 |
 |
 |
|
   |
 |
|
 |
|
 Alameda County Question and Answer Handbook for Noncustodial Parents: A question and answer resource on paternity establishment and child support Acknowledgments The Hewlett Foundation generously provided support for this brochure. All of the ideas, opinions, and legal interpretations presented in this brochure are explicitly those of the Center on Fathers, Families, and Public Policy. It should not be assumed that they are shared by the Foundation providing support for this work. This Question and Answer brochure is based solely on California law and is only accurate for the state of California. It was produced on February 22, 2000, and does not reflect any changes in California law since that date. While the document is legally accurate for all of California, references to specific locations for obtaining legal documents are only meant for fathers whose court case is in Alameda County. This brochure provides only general legal information surrounding the California child support system. It is not advice about your particular legal problem. If you can afford it you should consult an attorney for your particular legal troubles. The Center on Fathers, Families, and Public Policy would like to thank the attorneys working at the Office of Family Law Facilitator in Alameda County. Their help to and concern for low-income family law litigants is a model for the rest of the country. The Center would also like to thank Barbara Edmiston of the Oakland Midnight Basketball Program whose support was invaluable in helping to design this brochure for Alameda County. In addition, we would like to thank the fathers who commented on the usefulness of this brochure: Jamarr Coleman, De'Marco Doakes, Kevin Grant, Taurus Hamilton, Michael McCurty, Jamell Tousant, Eric Williams, Carl Wright, and Lyle Yarbrough. Finally, the Center would like to thank Jennifer Kennedy and Shawn Hughes of the Alameda County Department of Child Support Services.  Table of Contents Top Ten Things You Should Understand In Negotiating The California Child Support System How Can I Get Free Help With My Child Support Case Questions Surrounding Paternity Establishment
Child Support
Visitation and Custody
Introduction Prior to January 1, 2000, California delegated child support enforcement to the 58 county district attorneys offices. Each county district attorneys office operated a Family Support Division. Recently the state launched a brand new agency called the Department of Child Support Services. This change and other changes to the California child support enforcement were brought about because of the conclusion in a recent state audit that the system was disjointed, complicated, and lacking in leadership. These conclusions about the structural failure of the California child support system are consistent with discussions that the Center on Fathers, Families, and Public Policy has had with low-income fathers who must navigate the child support system. This brochure is designed to help low-income fathers in dealing with that system. Every day in the United States, thousands of children are born to unmarried parents. Most of these parents, as do most married parents, heartily and lovingly welcome their children into their lives and into their world. However, the problems and concerns faced by parents who are poor, unemployed, underemployed, or unable to work are particularly complicated and sometimes can seem insurmountable. The subject of this brochure is the legal challenges faced by poor, unemployed, or low-income, unmarried California fathers. Many of these men are (or would be if they were in better economic or social circumstances) interested in establishing a legal and personal relationship with their children. Most of the men in this population, want to be good parents and, to the best of their ability, want to support their children financially, emotionally, and physically. There is a pervasive public perception, however, that there is a connection between out-of-wedlock childbirth and the high cost of welfare to individual taxpayers, and that unmarried fathers are "deadbeat dads." In accordance with these public sentiments, an aggressive child support enforcement system has been created through federal, state, local law and policy to ensure that a child support order is entered for each child and that money, in the full amount of the order, is collected. For an unemployed, or low-income, unmarried man, even one who is genuinely interested in serving the best interests of his children and attending to their financial needs to the best of his ability, this system can be difficult to negotiate. The Center on Fathers, Families, and Public Policy created this brochure to acquaint the reader with the California child support enforcement system (specifically Alameda County) and to highlight the legal processes involved in paternity establishment and child support enforcement. You should read this brochure with the understanding that any individual faced with the situations outlined here would benefit greatly from assistance from a legal professional. Effect of the Federal Welfare Laws The federal welfare law (Personal Responsibility and Work Opportunities Reconciliation Act of 1996) has greatly affected the way that California conducts the business of its paternity establishment and child support enforcement systems. Alleged fathers, particularly those who cannot afford legal advice, must be aware that the federal government has set as its goal that paternity be established for at least 90% of all children born out of wedlock. The new laws were designed to ensure that this goal is reached, and the California child support enforcement system is motivated to reach this goal. For example, California does not allow an unmarried man's name to be added to a birth certificate unless he has signed a Declaration of Paternity form or there has been a legal determination that he is the father. In addition, California can deny children welfare benefits if their mother does not cooperate in establishing paternity. She is required by federal and California law to name the father of her child in order to receive her full welfare benefits. Establishment of paternity for all children is a valid goal and, arguably, in the overwhelming majority of cases, a legal finding of paternity is in the best interests of all concerned: mother, father, and child. In situations where the alleged father is actually the biological father (or at least a concerned man willing to support and raise the