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 Contra Costa County Questions and Answers for Noncustodial Parents: A question and answer resource on paternity establishment and child support Acknowledgments The Ford Foundation, Charles Stewart Mott Foundation, and Public Welfare Foundation generously provided support for this handbook. All of the ideas, opinions, and legal interpretations presented in this handbook are explicitly those of the Center on Fathers, Families, and Public Policy. It should not be assumed that the foundations providing support for this work share them. The production of this handbook would not be possible without the help of many individuals who took the time to read and comment on earlier drafts of it. Ultimately, any errors in interpretation of the laws of California are solely those of the author. In addition, the Center on Fathers, Families, and Public Policy made the final decision as to whether or not to include something in this handbook. We would like to thank the Staff of Rubicon Programs, Inc. Their help to low-income fathers is invaluable. In particular, we would like to thank Dora Dome for her thoughtful comments on this handbook. Most important we would like to thank many fathers who reviewed this handbook as part of a focus group at Rubicon Programs in Contra Costa County. These fathers include: Obajahsun Ashaloma, Charles Calloway, Atone Anderson, Marc Simpson, Jamora Napoleon, Paris Lindsey, Isaiah Smith, William May, Mike Moore, Gary Watson, Lamont Foggy, Demond Rodgers, and Raven Richardson, Sr., and Deon Webb. 
Table of Contents The Top Ten Things You Should Understand About The Contra Costa County Child Support System Questions Surrounding: Paternity Establishment
Child support
Visitation and Custody
Introduction This handbook is based on California laws and is for non-custodial parents with cases in Contra Costa County. It is only for fathers with cases in California. It was produced on February 7, 2002, and does not reflect changes in California law since that date. This handbook provides only general legal information about the Contra Costa County California child support system. It is not advice about your personal legal issues. If you can afford it you should talk with a lawyer for help with your legal problems. This handbook will be about paternity establishment and child support issues. You should know that you would likely benefit to get help from a lawyer. The Center on Fathers, Families, and Public Policy (CFFPP) does not represent fathers with cases in California. In fact, CFFPP does not have any lawyers who practice law in California. You can read the handbook from cover to cover. If you have a specific question you can also just jump to that question. Legal Services Most people would hire a lawyer to deal with their paternity establishment or child support issues. Yet many fathers cannot pay for this help. This handbook gives information for these fathers and for social service professionals who try to help them. This handbook does not replace a lawyer to help you with your legal problems. The Top Ten Things You Should Understand About The Virginia Child Support System
Paternity Establishment What is meant by the word "paternity"? Paternity means fatherhood. Both legally and biologically, the word paternity means who is the father. When a mother gives birth to a child she is almost always the legal mother of that child. She has rights and duties for the child as the child's mother. For a father it is different. Every child has a biological father. If you are never married to the mother and your paternity has not been established, most likely California does not give you any rights to or duties for the child as the child's father. How can the paternity of a child be established? There are two primary ways to establish paternity for a child born to a mother who has never been married. Both parents can sign a legal form.. This form is called a Declaration of Paternity. Another way to establish paternity is by going to court. If you are absolutely sure that you are the father of the child and the mother agrees, you can both sign a Declaration of Paternity form. While the baby is still in the hospital, the mother and the father, if he is present, are given a chance to do this. In addition, you may do this at a later date. If you do not live with the child, you still will likely have to do a number of things after signing a Declaration of Paternity form. For instance, you will likely be required to go to court to determine the amount of child support you should pay. In addition, if you wish to have court-ordered visitation with your child you still will need to have a court determine this. Further, you will not be able to get a genetic test (DNA test) to be absolutely sure that the baby is yours. If a mother or the state claims that you are the father of a child in a court proceeding, you may want to take a genetic test to make sure you are the biological father. A genetic test is the best way to be absolutely sure that you are the biological father. If you are not sure and want to know, you should insist on a genetic test at the court hearing. Where can I get the form that the mother and I can sign so that I am declared the father of the child? You can get the Declaration of Paternity form at the hospital when the mother gives birth to the child. You also can get this 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, and the county welfare departments. Do I have to sign a Declaration of Paternity form in the hospital? No. If the parents do not sign the form in the hospital, it can be done at any time after the child's birth. After that is done, you will have to pay the State Office of Vital Records to have your name added to the birth certificate of the child. You will also have to complete a form that is called a V-S 22 as part of the process to change 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 at the California Superior Courthouses. The Family Law Facilitator offices are not part of the Department of Child Support Services. What if, after signing the Declaration of Paternity form, I think I am not the father? 