a state that they would not recover. This is true because of the nature of the world—even if you are temporarily incapacitated—bill collectors will often work with you or family to allow the world to keep turning. When it gets to the point that you are unable to manage your bills, however, it might require a conservator if you do not otherwise have an estate plan or a viable alternative to a conservatorship.

If you believe that either you or a loved one may be in need of a conservatorship, you should consult with experienced legal counsel to understand and assess the potential options. Conservatorship proceedings are expensive and intrusive, and the decision to initiate such proceedings should not be taken lightly.

Conservatorships Generally Eliminate Informal Estate Planning Mechanisms

Conservatorship and Guardianship

Posted on January 21, 2025 by Ruben Divine

One issue with conservatorships is that if you have informal estate planning mechanisms in place, these mechanisms are generally displaced because of how conservatorships operate.

Primarily, a conservator will take title to your accounts, which means your accounts will be closed, and they will be placed into a conservatorship account title in the name of your conservator, with reference to the conservatorship estate.

Any beneficiary designations you had just went away. While there may be claims by the designated beneficiaries in certain respects, it’s expensive and unlikely to ever be replaced as you intended.

For one thing, they would need to file some sort of lawsuit—whether that’s a petition seeking a new beneficiary designation in the conservatorship action, or some other type of lawsuit. While you are alive, their claim is merely speculative to receive anything because, in theory, you could outlive your money.

Assuming that you didn’t outlive your money, the longer that you do survive under a conservatorship, the more difficult it becomes for any claims to be made for your designated beneficiary because of the commingling of other conservatorship assets, the lack of ability to trace the funds to the original beneficiary designated account, and simply because your beneficiary may never know that they were a beneficiary under the account (i.e., financial institution may not have records back that far).

The Cost of a Conservatorship Can Be Substantial

Conservatorship and Guardianship

Posted on January 21, 2025 by Ruben Divine

In order to establish a conservatorship, it will likely cost you (the incapacitated person) tens of thousands of dollars in the first year. This is because the person seeking to assist you (the proposed conservator or other person) needs to hire an attorney, and if a conservator is appointed, they will have the ability to seek reimbursement for attorney’s fees incurred in having a conservator appointed for your benefit. Any costs incurred (filing fees, etc.) will also be paid out of your assets if a conservator is appointed.

But that’s generally not the only attorney involved in these proceedings. In most cases, the court will appoint an attorney for you (the incapacitated person), and that person will have a right to seek attorney’s fees paid from your assets, whether or not a conservator is ultimately appointed. This attorney is appointed to pursue your wishes in the matter—perhaps opposing the conservatorship.

In addition, the court will appoint a separate person, typically an attorney, to act as your Guardian ad Litem, which is a person that the court appoints to make a determination as to what is in your best interest, regardless of what you wish to occur. This person will also have a right to seek compensation from your assets, whether or not a conservator is ultimately appointed.

If a conservator is appointed, they will have a right to seek compensation for any time they spend assisting you, and they, too, will have an attorney that will also have their fees paid out of your assets.

The worst part about a conservatorship is that even if you did not need a conservator, or if you die prior to a conservator being appointed, your assets are still charged a substantial amount of money—yet you would receive no benefit.

Once a conservator is appointed, it does not end there. If you have a conservator of the person only (i.e., for medical decisions because you have no assets to be managed in a conservatorship), then there may be periodic requests for compensation to the court to the extent you have a source of assets to pay for such compensation. Other than this, there would be few other expenses because, in such a case, you are unlikely to have any other assets.

If you have a conservator of the estate appointed (for financial decisions), then after the first year, the conservator must prepare and file a formal accounting with the court, and every other year thereafter. This means that there are ongoing costs every year which bring little value to you, other than peace of mind that your assets have been managed properly—but these accountings are required by law.

If your expenses exceed your income, then the conservator will need to petition the court to liquidate your assets, thereby increasing the attorney’s fees and conservator compensation for obtaining such relief.

If these ongoing expenses were not bad enough, it is important to note that the conservator is also required to post a bond in an amount that exceeds the value of your assets—which is there to protect your assets in the event the conservator absconds with your assets—but the premium on this bond is paid out of the assets of your estate.

Unfortunately, many people initiate conservatorship proceedings without really understanding the cost, and people simply disregard the real value in having an estate plan in place.