children regardless of biological ties) these new laws will not have an unjust impact. However, if a man does not understandthe meaning and possible consequences of documents signed by him or presented to him, or if he is unable to comprehend legal processes, the child support laws and policies may have an unfair result. Legal Services Most people would, if they could afford it, hire a lawyer to handle matters as complicated and serious as establishing paternity and setting child support orders. In paternity cases, such legal assistance is advisable, even if the alleged father does not doubt that the child is his or the genetic test shows that he is the father. However, the reality is that many low-income, unmarried fathers cannot afford such services. The Center on Fathers, Families, and Public Policy developed this brochure as a source of information for alleged fathers and for social service professionals who are trying to help those men negotiate the paternity establishment and child support enforcement systems. Top Ten Things You Should Understand In Negotiating The California Child Support System
How can I get free help with my child support case? For individuals who cannot afford or do not have an attorney, negotiating the child support system can be difficult. The state of California has created services to help you to address the problems faced by many individuals with family law problems. Each county court must have an Office of the Family Law Facilitator to help you with your child support case. The Office of the Family Law Facilitator is separate from the Department of Child Support Services (formerly the Family Support Division) or child support enforcement. The services that the Office of the Family Law Facilitator provides are free. Each office must be staffed by at least one attorney with experience in family law. This attorney will not represent you but will help you to fill out the forms so that you may represent yourself. This attorney is located at the California courthouse. You should call their office to find out what services are available at what times. In Alameda County, the Office of the Family Law Facilitator is called the Family Law Help Center, which is located in two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Room 179, Hayword, CA 94544. The telephone number for this office is (510) 670-5150. The Alameda County Family Law Facilitator office is staffed by attorneys and paralegals who cannot represent you, but who will help you fill out forms and will provide legal information so you can represent yourself. What services does the Family Law Facilitator provide? The Family Law Facilitator can provide a number of invaluable services to individuals who do not have an attorney for certain family law matters. Some of these services include:
Paternity Establishment What does it mean to have my name appear as the father on a baby's birth certificate in California? Since January 1, 1997, if you are not married to the mother of a child, your name may not be added to the birth certificate as the child's father unless you have voluntarily acknowledged paternity (by signing a Declaration of Paternity form) or you have been legally determined to be the father by a court. What is meant by the word "paternity"? Paternity means fatherhood. Both legally and biologically, the word paternity designates the identity of the father of a child. Except in rare circumstances, when a mother gives birth to a child she is considered the legal mother of that child. Every child also has a biological father. If you are never married to the mother of the child and your paternity has not been established, most likely California does not give you any rights to or responsibilities for the child as the child's father. To be the legal father, paternity has to be legally established. Paternity is presumed when a man is married to the mother of a child at the time of conception or birth. If a man is married to the mother of a child at the time of conception he will be legally considered the father of that child. In California, paternity is also presumed if the child lives with the father and the father openly holds out the child as his natural child. For most children born to an unwed mother, however, there is no presumption as to who is the legal father of the children. How can the paternity of a child be established for a child born to an unmarried mother? In California, there are two primary ways to establish paternity for a child born to an unmarried mother. The first option is for both parents to sign a legal form that establishes the paternity of the child. This form is called a Declaration of Paternity. The second way to establish paternity is through a court proceeding. Since the 1980s, very accurate genetic tests have been developed which are virtually conclusive in determining a child's father. If a mother or the state claims that you are the father of a child, you should not agree that you are thefather of the child unless you are absolutely sure that you are. If you are not sure, you should insist on a genetic test to determine whether you are the father of the child. If you are absolutely sure that you are the father of the child and the mother agrees, you should both sign a Declaration of Paternity form. This will avoid the expenditure of time and money involved in going through the process for a man who is unsure as to whether he is the father of a child. What if the mother of my child is not married to anyone and we both want to establish the paternity of our child as soon as the baby is born in the hospital? In California, if both parents sign a Declaration of Paternity form, paternity can be established in a hospital at the time their baby is born. If you are at the hospital when the baby is born, you and the mother must be given an opportunity to sign this form. When both of you voluntarily sign this document you establish a legal presumption of paternity. That is, if you both sign this form you can be held responsible for child support. Signing the form also can enable you to attempt to get a court order for visitation or custody. Obviously, the decision to voluntarily acknowledge paternity is a very serious one and should not be made lightly or without serious thought and preparation. Before signing this form the alleged father must be advised both orally and in writing of the legal consequences of signing the form. An alleged father must also be advised of his constitutional right to have the issue of paternity determined by a court