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Custody Cases—Factor of When a Parents’ Income is Vastly Different from the Other Parent’s Income

If you already read a few of my blog posts, you now know that there are many factors affecting how a California family-law judge determines custody and issues custody orders.  The “best interest of the child” legal standard pretty much covers any and all factors affecting the child’s health, education and welfare of the child.  In my California Family Law practice,  I have been approached many times by a parent concerned about losing custody to the other parent because the other parent’s income is significantly much higher than theirs.  What do you think, will the varying income of the parents determine custody?

It may surprise you to learn that the answer is no. A California family-law judge will not award issue to one parent over the parent based on one parent having a higher income than the other parent. However, there is a bigger question to be asked: Is the lower wage earner’s income sufficient to provide proper care for the child? No?  Instead, a California judge will, if possible, order that the noncustodial parent (Party B) pay more child support to the custodial parent (Party  A).

Cases to Consider

  1. A court may not base its decision to award custody to a parent on an assumption that the care provided by a single, working parent (who will be dependent on day are) is inferior to that care provided by a remarried parent whose new spouse can care for the child at home. (See Burchard v. Garay 91986) 42C3d 531, 540, 229 CR 800.)
  1. A court may not rely on the assumption that because a child’s biological parent has remarried and can stay home to care for the child, the remarried parent should have custody. (See Marriage of Loyd (2003) 106C4th 754, 131 CR2d 80 (custody modification)).

 Discussion

While differences in income are not a legal basis to award custody to one parent, this issue could be a factor to be considered when examining other related factors. For instance, why is the lower parent’s income much lower than the other parties?  Was the stay-at-home parent a stay-at-home parent during the marital period; or, is this parent an alcoholic and/or drug addict who can’t keep a job?  While these are extreme examples, they make my point.  And, lest not forget, that the court will look to any and other factors affecting the child’s best interests.

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.

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