Now, it is also important to understand that an estate plan will not preclude the appointment of a conservator—it merely acts as a vehicle to assist in avoiding the necessity of a conservator. We have had many cases where a person had an estate plan but, due to significant family conflict, the estate plan is simply disregarded (or set aside) to protect the incapacitated person.

There are additional measures that can be taken to avoid conflict—one of the most common is simply discussing your estate plan with your family members. Another is to appoint a neutral third party to serve in certain roles to minimize familial conflict. Depending on your specific situation, you might have additional or alternative options, but it is best to discuss those potential options with a licensed attorney to understand the risks and benefits of each course of action.

What is a Conservatorship, and Do I Need One?

Conservatorship and Guardianship

Posted on January 21, 2025 by Ruben Divine

In California, a conservatorship is a legal proceeding by which a court appoints a person (conservator) to manage the financial affairs (conservator of the estate) or medical affairs (conservator of the person) of a person (the conservatee) when that person is deemed unable to manage their financial or medical affairs.

These proceedings are established for many reasons, but it primarily arises when someone lacks capacity due to a medical condition. Even if you have a Power of Attorney or Advance Health. Care Directive, simply having these documents in place is not always enough to avoid a conservatorship if they are not drafted with sufficient safeguards.

Many times, conservatorship proceedings are initiated by unwitting family members seeking to protect you but have a misconception about how your estate plan was designed and lack an understanding of the cost and procedures of conservatorships. Generally speaking, conservatorships are more harmful to a family because of the litigation and costs involved.

Similar to Pandora’s Box, once a conservatorship proceeding is opened, it is very difficult to close. If you do not have an estate plan in place, it is extraordinarily difficult for a person to simply terminate the proceedings.

What is a Parenting Schedule and How Does it Work?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

Parenting schedules are required in most custody situations that go through the court system in California. Creating these schedules, however, can be a time-consuming process. You want a schedule that works for you and the other parent but especially for the child. You also want a schedule that proactively addresses any concerns you may have and accommodates the right amount of flexibility needed when co-parenting.

What Are the Most Common Types of Parenting Schedules in California?

It is ideal for every child to have two parents who care for them and are involved in their life. When the parents aren’t together, but both desire to have a relationship with their child, a number of different parenting schedules across the 50 states exist and can be utilized. Some of the most common are described below, but keep in mind not all plans are allowed in all jurisdictions. The latter, in part, is why – at a minimum – you should have a competent child custody lawyer in California review your parenting schedule and advise accordingly.

50/50 Parenting Schedule

A 50/50 parenting schedule is a way for both parents to spend an equal amount of time with the child. There are typically several plans that allow this equal split.

Alternating Weeks. Alternating weeks between parental homes; seven days with one parent, seven days with the other
Alternating Two Weeks. Alternating every two weeks between parental homes; 14 days with one parent, 14 days with the other
3-4-4-3. Three days with parent A, then four days with parent B, followed by four days with parent A, then three days with parent B

For these plans, you want to be sure it is convenient and consistent with the child’s needs, especially if they are in school. Too much back and forth can be stressful and interfere with educational or extracurricular activities.

60/40 Parenting Schedule

A 60/40 parenting plan is used when one parent has the child 60% of the time while the other has the child 40% of the time.

Typically, the child spends the first 4 days of the week with parent A, and the last 3 days of the week with parent B. This is an easy schedule to remember as each parent knows the days of the week they will have the child far in advance. (For example, they know that they will always have the child on Tuesdays.)

60/40 plans are beneficial when each parent wants to spend a significant amount of time with the child but they do not communicate well with the other parent. It is also convenient when the parents live close to one another.

70/30 Parenting Schedule

A 70/30 parenting plan allows one parent to have the child 70% of the time while the other has the child 30% of the time. There are several different ways this can be accomplished, including the following:

The child spends the week (Monday – Friday) with parent A, and the weekend (Saturday and Sunday) with parent B.
The child spends two consecutive weeks (14 days) with parent A and one week (7 days) with parent B.

The 70/30 parenting schedule works well when the parents do not live near one another, or when one parent is required to travel extensively for their job.

80/20 Parenting Schedule

An 80/20 parenting schedule is when one parent has the child 80% of the time while the other parent has the child 20% of the time. Common 80/20 parenting schedules include:

The child living with parent A but spending every other weekend with parent B
The child living with parent A, and spending every 2nd, 4th, and 5th weekend with parent B.

