In my California family-law practice, I am constantly asked if it’s okay for a parent to waive child support. When asked, the reasons for considering waiving child support are as follows: Mom doesn’t want Father to seek custody and visitation; 2) Father asks Mother to not seek child support in consideration of Father not seeking custody or visitation; 3) Mother is afraid Father will not pay spousal support if Mother seeks child support. These are but a few examples of why one or both parents may not ask or seek child support. The purpose of this blog post is to shed light on what the law says regarding child support, to include whether or not a parent is allowed to waive child support.
Family Code: The Family Codes that covers child support issues are Family Code 3900 to 9910 and Family Code 4050-4076. Whenever the support of a minor child is at issue, the court may order either one of both parents to pay any amount necessary for the child’s support. (Family Code section. 4001.) A minor child is one under 18 years of age or an adult child (one who is an unmarried full-time high school student who is not self-supporting). Support continues until the child completes the 12th grade or attains age 19, whoever occurs first. (Family Code 3901(a)).
Case Law: The parties may not by agreement “divest” the court of its jurisdiction to order child support. Marriage of Ayo (1987) 190 CA3d 442, 235.
The sum of reviewing both the California Family Code and case law is that parents are not allowed to make agreements that waive child support. Should a parent attempt to waive child support and should this be brought to the court’s attention, this conduct could hurt a parent. Why? This would be an example of a parent not acting within the best interests of the child. The legal standard is known as “the best interests of the child.” The code and case law are crystal clear that both parents have a legal duty to both support the minor child or adult child.
For purposes of this law, who is considered the father? While at first glance, this appears to be a silly question, it is not when you consider that approximately 25% children in California are born out of wedlock. For purposes of evaluating child support, there are two types of fathers—a presumed father and a non-presumed father. Specifically, when the parties are married, the law presumes the husband is the father. This is known as a “conclusive presumption”. (Family Code 7540). If it turned out that the wife had an affair and the husband was NOT the father, Husband would have to prove to the court that he is not the father—especially if wife is expecting her husband to pay child support. When the parties are not married, the reverse is the case–the father is not presumed to be the father. In such instances, the mother or father must file a parentage action under the Uniform Parentage Act (Family Code section 7600-7730). Usually, mother would file a parentage action if she wishes to seek child support from the boyfriend; and, father would have to file a parentage action if he wishes to seek custody and visitation. Thus, in cases where the parents never married, there is a two-step process than must be undertaken. First, establishing that the father is, in fact, the biological father of the minor child; 2) after parentage has been established, setting guideline child support.
In sum, while the parties are free to make any agreements, they must always keep in mind that such agreements could be brought to the court’s attention, and possibly jeopardize their standing in connection with custody issues.
HOW MS. GARRETT CAN HELP
1. Visit Ms. Garrett’s blog California Family Law and Divorce Blog to read and gather general information about family law, custody and support and divorce (and so much more). Ms. Garrett also invites you to subscribe via email for my newsletter. An email will be sent on a weekly basis and delivered into your Inbox.
Click the hyperlink if you wish for Ms. Garrett to answer your question via Email (Email responses are limited to one question and 15 minutes of Ms. Garrett’s time, so they do not include questions related to custody, visitation and/or support).
Click the hyperlink if you wish to set up a 30-minute Phone consultation with Ms. Garrett (Phone consultations are limited to 30 minutes of Ms. Garrett’s time—may include custody, visitation and support if case not complex.)
Click the hyperlink if you wish to set up a Phone or Skype 1-Hour Consultation. (Phone consultations are limited to 60 minutes of Ms. Garrett’s time—usually reserved for complex matters, to include custody and visitation).
Click the hyperlink if you wish to schedule a one-hour Legal and Court Coaching Session with Ms. Garrett. **
Click the hyperlink if you want Ms. Garrett to undertake Document Review.
Click the hyperlink if you want Ms. Garrett to assist you with Document Preparation
Contact Ms. Garrett below to schedule a free 20-minute consultation if you wish for Ms. Garrett to help you decide on the type of legal services she can provide you with and/or to determine the type of legal services you may need. Also, feel free to contact Ms. Garrett if you believe you need more than one hour of Ms. Garrett’s time. In most situations, Ms. Garrett is able to provide legal services to fit most budgets**. (Please note, however, that Ms. Garrett does not provide free legal services.)
Also feel free to visit Ms. Garrett’s main Web Site to determine the types of additional legal services Ms. Garrett is able to provide to California residence family-law issues.
**Except for full legal representation, legal coaching is the next best thing! With coaching, Ms. Garrett is able to provide you with tips, guidance, strategies and procedures to greatly improve your chances of procuring custody orders in your favor.
Examples of coaching include, but are not limited to:
Identifying facts in your case to help you prove to the court that it should grant no less than 50/50 custody; or, sole custody to you.
- Explaining procedural rules regarding filing or responding to a custody motion
- Reviewing and explaining the legal significance and factual content of the documents filed with the court
- Explaining the key factors that the court looks favorably upon or, and just as important, look down upon
- Coaching you with preparing your motion documents or response to the other parent’s motion documents
- Coaching you with preparing additional documents responsive to a custody motion, e.g. Declarations, Income & Expense Declarations, submission of relevant evidence, DissoMaster calculations
- Coaching you for your big day in court
- Coaching you in connection with post-hearing matters, such as the steps needed in connection with preparing the Findings & Order After Hearing
- 20-minute free consultation*
- Consultation Services—regarding all aspects of your custody matter
- Coaching Services.
- If local, providing full-scope legal services.
* Please note that while Ms. Garrett may be able to discount her hourly rate to individuals who can verify extreme financial hardship, Ms. Garrett is not able to free legal services after completion of the free consultation. Should the individual seek such free services, such services may be found by contacting your local bar association or local free legal aide clinic.
Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.
© 2013 California Family Law and Divorce.com Copyright Protected. All Rights Reserved.