Recently in Child Support Category

Can a Child Support Obligation be Avoided by Filing for Bankruptcy?

March 28, 2014

child-support-obligation.jpgBeing awarded child support is very important for financial stability of the child support recipient and his/her children. Thus, the possibility of not receiving the child support that is owed can be detrimental. One question often in the minds of child support recipients is whether the payor spouse can avoid paying for child support by filing for bankruptcy.

Luckily, the Bankruptcy Code is designed to attempt to protect the rights of the former spouse to collect child support due to him or her. Congress apparently realized that child support debt is too important and thus should not be able to be discharged in bankruptcy proceedings. Typically when a debtor files for bankruptcy an automatic stay comes into effect which halts creditors from collecting on their debts from the debtor. However, this automatic stay does not apply to enforcement of the collection of child support. The spouse who receives the child support doesn't even have to file any proof of claim or objection to the bankruptcy court in order to enforce his or her right to receive the child support. Rather, an existing order to pay child support debts remains in effect and will continue to accrue during and even after the bankruptcy case is completed. As a result, a former spouse that files bankruptcy cannot avoid paying child support.

gavel-bankruptcy-child-support.jpgHowever, it is important to note that past due child support that was owed as of the date of filing for bankruptcy might not be paid immediately. The automatic stay will often prevent this issue from being addressed until the automatic stay is lifted, especially if there are many credits in line.

Although child support can be extremely burdensome on the payor, filing for bankruptcy is not an effective means of eliminating the financial obligation. A better forum to reduce child support payments is the family law court, if appropriate factors apply of course. However, filing for bankruptcy might help reduce other unsecure debts such that child support obligations may be easier to afford for the payor spouse.

Another important note is that if you are the recipient of child support and you file for bankruptcy, the child support payments you receive are exempt from bankruptcy proceedings, meaning that those payments cannot be used to pay creditors.

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Free Speech Restrictions Imposed by Family Court

March 25, 2014

Steve-Nash-divorce.jpgThose born and raised in the United States tend to have the understanding that they are free to say anything they wish behind the protections of the First Amendment. However, courts have put a number of restrictions on free speech such as prohibitions against defamation, obscenity, and harassment. In a recent family law case involving basketball star Steve Nash, family courts placed another restriction on the First Amendment. In the Nash case, the Arizona Court of Appeals placed a muzzle on social media communications in family law proceedings.

In nearly every child custody and/or visitation order the judge (or the parties through agreement) will include the following language:

Neither parent shall make negative statements about the other in the presence or hearing of the children or question the children about the other parent. The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them. The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order.

Not surprisingly, this language was included in the Nash joint custody agreement. Following the issuance of this standard admonition, Nash's ex-wife, Alejandra Amarilla, was alleged to have made disparaging remarks about him through her social media account, Twitter. As a result, Nash petitioned the court to intervene arguing that his former spouse was violating the non-disparaging clause. Amarilla defended her actions citing the First Amendment's freedom of speech clause in support of her case. The First Amendment has frequently been expanded to include "speech" in the form of electronic communication.

In the Nash case, the court held that Ms. Amarilla's conduct was not protected by the First Amendment and made an order prohibiting both parties from making disparaging comments about each other on social media sites. The court based its decision on the fact that Steve Nash is a highly public figure and therefore the comments made by his former wife were likely to reach their children. The court also noted that social media comments or postings cannot be adequately controlled or maintained to prevent exposure of improper conduct to the children. Ms. Amarilla appealed the trial court's ruling and the Arizona Court of Appeals determined that the trial court did not abuse its discretion and upheld the earlier ruling.

Since the Nash case was recently decided, its effect on other family law matters is unknown. However, a good argument exists for the position that the Nash case is inapplicable in ordinary divorce matters because the parties' social media sites are not as prolific as those of celebrities.

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Consequences for False Allegations of Child Abuse

March 21, 2014

In family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which stand to deter litigation tactics involving false allegations of abuse by providing the following remedies to the falsely accused.

dollar-sign.jpgSanctions: Family Code section 3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party's attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring their claim for sanctions within a reasonable time of their exoneration.

Supervised Visitation or Limited Custody/Visitation:
Family Code section 3027.5 provides that the court may order supervised visitation or limit a parent's time with the child if the court finds that that parent made knowingly false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent's lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child's health, safety, and welfare balanced against the child's interest to have frequent and continuing contact with both parents.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent's motion for reconsideration of such an order must be granted under these circumstances.

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Should Jail Time be a Last Resort for Failure to Pay Child Support?