The 80/20 parenting schedule is a good plan when the child does not do well with having two different home bases, and when one parent is the primary caretaker while the other parent has a less active parenting role.

90/10 Parenting Schedule

A 90/10 schedule is when the child does not spend any overnight with one parent. Instead, they just visit them during the day. This is a good plan when only one parent is the physical caretaker of the child.

Summer Parenting Plan Schedules

For some parents, especially those with a 50/50 or 60/40 parenting schedule, they can keep the schedule the same during the summer with the exception of adding in dates or allocating certain weeks to each parent for vacation and other activities.

For others, especially those that live far away from one another, the child will spend the school year with one parent, and the summer with the other. It really depends on the circumstances of each situation, and the parents’ ability to get along with one another and agree on a schedule that works for both of them.

Holiday Parenting Plan Schedules

Holidays are generally treated differently than other days when a parenting schedule is created. Many parents choose to alternate holidays. For example, the child may spend Thanksgiving and Easter with parent A on even-numbered years, and Christmas and July 4th with parent B on even-numbered years. Then, on odd-numbered years, the holidays switch.

Other plans include:

Choosing Holidays. Parent A may feel that Thanksgiving is more important, while parent B may feel that Christmas is more important. When this is the case, the plan can be that the child spends every Thanksgiving with parent A, and every Christmas with parent B.
Splitting the Holiday Days. When the parents live close to one another, they may split all holidays in half, so that the child spends the morning with one parent and afternoon with the other.

Holiday and summer schedules can vary as much or as little as the parents would like. It honestly depends on preference and distance.

Special Circumstances and California Parenting Schedules

Special circumstances often call for teamwork and creative planning on the part of both parents. For example, when the parents live far away from one another but both want to be involved with their child, a more traditional 50/50 parenting plan will not work. Instead, they may be able to agree to something different, such as one of the following plans:

The child can spend all long weekends from school and the majority of summer break with one parent, and the rest of their time with the other parent.
For children that are not yet in school or attend school online, a long visit with one parent every couple of months may work.

The age of the child and their ability to travel long distances also has an effect on long-distance parenting schedules. Parenting plans when one parent is in the military also require thinking outside the box. Special issues such as deployment and frequent moves must be addressed.

How Much Spousal Support Am I Entitled To?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

If you are thinking about getting a divorce in California, the financial aspect of it may weigh heavily on your mind. No matter your income level, your financial situation can take a hit when you divorce. Spouses who didn’t work or worked less while married are in a harder position because they are financially dependent on the other spouse. Rather than allow the spouse to succumb to a lower standard of living or become a public charge, spousal support might be established.

Spousal support, spousal maintenance, and alimony are all terms used to describe a situation where one spouse pays another spouse a court-ordered payment for a certain amount of time during or after a divorce. In California, these payments are referred to as spousal support.

Spouses can agree on spousal support, but the end result must be fair. If you fail to agree, the spouse seeking support must file a formal notice with the court to request spousal support.

Spousal support can be temporary or permanent, the former of which is the norm. It can also be a lump-sum versus periodic monthly payments, the latter of which is the norm. Further, spousal support is not always in the form of money but can include a property transfer. Both lump-sum payments and property transfers may be non-modifiable once the order is issued. That means if circumstances change, the spousal support may not change. However, when it is in the form of periodic payments, spousal support is modifiable.

The circumstances of the spouses going through a divorce will determine both the amount and the duration of spousal support payments. Some of the most important factors that might influence spousal support include but are not limited to:

The length of the marriage
Age of the spouses
Mental or physical condition (health) of each spouse
The income disparity between the spouses
The likelihood that the financially-dependent spouse can secure a well-paying job
Professional skills or educational accomplishments of the dependent spouse
The couple’s standard of living during the marriage
Individual assets of each spouse (need and ability to pay)
How long it would take for the dependent spouse to become self-sufficient
Impact of tax laws
Whether there was a history of abuse during the marriage
Any children and if child support will be needed

As mentioned above, you and your spouse can determine the amount by an agreement without interference of the court, keeping in mind it must be fair.

An end date can also be determined by agreement between the spouses, but if not, the court will determine it. Other times or in lieu of an end date, spousal support may terminate if one of the following occurs:

The supported spouse remarries or cohabitates; or
Either spouse dies.