if he does not sign this form. If I do not establish paternity in the hospital, can the mother and I do it later? Yes. The form that parents may sign later is the same form that was available at the hospital when your baby was first born. This form is called a Declaration of Paternity form. You can obtain this Declaration of Paternity form from the office of the Department of Child Support Services (formerly known as the Family Support Division), the office of the local registrar of births and deaths, any California courthouse, and county welfare departments. If the parents do not sign the form in the hospital, both parents may complete it, have it notarized, and mail it to the state Department of Social Services at any time after the child's birth. You will have to pay a fee to the State Office of Vital Records to have your name added to the birth certificate of the child. In addition, you will have to complete a form that is called a V-S 22 as part of the process to amend the child's birth certificate. To receive help in completing a Declaration of Paternity form you may contact your local office of the Family Law Facilitator. The Family Law Facilitator offices throughout California are located in California courthouses. The Family Law Facilitator offices are not part of the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator is called the Family Law Help Center, which has two offices. One is located in the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The other Family Law Help Center is located at 224 W. Winton Avenue, Room 179, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. What if, after signing the Declaration of Paternity form I have reason to believe I am not in fact the father of the child? Even if you sign this form and then become unsure whether you are the father, there are ways for you to cancel this Declaration of Paternity form. However, this is most easily done within 60 days of signing the form. After 60 days pass, the requirements for doing this are more difficult. If within 60 days of signing the form you decide that you want to cancel this Declaration of Paternity form and you have not been a party in a court case concerning the child, you may sign a second form that makes you no longer the biological father. This second form is called a Rescission of Paternity form and is available at the local family support office or the office of the local registrar of births and deaths. The Rescission of Paternity form must be filed with the state Department of Social Services within 60 days of both parents signing the Declaration of Paternity form. If a legal proceeding relating to the custody, visitation, or support of the child occurs within that 60-day period and you are a party to this lawsuit you may ask the court to cancel the Declaration of Paternity form. However, if this legal proceeding relating to the child occurs and you do not claim that you are not the father, you lose the option to cancel the form by simply signing a Rescission of Paternity form within the 60-day period. If, after this 60-day period expires, you decide that you no longer believe that you are the child's father, you will have to go to court and for a limited number of possible reasons have the court determine that you are not the father. For each of these possible reasons there are various time limits that would not enable you to claim you are not the father for that reason. It is best if you can afford one to seek the advice of an attorney if you are unsure if you are the father and the 60 days in which to cancel the Declaration of Paternity form have passed. One of the possible reasons for canceling the Declaration of Paternity form is that you are not the father of the child. However, to claim this reason you must request that the court take a genetic test before the child is two years old. I am under 18. If I sign a Declaration of Paternity form, will that make me the biological father? Not immediately. A Declaration of Paternity form signed by a mother or father who is younger than 18 has a different effect than one signed by two parents who are both over 18. But signing the Declaration of Paternity form will still make a court assume that you are the father of the child if someone tries to get a court order declaring you the father of that child. When one of two events happen the Declaration of Paternity form signed by you will have the same effect as one signed by two parents who are both over 18. If the parent or parents who are under 18 are able to financially support himself or herself, then the Declaration of Paternity form will have the same effect as one signed by two parents who are both over 18. Also, 60 days after the parents have both turned 18, the Declaration of Paternity form will have the same effect as one signed by two parents who are both over 18 at the time they signed. This second form is called a Rescission of Paternity form and is available at the local Department of Child Support Services (formerly known as the Family Support Division) or the office of the local registrar of births and deaths. The Rescission of Paternity form must be filed with the State Office of Vital Records within 60 days of both parents being 18 or before the parent who is under 18 is able to support himself or herself. If you are under 18 and have signed a Declaration of Paternity form and are not sure whether you are actually the father of the child, you should be sure to file a Rescission of Paternity form with the State Office of Vital Records. What if she says I am the father and I say that I am not the father? If she or the government sues me should I just avoid her and the court so that I will never actually be determined to be the father? No. If you do not think you are the biological father and you have not signed a Declaration of Paternity form, there will have to be a suit brought against you to establish that you are the father. Among the people who can sue to establish whether you are the biological father are the mother, the child, or the government in certain cases. If you are summoned for a paternity hearing, the most important thing for you to do is file an Answer with the court within 30 days and serve a copy of your Answer on the other party. You must also show up at the courthouse on the dates you are supposed to. If you do not do either of these, the court can enter a default judgment against you. This will mean that you are legally determined to be the father and that you are responsible for paying child support and other