February 26, 2014

As originally reported by TMZ, Jermaine Jackson, well known singer and member of The Jackson 5, may have fallen behind in child support payments but it appears he may have taken care of his arrears after all. TMZ reported that Jackson was falling farther and farther behind on the $3,000 per month child support that he has been ordered to pay to Alejandra Jackson for their 17-year-old son, Jafaar, and 13-year-old son, Jermajesty. He also reportedly had $12,000 in child support arrears that were owed, of which he had allegedly only paid $85. TMZ also reported that L.A. County Child Support Services Department had filed papers asking the court to hold Jackson in contempt, which could have ended up landing him in jail.

Child Playing in FieldBut is jail really the best answer for parents who have been obligated to pay child support, but who are failing to pay? Perhaps there are some legitimate reasons why jail time should be the very last resort. Courts seem to agree. It is much more common for a court to order a form of interception of the income of the person who owes child support (i.e. wage garnishments, taking tax refunds, etc.), revoke his or her license, or even impose fines before sending the person behind bars. The reason courts are more inclined to do this is because they are focused on getting the money to the children rather than punishing the offender. After all, the Court's ultimate goal is to promote what is in the best interests of the children by fostering the relationship between the children and the parents and by making sure that the children's needs are taken care of.

The purpose of jail time for parents who are delinquent on child support (and who are found to be in contempt of court) is to attempt to coerce him or her into paying the child support that has been ordered. However, if the person who is behind on child support payments gets locked up behind bars then he or she has less chance of earning the income necessary to pay the child support. Also, jail time will likely just further alienate him or her from the children.

Thus, time behind bars for failure to pay child support seems like it would just end up causing more detriment than benefit, especially to the children involved. Since the Court's goal is to protect the children, it makes sense that jail time should be a last resort in these situations. As for Jackson, it appears that he has made amends in some way, though, as the father and his two sons were spotted out together in Los Angeles in November 2013 - just about a month after his potential legal troubles broke news.

If you are considering a divorce from your spouse or have questions regarding the enforcement of child support orders, please contact our experienced attorneys.

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Can a Non-Biological Father Really Be on the Hook for Child Support?

February 4, 2014

Non-Biological FatherAfter five years of marriage, famous rapper and producer Timbaland is on the road to divorce according to TMZ. His wife, Monique Mosley, is apparently requesting child support not only for their five-year-old daughter but also for Mosley's ten-year-old child from a previous relationship. Mosley believes that her request is fair because she alleges that Timbaland publicly and privately proclaimed the child as his own. Although it may seem crazy to make a non-biological father fork over money for a kid that isn't even his, we sometimes come across clients who want to know if it is actually a possibility. Although the responsibility to support a non-biological child would typically end upon divorce from the child's mother, a non-bioloigcal father may be ordered to pay child support based on his behavior, rather than his legal status. In other words, the non-biological father may be liable for child support if he holds himself out to the child as the child's parent and the child believes him to be his father.

For example, in the case Clevenger v. Clevenger (1961), Husband was not the natural father yet he put his name on the child's birth certificate, accepted the child into his home and held the child out as his own for over a decade. The court identified a policy by which a non-biological father cannot avoid liability for child support following a divorce from the child's mother if the non-biological father expressly represented himself to be the child's natural father and the child believed him to be the natural father.

Father Walking by BeachAnother example can be examined in the case In re Marriage of Valle (1975), where a husband was ordered to pay support for his in-law's children because he continuously represented that the children were his, the children referred to him as "Daddy" and the children had no contact or memory of their natural parents. The court held that because the non-biological father acted like a parent and his behavior effectively precluded the children from having the opportunity to re-establish a relationship with their natural parents, the court was able to hold him liable for child support.

If you are a non-biological parent and curious whether you may be on the hook for child support, look at whether your day-to-day role is a parent for the child and whether the child has come to see you as being his/her "real" parent. However, note that the latter is sometimes difficult to prove as the non-biological parent would essentially have to interfere with the child's ability to know that someone else is actually the biological parent.

If you are in a situation like Timbaland and his wife and you are curious about your rights regarding requesting or paying child support, contact us today to schedule a consultation.

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Collection of Child Support from a Deceased Parent

July 8, 2013

collecting child support in san diegoAs a result of a divorce, many parents are ordered to make child support payments until the child turns 18 (or 19 if he or she is still in high school, living at home, and cannot support himself or herself). Child support is designed to help with child care costs and all other expenses that are associated with being a full-time parent. If children are young at the time of the divorce, child support payments may continue for quite some time.