A significant event may occur, too, which prompts an end to spousal support. In that case, it’s determined on a case-by-case basis. Regardless of the reason to terminate spousal support, evidence may need to be provided to support the reason for termination.

Spousal support can be a highly contested aspect of any divorce. The spouse who may be ordered to pay spousal support may want to challenge it. If spousal support is contested, the final say on the matter will be the judge. It’s important to try at all costs to come to an agreement because the expense of hearings or a trial can take its toll on a divorcing couple.

Once a spousal support order is signed by a judge, it is enforceable. Most times, payment is set up through the employer and automatically sent to the supported spouse. Other times, the paying spouse pays the supported spouse directly. The arrangement of spousal support payments will be included in the order.

If the paying spouse fails to pay, they can be held in contempt of court and could face fines and penalties. The supported spouse can file a show-cause action with the court and a hearing will be set.

If you are entitled, or believe you may be entitled, to receive spousal support, you should consult with an experienced attorney to understand your rights and obligations, as well as your legal options.

What is Child Support?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

A child has the right to emotional and financial support from both parents. One parent should never have the financial burden alone to support the child. If both parents and the child do not live together, the court will order child support. There are many different scenarios that can make the process difficult, but with the help of an experienced child support lawyer in California, you can make sure that child support is ordered and that what is ordered is fair and in accordance with the law.

Child support is a way to ensure that both parents, although no longer in a relationship with one another, are financially responsible for their children while taking into consideration their ability to provide support. In most states and in most cases, child support lasts until children turn 18 years of age. There are exceptions made in cases where the child is still attending high school or is considered to be disabled.

When one parent, or custodian, is seeking child support, they may do so by pursuing the matter pro-se through the court system, by hiring an attorney to represent them, or by seeking assistance from their local child support office.

While each jurisdiction varies, there are certain factors most courts take into consideration when determining whether or not child support should be ordered, and if so, in what amount. Some of the most common include:

The gross income earned by each parent
The number of children each parent is responsible for supporting
How much time the children under the order spend with each parent
Childcare expenses
The cost of health insurance for the child
Whether or not the child suffers from any sort of disability that requires extra expenses
Whether or not either parent is voluntarily unemployed or underemployed

The court will also consider any factors that it considers relevant and impact the parties’ ability to pay child support.

When child support is established, a payment schedule is also established. When the parent ordered to pay support fails to do so, there are options available to the parent (or custodian) receiving the support. They are able to file a motion in the court to have the support order enforced, they may seek an attorney to help them, or they may seek the help of the local child support office.

In most jurisdictions, the parent under the order to pay will be able to explain to the court why they have not made their payments. The court will consider the matter and enter an order, which may include jail time for failure to pay. Even when jail time is ordered, the parent under the order can avoid it by paying a certain amount towards their debt as ordered by the court.

In some cases, there are remedies available to ensure the child support is paid, such as wage withholding and tax refund withholding. Another remedy is the suspension of the driver’s license of the person not making their payments as ordered.

If you are seeking child support establishment or enforcement, an attorney can help you locate the non-custodial parent and determine their ability to pay. If you are being ordered to pay child support, an attorney can help you ensure the amount of the order is fair. Child support orders are not set in stone and may be modified when the circumstances warrant a change.

How is Child Support Enforced?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

You have been awarded child support in California, now what? Or, you have been receiving child support but payments stopped, now what? So many parents depend on the financial support they receive through these court-ordered payments, so it is important that child support orders are enforced.

When Does Child Support in California Need to be Enforced?

Courts often enter orders that require one parent to pay another parent money for the care of a child they share. When an order is issued, enforcement is immediate. The order is sent to the appropriate agency, and an account is created for the issuance of child support. The government agency will usually enforce the child support order through wage garnishment. The money is directly taken from the supporting parent’s wages and automatically sent to the parent receiving support. Some states send checks while others deposit it directly into bank accounts or provide debit cards.

When wages are not garnished, payments become a little harder to enforce. Some states may allow the supporting parent to pay the other parent directly. When the supporting parent fails to pay as ordered, the parent receiving the money is often left struggling to provide for their child. It is in this situation where we often find clients needing to have an order for child support enforced.