costs. The Family Law Facilitator can help you to complete the paperwork for filing an Answer when someone is trying to establish that you are the legal father of a child. Family Law Facilitators are located throughout California in the state courthouses. The Family Law Facilitator offices are not part of the Department of Child Support Services (formerly known as the Family Support Division). The Office of the Family Law Facilitator, which in Alameda County is called the Family Law Help Center, may also help you to fill out and properly file an Answer if you do not have an attorney. They provide workshops to help individuals through matters related to paternity establishment and other family law matters. In Alameda County, the Family Law Help Center has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Room 179, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. I owe child support, but I never went to court and I was never married to the mother of the child nor did I sign a form saying that I was the father of the child. What happened and is there anything that I can do about it? If you were given a Summons and Complaint to establish paternity or child support, you had to properly respond within 30 days. If you did not take this action or did not show up in court or if you never got a copy of the Summons, the court probably entered a Default Judgment against you. This means that the court established you as the legal father of the child and created a child support order based on the financial information that the district attorney had about you. One way to challenge the Default Judgment is if you were not properly given notice of the court hearing about paternity establishment. You must prove that you never received the proper documents that notified you of the court date. You can challenge the Default Judgment within 6 months of when it was filed if you file to "set aside" the default within that 6 months. After 6 months it becomes more difficult to challenge: you must prove to the court that you were not served with the Summons and Complaint, and that you acted promptly when you first found out about the judgment. If I am not the father or am unsure if I am the father, what will happen after I file an Answer to the government's paternity suit? In the Answer that you file, you will be asked whether you are the father. If you have any doubt that you are the father, you should consider filing an Answer that says you are not the father, because you will then be scheduled for a genetic test. This test requires that a blood sample be taken from you, the mother, and the child. This test is usually quite accurate in determining if you are the father or not. If the test determines that you are not the father, then you will not have to pay for the test and the case will be dismissed. If the test finds that you are the father, then you will be asked to pay for the test (approximately $250) and the court will proceed to make a finding that you are the father and will order that child support be paid. While the first test is extremely accurate, all parties have the right to ask the court to order a second genetic test. If you want a second test, you will be required to arrange for the new test and to pay for it. Tests not arranged by the government usually cost about $450. What if the district attorney tries to establish that I am the father of the child and I do not agree and do not stipulate to being the father? If the district attorney is suing you to establish that you are the father of the child, a child support commissioner will likely hear your case. The child support commissioner can order you, the mother, and the baby to take a genetic test. The child support commissioner will hear the case and make findings of fact and a recommended order. Unless you or some other party objects to the recommended order or it is in error, it shall become a court order within 10 days. If you object to the recommended order, two things will happen. First, a judge will create a temporary order. Second, within 10 days a judge will hear your case. The judge must hear the case without relying on the findings of the child support commissioner. What if I believe that I am a child's father, but the mother who is single says that I am not? What if she acknowledges my paternity socially, but denies it when I want to see my child? If the child's mother says that you are not the child's father, or denies you access to the child and paternity has not yet been established, you can exercise the right, given to California fathers, to initiate a suit for paternity. If you cannot afford an attorney for this matter, the Family Law Facilitator can help you to fill out the necessary paperwork to initiate a suit for paternity. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center. They have created a packet for you that will explain what you need to do to establish that you are the legal father of that child. They also provide workshops, by appointment only, on how to properly fill out this packet. The alleged father in a paternity suit has an absolute right to request a genetic test of the mother, the child, and himself. If you properly motion for a genetic test early enough in the proceeding, the court must order each of you to have the genetic test taken. The court probably will also order a genetic test if you simply suggest to the court that you want the test. If any party refuses to take a genetic test after a court orders a genetic test, the court may decide the case against the party. If the court does enter an order establishing paternity based on your suit; it must then consider the issue of child support. The court will enter, by law, a child support order. If I sue to be declared the father of the child and a court determines that I am the father, what will result? When paternity is established the court must consider the issue of child support. The court will enter, by law, a child support order. However, the court is required to consider issues of visitation and custody at that time only if there has been a request for such consideration by one of the parties involved. You have to make this request to make sure that thoseissues are raised and, finally, decided in the courtroom. The Family Law Help Center has a packet for fathers who wish to have a court declare them the father of a child. In this packet is a section to fill out if you want visitation or custody. Be sure to fill out the appropriate box for what you want the court to grant you. If you are seeking a right