Unfortunately, during that often lengthy period of time the payor parent (the parent paying child support) might die prior to the time his or her child support obligations have been completed. If this happens, the question remains whether the child support payments then terminate upon the payor parent's death.

While the death of the parent would be devastating enough for any child, it would be even worse if that child then had to suffer financially as well because the child support payments would no longer be received on his or her behalf. Luckily in California, when a non-custodial parent who is ordered to pay child support dies, his or her obligation to continue to pay child support lives on.

Several cases in California have specifically held that an order to pay child support pursuant to a divorce decree or settlement agreement survives the death of the payor parent and remains a charge against the payor's estate. The payor's estate might include bank accounts, 401(k)s, cars, houses, etc. The living, custodial parent would need to file a creditor's claim against the payor spouse's estate. To the extent that they are part of the probate estate, child support payments would take priority over other obligations of the estate.

But what if the deceased payor parent doesn't leave an estate sufficient to cover his or her remaining child support obligation? One way to ensure that child support payments will continue to be received after the payor parent's death is to secure those payments through a life insurance policy. California Family Code Section 4012 states that "upon a showing of good cause, the court may order a parent required to make a payment of child support to give reasonable security for the payment." In other words, this gives the court authority to require a parent to provide life insurance as security for child support.

Another option is for the surviving parent to seek benefits on behalf of the child from the Social Security Administration if the deceased parent was gainfully employed for a period of time.

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Is There a Limit On What Child Support Payments Can Be Used For?

June 24, 2013

Basketball - Nash Divorce and Child SupportLos Angeles Lakers star Steve Nash has allegedly been in a bitter child support battle with his ex, Alejandra Amarilla. TMZ reports that Nash allegedly doesn't want to pay up because he is worried that Alejandra, who is an excessive spender, will waste the child support payments by spoiling the kids with expensive luxuries that they do not need. If ordered to pay child support, can Nash limit what Amarilla uses the child support payments for?

Child support payments can be used for anything that is considered "necessary" for the child's care and well-being. This generally includes things such as the child's food, clothing, school expenses, after-school expenses and toys. Costs for rent or mortgage, utility bills and other household items are also typically justified as going towards the basic care of the child.


However, California (like a majority of the states) does not require the parent who receives the child support payments to give an accounting to the other parent of how the child support money is spent. Only ten states allow courts to demand an accounting of expenses and spending of child support money received in ten states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon and Washington). Also in Alabama, courts are allowed to demand such accounting under certain circumstances.

Child Walking - Child Support Modification San DiegoHere in California, it is merely presumed that the child support money is spent on the child. Thus, the parent who is making the child support payments does not have much say regarding how the money is used once it leaves their hands.

But what happens when the parent paying the child support suspects that the money is being used not only to care for their children but that it is also going towards the other parent's personal needs? Unfortunately, not much can be done unless the child's needs are actually being neglected or ignored. The payor parent won't be able to seek a modification in his or her child support order from the court without significant evidence that the child's needs are not being met by the parent who receiving the child support payment.

While the parent paying spousal support may want reassurance that their hard-earned dollars are actually going towards their children's needs, rather than their ex's luxuries, unfortunately the law in California is not set up to provide such reassurance. So if Nash is indeed ordered to pay child support to Amarilla, it looks like he won't have much support from the family law court in keeping tabs on Amarilla's spending.

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Ex-spouse's Remarriage Usually Doesn't Impact Child Support Obligation

May 23, 2013

support modification after remarriageIs it possible to go after my ex-husband's new wife's income in order to increase his child support obligation? This question probably comes across a divorcée's mind more often than not. Unfortunately, if your ex-husband remarries, you will most likely be unsuccessful in pursuing his new wife's income as family law courts have proven to be quite reluctant to include a new spouse's income for purposes of calculating child support. The court's logic behind this is that the payment of child support should be the parent's obligation rather than that of the new spouse.


Prior to 1994, courts had authority and discretion to consider a subsequent spouse's income when setting a child support award. However, as San Diego divorce attorneys know, when an ex-spouse remarries, child support adjustments are now governed by Family Code Section 4057.5. This statute prohibits courts from considering a subsequent spouse's income unless the exclusion of the subsequent spouse's income would cause the child to suffer extreme and severe hardship. In other words, if you are the parent seeking to modify the child support order after your ex-husband has remarried, then you should attempt to prove that the child would suffer an extreme and severe hardship if the earnings of your ex-husband's new wife were excluded in considering an award for child support. Thus, courts look exclusively to the needs of the child.

remarriage effecting support modificationPursuant to Family Code Section 4057.5 (b), an extraordinary situation that might constitute an "extreme and severe hardship" is where the ex-spouse voluntarily or intentionally quits working or intentionally remains unemployed or underemployed and relies on his subsequent spouse's income. Such a situation would warrant consideration of all of the community property of ex-husband and his subsequent spouse in modifying the ex-husband's child support obligation.