There is one misconception, however, and that involves instances where no child support order exists. Parents sometimes make arrangements among themselves, outside the court system, where they agree that one parent will pay the other parent a certain amount of money. When this happens, there is generally no way for the parent receiving the support to have the agreement made between the parties enforced. Instead, they will need to have a support order entered by the court.

Ways Child Support is Enforced in California?

Child support can be enforced in multiple ways. As mentioned, in most jurisdictions, you likely do not have to take any action as the state or county in which you live will enforce the obligation on your behalf. Typically, this enforcement is through wage garnishment.

When wage garnishment is not available, there are other options. For example, the government agency can pursue tax offsets, can seize assets, or even deny a passport. In some states, it’s a crime not to pay child support, and the supporting parent could face arrest and subsequent charges. These are all attempts to deter failure to pay and to punish when they fail to pay.

To find out how your jurisdiction specifically goes about enforcing child support, especially when the supporting parent has failed to pay and are in arrears, contact our Orange County child support attorney.

How Is Child Support Enforced across State Borders?

Enforcing child support orders in other states has, in the past, created significant difficulties for parents not receiving the support they need. Because of this, the Uniform Interstate Family Support Act (UIFSA) was enacted to allow states to enforce child support orders entered by other states. UIFSA limits the ability of states to modify an existing child support order while allowing them to enforce that order.

How Can a Child Support Lawyer in California Help You Get Child Support?

To be clear, you do not need a lawyer to help you enforce a child support order. You can contact your local government agency where the child support case has been established. Many parents, however, find the whole process intimidating and so we are here to help. Often, we have already been providing legal representation–clients come to us for representation in a divorce or to help file a petition for child support and child custody.

As your child support lawyer, we provide thorough, competent representation. We ensure the implementation of the child support order. If a parent fails to pay, we can file a motion with the court to enforce payment. We can also try to contact and work with the supporting parent to persuade them to restart payments promptly. Also, when it benefits you and the child, we can file a motion to modify the child support. It is all very case-specific. The key is providing the right representation you need for your unique situation.

If you need a child support order enforced, take action today. It is in your child’s best interests. At Giammichele Law, APC, our family law lawyer will guide you through the process.

Can Child Support be Modified?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

When circumstances change, child support can also be changed to accommodate those changed circumstances. But the reasons for modification are limited, must be adequately proven, and must be approved by the court with a new child support order issued to replace the original one. That all takes resources, like time and knowledge of this specific area of the law.

Child support is for the child, and because of that, it is almost always modifiable (with some restrictions depending on the jurisdiction). A modification can be made based on the request of either party, and the support may be increased or decreased depending on the circumstances. Parties may agree among themselves to modify a support order. If they cannot agree, the matter will be heard by a judge who will decide whether or not to modify the order.

Modifications to child support may be temporary or permanent. Temporary orders are typical in cases where an emergency arises. For example, if the custodial parent becomes injured and the non-custodial parent assumes care of the child while they recover, support may be suspended for the period of time the child is with the non-custodial parent.

Factors Considered for Child Support Modification

Child support orders are typically modified when there has been a change in circumstances by either party or the child. Courts will consider many different factors when determining if a support order should be modified. Common factors are described below.

Emancipation

When one or more children subject to the order have reached the age of emancipation, the order may be modified to remove them and order support only for those children still under the age of 18.

Disability

If any of the parties become disabled, the court may consider modifying the support amount. This includes any special needs the children under the order may develop.

Change in Income

If either of the parties becomes unemployed through no fault of their own, the court may consider the reduction in income as a reason to modify the support order. On the other hand, if either of the parties has an increase in gross income, the court may consider that as well.

Additional Children

When either of the parties has another child, the court may use this information to modify child support.

How are Changes Made to Child Support?

Either party may file a motion with the court to have the matter of child support modification heard by a judge. They also have the option of hiring an attorney to help with a modification, or they may seek the services of their local child support office.

The parties may agree to modify the support, but keep in mind that the original order is still in effect until a new order is entered. This means that even if the parties come to an agreement outside of court, that agreement must go through the court system to become enforceable.

To modify child support, an already existing court order must be changed. This can be a complicated process for someone unfamiliar with the court system. An experienced family law attorney will know how to have the child support modified and can advise you if the modification you are seeking is feasible.