to visitation and a specific schedule for such visits, you should first try working directly with the mother to come to a reasonable agreement. If you and the mother cannot come to an agreement concerning custody or visitation, the court will refer you to a mediation service to attempt to develop an agreement that assures the child contact with both parents that is in the best interest of the child. In Oakland, the mediation service (Family Court Services) can be reached at (510) 272-6030 and is located at 1221 Oak Street, Room 260. In Hayward, Family Court Services can be reached at (510) 670-6350 and is located at 224 W. Winton Ave, 2nd floor. You should call first. When mediation is required to settle a contested issue of custody or visitation, the agreement shall be limited to the resolution of issues relating to parenting plans, custody, visitation, or a combination of these issues. The mediator will try to have you reach a settlement that is in the best interest of the child. The mediator may submit a recommendation to the court concerning the custody or visitation arrangement that is in the best interest of the child. If after the mediation you and the mother come to an agreement, it will become a court order when both you and the mother agree to it in open court or by written agreement. However, if you do not appear at the court hearing on the issue decided on in mediation, the court will make the agreement obtained at the mediation session into a court order. If after the mediation you and the mother cannot reach an agreement concerning a parenting plan, visitation, or custody, the mediator may inform the court of this and the unresolved matters may be set for a hearing before the court. The mediator will advise the court about what he or she thinks is in the best interest of the child. Because the judge follows the recommendation of the mediator most of the time, the mediation is the most important part of the custody proceeding. Finally, a noncustodial father has a right to present his position on visitation and custody to the court. Neither parent is presumed to have a right to custody that is more important than the other. In determining visitation or custody, the court's primary consideration is supposed to be the best interest of the child. To determine what is in the best interest of the child, a court's primary concern will be to assure that the health, safety, and welfare of the child are looked after. The court will also try to make sure that a child has frequent and continuing contact with both parents except if contact with either parent is not in the best interest of the child. One reason for denying visitation or custody to a parent is if the court believes there is a history of abuse against any children who that parent had responsibility for, against the other parent, or against a person that parent currently is dating. It is harmful to the child if a parent commits domestic violence or child abuse in a household where a child resides. What are the legal benefits of establishing paternity for an unwed father? Once paternity is established, a man becomes the legal father of that child, with all of the rights and responsibilities of a married father. There is no guarantee of the right to custody or visitation, but a father has the right to raise the issue of custody and visitation in court. The California child support enforcement office cannot help a father obtain visitation or custody with the child. If you and the mother have signed a legal form that establishes the paternity of the child, which is called a Declaration of Paternity form, you have the right to try and obtain a court order granting you visitation, custody, or any other matter in the best interest of the child. If you cannot afford an attorney for this matter, you may do this without an attorney. If you are the noncustodial parent, the government or mother may seek a court order for child support because you have been legally determined to be the father. If a court order determines that you are the father of a child, the order may include provisions regarding your duty to support the child, visitation, custody, or any other matter in the best interest of the child. What are the legal consequences of establishing paternity for an unwed father in California? California requires that if you are a noncustodial parent you must pay child support. In addition, you are generally responsible for half of the uninsured health care costs for the children. A noncustodial parent also is generally responsible for half of the childcare costs that result from the custodial parent getting or having a job or going to school. Child Support What happens when the government sues me for child support? When the district attorney sues you for child support you will receive a document called a complaint. Attached to the complaint should be a document called an Answer for you to respond to the complaint. You have 30 days from the time you receive the complaint to file an Answer. There should be instructions on how to properly complete an Answer. You can file an Answer without an attorney. The state of California has created Family Law Facilitator offices that provide help to individuals without an attorney who need help responding to a lawsuit for child support. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center, which has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. They provide legal clinics to help individuals through family law matters. The complaint will also have a suggested amount that you should pay as child support. This suggested amount for child support will automatically become an order for child support unless you file an Answer and appear in court on the appropriate day. When you file an Answer and appear in court a judge will decide how much you owe based generally on the California child support guidelines. The proposed child support amount will be based on what the district attorney thinks your income is or should be based on your work history. If the district attorney is unable to find out what your income should be, the child support amount will be based on what the state has decided is the reasonable amount necessary to take care of a child, unless information concerning your income is provided to the court. How does the court or local child support office decide how much child support I should pay? California has established a formula to calculate what a noncustodial parent should pay for child support. The formula takes into account a parent's actual