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As an aside, seeking to modify child support by attempting to include the subsequent spouse's income, might in fact backfire and actually reduce the child support award instead. For instance, if your ex-husband remarries and his new wife makes a considerable amount of money, then he will likely be in a higher tax bracket (if married filing jointly), thereby reducing the amount of his disposable income. In turn, this will then likely reduce the amount of child support that your ex-husband has to pay. However, it is likely that such a decrease would only be a minimal amount each month, depending on how much his subsequent spouse makes. Nevertheless, the subsequent spouse's income certainly won't increase your husband's child support obligation unless the "extreme and severe hardship" exception is met.

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Family Law and the Lottery - Pedro Quezada Settles $29,000 Child Support Debt

April 26, 2013

family-law-lottery.jpgRecent winner of the $338 million Powerball jackpot, Pedro Quezada, has more money now then he probably knows what to do with. However, soon after coming forward as the winner of the fourth-largest Powerball jackpot in history, authorities revealed that this new multi-millionaire was wanted for outstanding child support payments totaling $29,000. Astoundingly, the arrears dated all the way back to 2009! Luckily for Quezada's ex-wife and his five children, who range from ages 5 to 23, Quezada can now finally pay up on the $29,000 of child support that he owes. According to the Passaic County Sheriff's Office, Quezada appeared in court recently to do just that.

The fact that Quezada was $29,000 behind on child support payments may leave many divorcing spouses left wondering what their recourse may be when the other spouse isn't paying up on ordered child support payments. Although not too common, this is especially the case when the obligor spouse (i.e. the spouse who has been ordered to pay child support) suddenly gets lucky enough to hit the lottery jackpot. It is likely that Quezada consulted with a family lawyer soon after winning the lottery.

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family-law-kids.jpg

Family law attorneys often console clients by letting them know that when the obligor spouse fails to make child support payments, the receiving spouse has several options to enforce the child support order. Although there are quite a number of options, family lawyers will advise that the best option to pursue often depends on what the obligor spouse has and where he or she works. These options include, but are not limited to, mandatory wage withholding, liens on personal property (such as bank accounts or vehicles) or real property, fines/possible imprisonment, license suspension and various methods of interception.

One such interception method used by family lawyers to enforce a child support order is known as the "Lottery Winning Intercept Program," which in essence automatically deducts money from the obligor's California State Lottery winnings and then forwards that money to the State Disbursement Unit (SDU) to pay past-due child support. However, family lawyers can only use this method after all taxes and tax liens have already been satisfied. (California Code of Civil Procedure Sections 708.730 & 708.795).

Read more from The Law Offices of Nancy J. Bickford on divorce and finances

family-law-windfall.jpgLuckily for Quezada, he likely still has plenty of money left over after accounting for his taxes and tax liens. It is reasonable to think that the $29,000 in child support payment that he owed is now likely just a small chuck of change to him, and he probably won't even notice a $29,000 deduction from his lottery winning.



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Celebrity Divorce - Brendan Fraser Fights to Lower his Support Obligations

March 11, 2013

Celebrity_Divorce.jpgBrendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a "material change of circumstances" he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse's current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

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Fraser alleges that he has had an increasingly difficult time finding acting jobs since the third film in the "Mummy" franchise wrapped in 2008. However, according to IMDB, Fraser has worked on 17 projects since then. Smith claims that Fraser is lying to the court about his true income and hiding his assets. Smith has good reason to be suspicious of his earnings claims. At the time of their divorce, Fraser claimed that he would make $0 from future acting work. In fact he went on to star in movies grossing up to $2 billion worldwide. When confronted with this information, Fraser claimed deals like this were not "set in stone" at the time of his divorce. It is crucial for a spouse to present an accurate depiction of his or her income to the court in a family law case. If Fraser is in fact misleading the court and his ex-wife, he may face harsh penalties and sanctions.

Please contact us if you are contemplating legal separation, thinking of learning about divorce, or have questions regarding division of assets in divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights.