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, what you have to do is much more difficult. Within 60 days of either you or the mother signing the form, there are specific things you need to do to cancel it. First, you cannot do it if you have been a party in a court case concerning the child that dealt with child support, visitation, or custody. However, if you are not a party in a court case that dealt with child support, visitation, or custody, you can sign a second form. This second form is called a Rescission of Paternity form. This Rescission of Paternity form 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. There is also a second possibility. If you are part of a court case dealing with the child before the 60 days since the signing of the Declaration of Paternity have passed, you cannot sign the Rescission form. But at that court proceeding you may ask the court to cancel the Declaration of Paternity. The court will then decide whether to cancel the Declaration of Paternity. The court will most likely order the mother, you, and the child to have genetic tests (DNA tests) to determine if you are the father of the child. 60 days have passed since the mother and I signed the Declaration of Paternity form. What can I do now that I think I may not be the biological father? After 60 days it is difficult to make it so a court or the child support agency will not treat you as the legal father of the child. To make it so you are not treated as the father you will have to go to court. There are a few situations in which the court will declare you not the father. For each of these possible situations there are time limits. These time limits may stop a court from even considering whether or not you are the father. It is best, if you can afford one, to seek the advice of a lawyer if you are unsure if you are the biological father in this situation. One of the possible reasons for canceling the Declaration of Paternity form is that you are not the biological father of the child. To claim this reason you must request that the court take a genetic test before the child is two years old. I received a document that claims I am the biological father of the child. Should I just skip the hearing because I know that I am not the father? No. If you do not respond to this paperwork you will likely be declared the father of the child and owe child support. You should respond by filing an answer denying paternity and requesting genetic (DNA) testing. An answer form will likely be part of the documents that claim you are the biological father and it is also available from the Family Law Facilitator office. Perhaps the best way to prove you are not the father is to get a genetic test. It is important that you show up at the courthouse on the date you are supposed to. I received a document that claims that I am the biological father of a child. What should I do? There are a few things you should do. First, the most important thing to do is "file" a legal document known as an "Answer" with the court within 30 days. An answer form will likely be part of the documents, you get in the mail that claim you are the biological father. An "answer" form is also available from the Family Law Facilitator office. Then you should serve a copy of your Answer on the other party and mail a copy to the Child Support Services Department. You must also show up at the courthouse on the dates you are supposed to. If you do not do either of these, this can result in an order declaring you the father of the child and an order to pay child support. This is called a default order. The Family Law Facilitator can help you complete the paperwork for filing an Answer. Family Law Facilitators are located throughout California in the state Superior courthouses and their services are free. The Office of the Family Law Facilitator is separate from the Child Support Services Department (formerly the District Attorney Bureau of Family Support Operation). It is important to remember that if you are unable to get help from the Office of Family Law Facilitator within the 30 days you should still follow the procedures outlined above. 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 if 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. You will then be ordered to take a genetic test (DNA test). This test is extremely accurate in determining if you are the biological father or not. If the test determines that you are not the father, then you will not be declared the father. If the test finds that you are the likely father, then the court will proceed to make a finding that you are the father and will order you to pay child support. Why would a mother force me to go through the legal process of establishing that I am the father? If the mother receives welfare she must help the government to establish the paternity of the child. She generally must cooperate in establishing who is the father of the child, or the government will not allow her to receive her benefits. Also, when you pay your current child support she most likely will only receive the first $50 of each monthly payment. The government will keep the rest of the child support you pay. There are many benefits for a child and parents in knowing who is the father of the child. For instance, this is necessary to get court-ordered child support. You will also only be able to ask a court for visitation with your child if you are declared the father of that child. If you should die your child will only get social security survivor's benefits if you have been declared the father of the