income and the level of responsibility (amount of time you spend with the child) that the parent has for the child. Both parents are responsible for supporting their child. The court or local child support office will use a computer program, which contains the formula, to calculate the amount of child support you owe. There are many factors that go into determining how much support you will actually pay. There are services to help non-custodial parents to figure out how much they will owe in child support. In Alameda County, computers are available to the public to figure out their child support order. These computers are available in the courthouses in Hayward, Oakland, and Pleasanton. These computers are free of charge. Another service is available over the Internet at http://www.supportscan.com. If you do not have access to a computer you can access this website at the Oakland public library. There is a charge of $15 for the first three calculations and you will need a credit card to use this service. The obligation to pay child support usually continues until the child turns 18, unless the child is still in high school. In that case, the obligation continues until the child finishes high school or turns age 19. The obligation will also end if the child marries, dies, or is emancipated before the age of 18. If your child is disabled and cannot work, your obligation to pay child support can continue into the child's adulthood. Are there ways for me to pay a different amount than the amount that is determined by the California child support guidelines? Yes. However, California courts generally will follow the California child support guidelines in determining the amount of child support that you owe. The court will use a computer program, which contains the formula, to calculate the amount of child support you owe. There are a number of ways that you may be allowed to pay a different amount than the amount of support that you would owe according to the California child support guidelines. For instance, if the mother is not receiving public assistance you may both agree on some amount that is different from the California support guidelines. One other way to have your child support order match with your income situation is if you qualify for a low-income adjustment. To qualify for a low-income adjustment you must have a net disposable income of less than $1,000 a month. Figuring out whether you qualify for a low-income adjustment and the amount of that adjustment may require the services of the Family Law Facilitator. Family Law Facilitator offices are located at various courthouses throughout California. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center, which has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. If a court is determining the amount of support that you will owe and you qualify for a low-income adjustment, the court will look at a number of factors to determine whether to actually grant the deduction. If you satisfy the standards for a low-income adjustment, a court is likely to grant it to you when it sets your initial child support amount. If you already are paying child support, you may still be eligible for a low-income adjustment. Again, to qualify for a low-income adjustment you must have a net disposable income of less than $1,000 a month. To get the reduction, you must get a modification of your child support order. One way to get a modification of your child support order is for you to go through the court system. If you cannot afford an attorney for this matter you may receive help from the Family Law Facilitator. Will I be responsible for providing health insurance for my child? Yes. Parents are responsible for health insurance when they do not live together. Either one or both of the child's parents must provide this coverage. However, you will only be responsible if the insurance for your child is available to you at no cost or a reasonable cost through your employer. It will be up to a court to determine whether the cost of the insurance is reasonable. The court will make this determination based on the evidence you and the other side give to the court. What if I do not have a job when the court sets the amount of child support that I owe? The first thing a judge is likely to do is to order you to seek work. This will mean that you must attempt to get a job and keep a record of your efforts to get a job until you have a job. Even if you are not working, the court may order you to pay an amount of support consistent with what it believes you could earn. This is known as your earning capacity. In certain situations, even though you have no income the court will order you to pay child support based on your earning capacity. The court is supposed to set an order based on your earning capacity, only if three factors are satisfied. First, you must have an ability to work. In determining whether you have an ability to work the court will look at your age, your education, your health, your work experience, and your other job qualifications. Second, the court is supposed to look at your willingness to work. Have you made a good-faith effort to get a job? Finally, the court is supposed to look at whether you have an opportunity to work. Is there an employer that will hire you? If the court looks at those three factors and determines you should be earning money, it will base your child support order on what the court believes is your earning capacity. A court may also require you to attend job training, job placement, or other work programs. I owe a certain amount of money each month in child support. How come the amount that I am supposed to pay is so much higher than the monthly child support amount that I owe? There are many reasons why the amount of money you owe each month can be greater than your current monthly child support amount. One major thing that you may owe is to pay for about half of the childcare expenses of your child while the custodial parent is working or going to school. You may also owe more because you have fallen behind in paying your child support. When you fall behind in your child support you will not only have to pay your current amount of support but an additional amount to begin to cover what you were unable to pay in the past. You will be charged 10% interest per year on any child support that you did not pay when it was due. You may also be responsible for the costs of the mother's pregnancy, the child's health care expenses, the costs of genetic tests, attorney fees, and other costs. In addition, your employer may charge you one dollar every time that the employer takes money from your paycheck to provide support. All of these other costs may be added to the amount that you owe each month. What if I lose my job or I am unable to pay child support? If you lose your job, make less money than you used to, or become physically disabled and unable to earn an income, you should notify the court immediately. To do this you will need to fill out forms that are available from the Family Law Facilitator. The Family Law Facilitator has attorneys who have experience in family law matters. The attorneys will not represent you but will explain how to fill out the proper forms so that you can represent yourself. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center, which has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. Many noncustodial fathers believe that if they get behind at a time when they are legitimately unable to make a child support payment, what they owe can later be reduced or discounted, when an explanation is given. However, if you wait to explain your changed circumstances, you will be unable to reduce the back payments that you owe. So it is very important that you notify the court by filling out the proper paperwork for a modification of your child support amount. If you do, the court may temporarily or permanently reduce the amount of future payments. What should I do about my child support order if I am in jail? You will most likely still be responsible for child support based on your past income. To get it changed you need to notify the child support office immediately that you are in jail. You should be sure to include how long you will be in jail when you notify the child support office. Many noncustodial fathers believe that if they get behind at a time when they are legitimately unable to make a child support payment, what they owe can later be reduced or discounted, once an explanation is given. However, if you wait to explain your changed circumstances, you will be unable to reduce the back payments that you owe. So it is very important that you notify the child support enforcement office and ask for a modification of your child support amount. If you do, they may temporarily or permanently reduce the amount of the payment. What does the court look at in determining whether to increase or decrease child support? If I ask for support to be decreased, could it be increased instead? You should request that a court modify the amount of your support if there has been a significant change in your income, the custodial parent's income, or the amount of time that you spend with the child. It is very important to request that a court or the child support office modify your child support amount as soon as possible because if you do not make the request, you will still owe the full amount of support even though your situation has changed. Once you request the court to modify the amount of child support, the court can modify it both upward and downward. If you cannot afford an attorney for this matter, you may do this without an attorney. California has created forms for parents without attorneys who wish to file a request to modify the amount of the award. The state also provides Family Law Facilitators at courthouses throughout California that can help you to fill out the forms necessary for you to ask the court to decrease the amount of support that you owe. The Family Law Facilitator offices are not part of the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center, which has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. Once you have followed the proper procedure, a court will determine whether to modify the amount of child support that you owe. Is there another way besides appearing before a judge in court for me to decrease the amount of child support that I am paying? Yes. The Department of Child Support Services (formerly known as the Family Support Division) must either decrease or increase your child support order, if you meet certain conditions. The Department of Child Support Services must help you even if it has been helping the other parent. You must ask the Department of Child Support Services for this help by sending a letter to the Department of Child Support Services. You should address the letter to your child support caseworker. If you do not know who your caseworker is, you should seek out this information from the Department of Child Support Services. Of course, you always have the alternative to ask a court for a modification of your child support. If you wish to use the court system and cannot afford an attorney for this matter, you may do this without an attorney. California has created forms for parents without attorneys who wish to file a request to modify the amount of the award. The state also provides Family Law Facilitators at courthouses throughout California that can help you to fill out the forms necessary for you to ask the court to decrease the amount of support that you owe. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly known as the Family Support Division). In Alameda County, the Family Law Facilitator office is called the Family Law Help Center, which has two locations. One location is the RenŽ C. Davidson Alameda County Courthouse at 1225 Fallon Street, Room 240, Oakland, CA 94612. The telephone number for this office is (510) 208-4969. The second location is 224 W. Winton Avenue, Hayward, CA 94544. The telephone number for this office is (510) 670-5150. Once you have followed the proper procedure, a court will determine whether to modify the amount of child support that you owe. I am under 18. Can my parents be ordered to make child support payments for my child? No. Grandparents do not have a duty to support their grandchild, even if the parent of that child is under 18. What can they do if I do not pay my child support? No matter how old the child is you must pay any child support that you did not pay while you were required to provide child support. Therefore, even if your child is 25 years old you must pay back support that you did not pay when you still owed child support. Not paying child support will also result in you having to pay more money because California charges you interest when you do not pay current child support. The amount of interest that California will charge on what you did not pay is most likely 10%. If you do not pay your child support there are a number of penalties the child support enforcement office can use against you. Some of