Hollywood Divorce Spotlight - Skinnygirl Frankel's Child Custody and Support Requests

As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.



Reportedly, the parties' separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel's Petition that she is requesting primary physical custody of the parties' daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

Under Family Code section 4053, "[I]n implementing the statewide uniform child support guideline, the courts shall adhere to the following principles:

(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.

As such, regardless of Frankel's ability to support the parties' daughter, the court is tasked with ensuring Hoppy shares in that responsibility as well, pursuant to the statewide child support guideline. The guideline must account for both parents' actual income. In this case, CelebrityNetWorth.com reports that Hoppy has a net worth of $5 million himself, the majority of which he made as a high end New York real estate agent. His income must be considered in determining whether a support order is appropriate in this case.

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The statewide child support guideline is presumptively correct. If, under the statewide child support guideline, Hoppy is obligated to contribute to the support of Bryn, might he be able to somehow "rebut" the presumption? Could Hoppy perhaps show the court that he too has an extraordinarily high income such that presumed support would exceed the needs of the child, and in doing so successfully rebut the presumption?

Family Code section 4057 provides: "(b) [t]he [presumed child support award i.e. the guideline amount] may be rebutted by admissible evidence showing that...(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the child." To date, no case has defined "extraordinarily high income" for purposes of this section. Rather, it appears to be left to the discretion of the judge to determine what level of income may qualify. A judge may consider the local economic conditions in his or her analysis. But, because under Family Code section 4053 as mentioned above, "children should share in the standard of living of both parents" (Fam. C. section 4053(f)), consider that the needs of a child are relative to the parents' income, even if that income is extraordinarily high.

It should be noted that before a judge can deviate from guideline child support, he or she must first calculate the guideline amount based, generally, on both parents' incomes and their respective time share with the child. Only after that is done can a court go on to make the necessary findings as to why a different amount should be ordered. (Fam. C. section 4056(a)).

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 today.

Can Parents Waive Their Parental Rights?

October 2, 2012

696930_love.jpgIn California, the Family Court System is designed to encourage parties to settle disputes and reach agreements regarding contested issues. Specifically in Del Mar and throughout San Diego County parties are required to attend a Mandatory Settlement Conference before their case can proceed to trial. However, despite this strong public policy towards settlement, the California Court of Appeal has clearly drawn a line between what parties can and cannot agree to.

In this Court of Appeal case, Mother (Kristine) first filed a petition at the trial court level to establish a parental relationship between her son, Seth, and his biological father. Since the parties were not married at the time of conception or birth, there was no presumption that Father (David) was in fact Seth's father. Once the court determined, through the use of a paternity test, that David was Seth's biological father, the parties entered into a stipulation. A stipulation is an agreement that can be filed with the court and creates enforceable orders. Kristine and David stipulated that David consented to terminate all of his parental rights and Kristine agreed to waive any claim for future child support. In short, the parties agreed to terminate David's parental rights and responsibilities.

Over the objection of Minor's counsel, the trial court was persuaded by the parties' argument that they had the right and ability to contract regarding their respective parental rights. David argued that proceedings to terminate parental rights are not necessarily linked to a pending or contemplated adoption therefore he should not be prohibited from terminating his on the basis that Seth would only be left with one parent. The trial court was also persuaded in part by case law in which the court upheld agreements made by parents prior to conception of a child such as in artificial insemination and surrogacy cases.

Ultimately, on appeal, the trial court's decision was overturned. Although the Court of Appeal agreed that the parties had a compelling interest in deciding how parental rights should be allocated post-birth, it ruled against them. The Court based their ruling on the child's best interest. Because the establishment of the parent-child relationship is the most fundamental right a child possesses, the Court viewed a voluntary termination of parental rights (absent exigent circumstances) as equivalent to depriving the child of a basic constitutional right. The Court held the position that a waiver of parental rights is only an agreement of convenience for the parties and does not consider the best interests of the child. Here, Kristine would not be inconvenienced if David ever changed his mind and wanted to be a part of Seth's life and David would not be inconvenienced if Kristine changed her mind and sought child support. Thus, as evidenced by this decision, the best interest of the child is a powerful standard that trumps the parties' ability to make agreements regarding parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford iis the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Evander Holyfield's Child Support Debt

September 27, 2012

Child support, if ordered, is an ongoing parental obligation that usually terminates when the child reaches eighteen years of age, graduates from high school, becomes married or is otherwise emancipated. The amount of child support owed is dependent upon a number of factors such as the income of both parties and the needs of the children. Child support is strictly enforced in a number of ways. Boxing champion Evander Holyfield recently learned that the court's ability to enforce child support extends to celebrities. Holyfield was held in contempt of court for failing to pay past due child support.