child. What if I believe that I am a child's father, but the mother denies me access to my child? For you to have court-ordered visitation you must be declared the father of the child. If you have not been declared the father, you can file a request with the court to be declared the father. If you do not have an attorney for this matter, the Family Law Facilitator can help you fill out the paperwork to start a suit for paternity. The Family Law Facilitator offices are separate from the Department of Child Support Services (formerly the District Attorney's Bureau of Family Support Operations). You can also apply for services through the Department of Child Support Services. The Child Support Services attorney will not represent the mother or you; he or she represents the interests of the state of California. If you want visitation, you should first try to come to an agreement with the mother. The court must deal with the issue of visitation and custody only if you or the mother ask the court to consider it. If you and the mother cannot come to an agreement concerning custody or visitation, you should state this to the court. The court will then refer you to a mediation service to try to develop an agreement. It is important that you ask the court to write a visitation order, which clearly states where and when you can see your child. This will make it easier if disputes develop in the future. If a court declares me the father of a child, what will result? The court will order the non-custodial parent to pay child support. The court must consider issues of visitation and custody only if there has been a request for visitation by either the mother or you. There likely will need to be a separate hearing on the issue of visitation and custody. If you want visitation or custody you should ask the court to write a visitation order which clearly states where and when you can see your child. If you want visitation, you should first try working directly with the mother to come to an agreement. If you and the mother cannot come to an agreement concerning custody or visitation, you should state this to the court. The court will then refer you to a mediation service to attempt to develop an agreement. What are some of the legal benefits of me being declared the father of my child? Once paternity has been established, a man becomes the legal father of that child. He has all of the rights and duties of a father who was married to the mother. The child will be eligible for government dependent benefits and inheritance rights from you. Your name also can be listed on the birth certificate as the father of the child. You do not have a right to custody or visitation with your child. You do have a right to ask for custody or visitation in court. The Child Support Services Department cannot help a father get visitation or custody with the child. Once you are the legal father, you may go to court to ask for custody of or visitation with the child. You should ask the court to make an order that specifically says which days and hours you can be with the child. What are some of the legal consequences of me being the father of a child? If you are declared the legal father of a child and the child lives with the mother, you will have to pay child support. In addition, the court may order you to pay one-half of the uninsured health care costs for the children. A non-custodial parent can also be ordered to pay 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 Child Support Services Department sues you for child support you will receive a legal document called a "Complaint". With the Complaint should be another legal 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 and file an Answer. You can file an Answer without a lawyer. If you do not have a lawyer, the Family Law Facilitator offices will provide you help in responding to a lawsuit for child support. The Family Law Facilitator offices are separate from the Child Support Services Department (formerly the District Attorney's Bureau of Family Support Operations). The complaint will also have a suggested amount that you should pay as child support. This suggested amount is based on what the Child Support Services lawyer believes your income is. This proposed amount only becomes a child support order if you do not "file" an Answer and appear in court on the appropriate day. If you file an Answer and appear in court a judge will decide how much you owe based generally on the California child support guidelines and your actual financial situation. How does the court or local child support office decide how much child support I should pay? There are guidelines to determine the amount a non-custodial parent should pay for support. The guidelines take into account both parents' actual income, the amount of time each parent spends with the child, and the number of children that you have. The court will use a computer program, which contains the guidelines, to determine the amount of child support you owe. Can I be ordered to provide health insurance for my child? Yes. Parents must provide health insurance for their children when they do not live together. Either you or the mother must provide health insurance. You will only have to provide it if the insurance for your child is available to you at a reasonable cost through your employer. A court will determine whether the cost of the insurance is reasonable. The court will decide this based on all the evidence provided to the court. I pay my child support but the mother claims that she never gets any of the money that I send. What is happening? In some cases the mother does not receive all of the child support that you pay. If she receives certain forms of government assistance, the government generally keeps all but up to $50 of the child support you pay. However, if you do not pay child support there are many penalties