these penalties include: not granting or renewing your driver's license, taking your tax refunds, reporting your failure to pay to credit bureaus, not granting or renewing occupational licenses, or through a court action placing you in jail for failure to pay child support. Also, as mentioned above, you will be charged 10% interest on any past-due support. One tool used to get you to pay child support is to take money directly from your paycheck and send it to the custodial parent or the state child support disbursement center. If a court orders your current or any future employer to take money out of your paycheck for child support, California requires that your employer follow this order. In addition, a California employer may take a dollar from your paycheck for each time that your employer must deduct money for child support from your paycheck. Can they put me in jail for not paying child support? Yes. If you do not pay your child support you can be held in contempt of court and this can result in you being put in jail. You have a right to raise as a defense that you did not have the ability to pay child support. However, just because you did not have any money will not allow you to make this claim. You will also have to show that you did not willfully refuse to seek and accept an available job for which you were able to get because of your education, experience, and physical ability. You have the right to be represented by an attorney throughout the court hearing to determine whether you are in contempt. If it is possible that you will be put in jail and you cannot afford an attorney, you should ask the court to appoint an attorney for you free of charge. Visitation and Custody How can I get custody or visitation with my child? If you are married to the mother of the child, custody and visitation are usually determined as part of your divorce. Even if you were never married to the custodial parent, you have the right to ask for custody or to visit with your child. If there is a court action to establish your paternity or seek child support from you, you may ask for custody or visitation as a part of those proceedings. If you were not married, you may also bring a separate legal action in court to obtain custody or visitation. If you cannot afford an attorney for this matter, you may do this without an attorney. California has created forms for parents without attorneys who wish to file a request to have visitation or custody with their child. These forms may be obtained at your local courthouse. After you have filed the forms, if you and the mother cannot come to an agreement concerning custody or visitation, you will be referred to a mediation service. At the mediation service you, the mother, and the mediator will attempt to develop a parenting plan that assures the child has contact with both parents that is in the best interest of the child. The mediation sessions are free. Unless you and the mother are in complete agreement on custody and visitation, you will be required to attend mediation before the court hearing. You will be assigned to one mediator who usually remains assigned to your case so long as your child is under 18. In Oakland, the mediation service (Family Court Services) can be reached at (510) 272-6030 and is located at 1221 Oak Street, Room 260. In Hayward, Family Court Services can be reached at (510) 670-6350 and are located at 224 W. Winton Avenue, 2nd floor. You should call first. Where mediation is required to settle a contested issue of custody or visitation, the agreement shall be limited to the resolution of issues relating to parenting plans, custody, visitation, or a combination of these issues. The mediator will try to have you reach a settlement that is in the best interest of the child. The mediator may submit a recommendation to the court concerning the custody or visitation arrangement that is in the best interest of the child. After you and the mother reach an agreement through mediation, the agreement will become a court order when both you and the mother agree to it in open court or by written stipulation. However, if you do not appear at the court hearing on the issue resolved through mediation, the court will make the agreement obtained at the mediation session into a court order. If after the mediation you and the mother cannot reach an agreement concerning a parenting plan, visitation, or custody, the mediator may inform the court of this and the unresolved matters may be set for a hearing before the court. The mediator will advise the court about what he or she thinks is in the best interest of the child. Because the judge follows the recommendation of the mediator most of the time, the mediation is the most important part of the custody proceeding. What are some of the factors that a court will look at in California when determining who gets custody of our child and how much visitation with the child we each get? Neither parent is presumed to have a right to custody that is more important than the other. In determining visitation or custody, the court's primary consideration is the best interest of the child. In determining what is in thebest interest of the child a court's main concern will be to assure that the health, safety, and welfare of the child are looked after. The court also will attempt to assure that a child has frequent and continuing contact with both parents except if contact with either parent is not in the best interest of the child. One grounds for denying visitation or custody to a parent is if the court believes there is a history of abuse against any children who that parent had responsibility for, against the other parent, or against a person that parent is dating currently. It is harmful to the best interest of the child if a parent commits domestic violence or child abuse in a household where a child resides. If the child's mother interferes with visitation, may I refuse to pay court-ordered child support? No. Access to the child for visitation is not a prerequisite for the payment of child support. If a mother consistently refuses to allow visitation, you must go to court and inform the court of the mother's refusal to cooperate. If you have a dispute over visitation you may file a petition for mediation of the issue. The mediation of the dispute shall be set for not more than 60 days after you file the petition. |
|
|
 |
||
|
Copyright 2001, the Center on Fathers, Families, and Public Policy. All rights reserved. Privacy Statement | Copyright Statement | Disclaimer |
|
|
|
|||