In San Diego County, the Department of Child Support Services (DCSS) is one state entity that enforces child support orders. Holyfield was pursued by the Georgia Department of Human Services, which serves a similar function as DCSS. The Georgia Department of Human Services includes the Division of Child Support Services. By the time that the State of Georgia became involved in Holyfield's case, his daughter, Emani Holyfield was eighteen years old and he owed $372,097.40 of unpaid support. By the time he was held in contempt of court, Holyfield's debt had reached a staggering $563,000.00. The court ordered Holyfield to make payments in the amount of $2950.00 per month. In order to get a head start, Holyfield immediately made a payment of $17,700.

To ensure future compliance with the court's order, the judge ordered a percentage of Holyfield's income be used to pay down the support debt. In California, a party or DCSS can file a Earnings Withholding Order for Support. This is commonly known as a wage garnishment. Pursuant to a wage garnishment, a part of the paying party's salary is given directly to the party entitled to either spousal or child support. It is important to note that a court must usually authorize a wage garnishment before an employer can enforce it.

The wage garnishment process can help the process of paying support move along smoothly for both parties. The party relying on the support will be sure to receive it on time and the paying spouse will not have to stress or worry about making the payments each month. Additionally, a garnishment further limits the contacts between the parties, which can be helpful in high conflict cases. While some parties may argue that a wage garnishment is embarrassing, it is a common method of collecting support. The payroll or human resources department of many organizations are highly familiar with the process because it is rather common. If you are entitled to support and the payor is delinquent or late in his or her payments, you may want to consider seeking a wage garnishment.

Please contact us if you are considering a divorce from your spouse, a legal separation , or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

The New Frontier in Custody Cases

August 28, 2012

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As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of "custody" all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine "parental responsibilities." This change would reflect a shift in how children are viewed in society. The idea of "child custody" originated when children were still seen as "possessions" to either be won or lost in a divorce proceeding. Just as the term "wife" has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word "custody" in favor of phrases such as "parenting time" and "decision making," litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled "joint custody" or "sole custody."

Under the California Family Code, a judge may award physical or legal custody. Although the word "custody" is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child's health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word "custody" to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing "legal custody" as decision-making and "physical custody" as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word "visitation" will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with "parenting time" as well in order to reduce confusion.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Should a Sperm Donor Pay Child Support?

May 31, 2012

National bodybuilding champion, Ronnie Coleman, was sued for child support by the mother of his children, Jo D. Jo D. requested that Coleman pay support in the amount of $4,000 per month for the care of their triplets. This is a typical scenario in San Diego family law cases because parents are often sued for past due child support. However, Coleman had a winning argument against payment because he was merely a sperm donor. A California appellate court determined that a sperm donor does not have to pay child support as long as he is not married to the recipient mother.

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The relationship between Coleman and Jo D. blurred the lines between natural father and sperm donor. The two had a sexual relationship while they both lived in Texas as neighbors. Later, Jo D. moved to California and Coleman provided his sperm at California Cryobank, Inc. so that she could be artificially inseminated. Shortly after the birth of triplets resulting from the artificial insemination, Coleman married another woman. At birth, Jo D. listed Coleman on the triplets' birth certificate as their father. One year later, she brought a lawsuit to collect child support against Coleman.

Under the California Family Code section 7613(b), "the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor's wife, is treated in law as if he were not the natural father of a child thereby conceived." This presumption is not absolute and can be overcome in various ways by the father such as: marrying the mother, publically declaring parentage of the child in a manner specified by statute, receiving the child into his home or opening holding the child out to be his natural child.

Here, although Coleman and Jo D. agreed to this sperm donation arrangement, Coleman has since acted inconsistent with any indication that he intended to be a natural father to the children and involved in their lives. Since the birth of the children, Coleman did not marry or attempt to marry Jo D. In fact, he married another woman just months after the birth of the triplets in 2007. Further, Coleman did not open his home to the children nor did he hold them out to be his natural children. Therefore, as the appellate court correctly held, Coleman is not responsible to financially support the children despite his sperm contribution.

Typically, all orders made in family law cases concerning children are based on the best interest of the child. Although it is likely in the triplets' best interest for Coleman to pay support, the interest of sperm donors to be free from the financial obligation of their contribution overrides the application of the best interest standard.

Please contact us if you have questions regarding child custody and visitation or child support. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.