that the government can apply against you. How old does my child have to be for me to not owe child support? You will generally owe child support until your child turns 18. If your child is still in high school, you will generally owe child support until the child is 19. If your child is disabled and cannot work, you may owe child support for longer. What if I cannot afford to pay the amount that is determined by the child support guidelines? You may ask that the court give you a child support order that is lower than the "guideline" amount. (The mother or state can also ask that you be given an order that is higher.) To do this you must convince a court that the guideline amount is unjust or inappropriate in your case. However, California courts generally follow the guidelines. The court will use a computer program, which contains the guideline, to determine the amount of child support you owe. There are only a few situations where 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. I do not earn a lot of money. Is there a way for me to not pay so much child support? One way to have your child support order match with your situation is if you qualify for a low-income adjustment. A low-income adjustment is possible if you have a net disposable income of less than $1,000 a month. To determine whether you can get 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 Superior courthouses in California. The Family Law Facilitator offices are separate from the Child Support Services Department (formerly the District Attorney's Bureau of Family Support Operations). If you qualify for a low-income adjustment, you can ask a court for this adjustment. The court will look at a number of factors to determine whether to give this adjustment. If the court gives you a low-income adjustment, the amount of support you pay will be less than what the guideline amount provides for non-custodial parents. 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 change in your child support order or ask for it when establishing the original order. What if I do not have a job when the court sets the amount of child support that I owe? One thing a judge may do is to order you to seek work. This will mean that you must try 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 child support. The child support amount will be based on what a court believes you could earn. The court is supposed to set an order based on what it believes you could earn, only if three factors are satisfied. First, the court must determine whether you are able to work. To decide this 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 whether you are willing 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 decides you should be able to earn money, it will base your child support order on what the court believes you could earn. A court may also require you to attend job training, job placement, or other work programs. What if I lose my job or I am unable to pay child support? If you lose your job or obtain a new job, you should tell the Department of Child Support Services or court immediately. You can ask the court for a smaller child support order. To do this you will need to fill out forms that you can get from the Family Law Facilitator. The Family Law Facilitator has lawyers or paralegals who have experience in family law matters. The lawyers 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 Child Support Services Department (formerly the District Attorney's Bureau of Family Support Operations). At a hearing, the court may change the amount of child support you pay. Asking a court for you to pay less child support does not mean that the court will allow you to pay less in child support. A court may also order you to try to get a job. Why do I owe so much money in child support? There are many reasons that the amount of money you owe can be larger than what you feel you are able to pay in child support. First, you may not have asked for a change in your child support order. If things have financially changed in your life you may need to ask for a change in your child support amount. This is the only way to be sure that the order reflects what you can pay. Second, the court may order you to pay half of the child care 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 owe your current support plus an additional amount to cover what you did not 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. (If a court changes your child support order you may want to ask them about this 10% interest and whether it will be charged in the future.) You may also be charged for:
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. When I ask the court to lower my child support what does the court look at? You should ask for a change of your support amount if your income is considerably reduced, the custodial parent's income increases a lot, or you spend more time with your child. It is very important to ask a court to change your child support amount as soon as possible. You may also ask the Child Support Services Department for a Review and Adjustment of the amount of your order. If you do not make the request or the court does not grant the request, you will still owe the full amount of support even though your situation has changed. If you cannot afford a lawyer for this matter, you may do this without a lawyer. California has created forms for parents who do not have lawyers who want to ask a court to change the amount of child support. The state also provides Family Law Facilitators at Superior 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 Office of the Family Law Facilitator is separate from the Child Support Services Department (formerly the District Attorney Bureau of Family Support Operation). Once you have followed the proper steps, a court will determine whether to change the amount of child support that you owe. If I ask