In cases where both parties mutually agree to the modification, a family law lawyer can make sure the modification is fair given the changed circumstances. Ultimately, it is your choice but you want to keep in mind that it is your child’s well-being at stake. Any changes to child support, whether it’s increased or decreased, can alter your child’s experience and ability to continue to develop strong bonds with both parents.

We understand the importance of child support but we also know that some circumstances demand modifications. Our child support lawyer at Giammichele Law, APC, will guide you through the process so that mistakes are not made and your child continues to benefit regardless of the modification.

What Happens if Someone Fails to Pay Child Support?

Spousal and Child Support

Posted on January 21, 2025 by Ruben Divine

Once a court orders child support, the parent is required by law to pay it. When a parent stops paying it, there are consequences. Of course, many reasons exist why a parent may stop, but if it is because of a substantial change in circumstances, that parent should properly go through the courts to request a modification of child support.

When a Parent Fails to Pay Child Support in California

When a parent fails to pay child support, there may be a reason for it. Loss of income, however, is not a valid reason. That said, if the non-custodial parent does lose their job, they can file a motion to modify the child support order.

Many times, a court does not initially order the child support to be garnished from the parent’s wages. So, the parent just stops paying. Other times, the non-custodial parent’s wages are garnished, but the parent quicks the job and finds another job without telling anyone and then stops paying child support.

Whatever the situation is, when a parent fails to pay child support, that can be stressful on the other parent––especially when they depend on the money for caring for the child. Child support can be used for things like:

Costs to maintain the home (e.g., paying utilities)
Food
Clothing
Transportation
Public school education expenses
Entertainment for the child

When child support payments stop suddenly and aren’t paid for any length of time, that can put a serious financial burden on the custodial parent.

How to Respond to a Parent’s Failure to Pay Child Support

How to respond depends on the circumstances of each individual case. Much of it has to do with whether or not a child support order was ever filed.

No Child Support Order

Sometimes, parents come to an agreement about child support. The non-custodial parent will agree to pay a certain amount each month. They come to this agreement with the involvement of the courts, and so a court order is never filed. When the parent fails to pay it, you often do not have a way to make the non-custodial parent pay. A court cannot enforce an order that does not exist. That’s why you always want to go through the courts for child support, child custody, and spousal support––it is the only way to protect yourself and your child. Your best bet is to talk to the other parent and try to come to an agreement. If that fails, you should contact a child support lawyer in State to file a petition with the court for child support.

Court Order Issued

If you do have a court order, the starting point can still be the same: talk to the other parent and find out what has happened and come up with a plan. If that does not work, contact a lawyer. Some states have a time frame before it considers child support payments as late, and our child support attorney will advise you regarding it as well as guiding you through the process to enforce the child support order, among other potential remedies.

Typically, a notice is sent to the non-paying parent first. The notice explains the child support enforcement process and provides a timeline to comply with the notice.

Interstate Issues

If the non-paying parent lives in another state, the Uniform Interstate Family Support Act, a federal law, allows the custodial parent to collect child support across state lines. Child support orders are enforceable by the state where the order was originally issued––this is known as continuing jurisdiction. In fact, even if the custodial parent moves with the child outside the state where the original child support order was issued, the same state has jurisdiction. Likewise, if the non-paying parent needs to modify child support, the laws of the original state will apply.

Possible Consequences for Failure to Pay Child Support in California

Co-parenting is hard enough when everyone plays by the rules, but when one parent stops, it can be frustrating. The so-called deadbeat parent is considered to be “in arrears” when they fail to pay child support, and the support owed is called “arrearages.”

The Child Support Enforcement Act of 1984 is federal law authorizing district and state attorneys the right to collect arrearages and to impose penalties on the non-paying parent. The penalties may include:

Garnishing wages
Intercepting unemployment insurance
Intercepting tax return
Suspending driver’s license
Suspending a professional license
Placing a lien on the home or other property
Freezing bank accounts
Filing a civil contempt order, which could result in jail time or a diversion program

Can a Parent in California Stop Visitation if the Other Parent Fails to Pay Support?

Custody and visitation rights are completely separate from child support. One parent cannot prevent a child from visiting with the non-paying parent on the ground of failure to pay child support. Keeping a child from the non-paying parent can create legal problems for the custodial parent.

At Giammichele Law, APC, our child support lawyer wants what is in the best interest of the child. That means child support should be paid. If the parent cannot afford it, the parent should go through the proper process to request a modification.