for support to be lowered, could it be increased instead? Yes. Once you ask the court to change the amount of child support, the court can make it higher or lower. Is there another way besides going in front of a judge for me to lower the amount of child support that I am paying? Yes. The Child Support Services Department (formerly the District Attorney Bureau of Family Support Operation) may either lower or increase your child support order, if you meet certain conditions. You may ask the Department of Child Support Services for this help by sending a letter to the Child Support Services Department. In the letter you should request a Review and Adjustment. The Child Support Services Department will then file the legal paperwork with the court for a court hearing. After sending the letter, you should be sure that follow-up occurs on your request. If the Child Support Services Department denies your request or does not respond, you always can ask a court for a change in your child support. To do this you may seek the advice of a lawyer. If you cannot afford a lawyer for this matter, you may do this without one. California has created forms for parents who do not have a lawyer who want to file a request to change the amount of the award. The state also provides Family Law Facilitators at Superior courthouses in California that can help you to fill out the forms necessary for you to ask the court to lower the amount of support that you owe. The Family Law Facilitator offices are separate from Child Support Services Department. Once you have followed the proper steps, a court will determine whether to change the amount of child support that you owe. What should I do about my child support order if I am in jail? If you are placed in jail your child support order will continue while you are in jail. You will need to ask the court to make your child support amount less based on what you can earn while in jail or in prison. While this may be hard, it is extremely important that you try to do this. A court may only lower the amount of future child support that you owe. So it is very important that you notify the court immediately, provide proof that your income is less, and ask for the court to decrease your child support. If you do this, there is a chance that the court may reduce the amount of future payments. What are some possible penalties for me if I do not pay my child support? If you do not pay your child support there are a number of penalties the Child Support Services Department can use against you. Some of these penalties include:
You will also be charged 10% interest on any past-due support. (If a court changes your child support order you may want to ask them about this 10% interest and whether it will be charged in the future.) Can they put me in jail for not paying child support? Yes. The legal basis for placing you in jail is "contempt of court." Contempt of court is a legal term that means you are not following a court order. You also may be criminally prosecuted and imprisoned for not paying child support. Visitation and Custody How can I get custody or visitation with my child? If you want visitation, you can first try to discuss this with the mother to come to an agreement. If you and she come to an agreement, you can then go to court to formalize the arrangement to which you both have already agreed. You should ask to get an order that specifically says which days and hours you can be with the child. However, if you and the mother cannot come to an agreement, the agreement will likely have to be arrived at through the courts. You both may need a lawyer to insure that the court adequately hears both of your positions. California has created forms for parents without attorneys who want to file a request to have visitation or custody with their child. These forms may be obtained at your local California Superior 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. 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 often follows the recommendation of the mediator, the mediation is the most important part of the custody proceeding. The custodial parent does not allow me to see my kids. Why do I have to pay support? Child support and visitation are two separate issues. You must pay your child support regardless of whether you see your child. The only exception to this rule is in an extremely rare set of circumstances. If you have been declared the legal father of the child and do not have visitation with your child, you can try to get a court order for visitation. If there is a visitation schedule and the child's mother does not follow it, you can petition for mediation of the issue. The date for mediation of the dispute shall be set for not more than 60 days after you file the petition. If you do not have a lawyer for this matter, the Family Law Facilitator can help you to fill out the necessary paperwork to ask a court for visitation. The Office of the Family Law Facilitator is separate from the Child Support Services Department (formerly the District Attorney Bureau of Family Support Operation) or child support enforcement. This may be a very difficult and sometimes frustrating process, but it is possible that it can help you get consistent visitation with your child. How does not paying my child support impact my right to see my child? Your not paying child support should not affect whether you see your child. When faced with the question of whether or not to allow you to see your child, a court should only be concerned with the best interest of the child. Still a court may be less likely to give you visitation if you do not pay your child support. There are many penalties that may be applied to you for not paying child support. Some of these penalties include:
You will also be charged 10% interest on any past-due support. |
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