Re: They are gonna tell you joint custody no matter what...
grandpabri said:
I have a 64-36 split in my favor and still have joint physical. I wouldn't get too hung up on that.
Now according to a family member I have who works in the family law facilitators office, unless there is a 10% change in some aspect of the guideline, the court doesn't really like to re-figure.
My response:
I am in complete agreement with "grandpabri". Very good comment, and accurate.
I'm not sure I understand "Legally Blonde1" concerning some 3-year Rule when it comes to Child Support modifications. The only deterrent that I'm aware of concerns whether there has been a "material change in circumstances" affecting the child. And, that material change can occur at any time, no matter when the previous order was signed. As children's needs increase, so to shall the amount of support for them - - and 3 years between changes is not a consideration.
While parenting time is a consideration, there are no rigid rules on what alterations in the parties’ affairs or other factors will constitute a "material change of circumstances" sufficient to warrant a reconsideration of a prior child support order. In general a change of circumstances may be anything that affects the financial status of either party. [In re Marriage of Catalano (1988, 1st Dist) 204 Cal App 3d 543, 251 Cal Rptr 370; In re Marriage of Hoffmeister (1984, 1st Dist) 161 Cal App 3d 1163, 208 Cal Rptr 345] A determination regarding whether a modification in a support award is warranted will be upheld in the absence of an abuse of discretion. [In re Marriage of Kepley (1987, 1st Dist) 193 Cal App 3d 946, 238 Cal Rptr 691; Philbin v Philbin (1971, 2nd Dist) 19 Cal App 3d 115, 96 Cal Rptr 408] An individual case-by-case determination is required.
In determining the amount of a child support order, the court must consider the needs of the child and the ability of both parents to provide for them. [Philbin v Philbin (1971, 2nd Dist) 19 Cal App 3d 115, 96 Cal Rptr 408] While historically courts had broad discretion to fashion child support orders, the trend has been to impose more and more strictures on the exercise of judicial discretion. Fam C §4055 establishes a guideline support formula under which child support awards are based on the net monthly disposable income of both parents and the custody time-sharing arrangements.
However, the determination of child support is not as mechanical a process as the statutory formula might suggest. Elements of discretion remain in the determination of income, and the court may depart from the formula under specified circumstances, including when "[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case." [Fam C §4057(b)(5)]
A change in income, in custody time-sharing arrangements, or a change affecting any of the circumstances that permit the court to deviate from guideline support calculations should constitute a change of circumstances permitting a modification of support. [See Fam C §4057 (describing the factors permitting rebuttal of the presumptive guideline support amount), and Fam C §§4058, 4059 (describing the computation of annual gross income and net disposable income)] Nevertheless, in the absence of a finding by the trial court that one of the special circumstances prescribed by statute applies, child support must be ordered in accordance with the guideline formula. [In re Marriage of Carter (1994, 1st Dist.) 26 Cal.App.4th 1024, 1028–29, 33 Cal.Rptr.2d 1]
The published cases generally support the view that any change of circumstances materially affecting the ability of a parent to pay support or the needs of the child can serve as a basis for modification of an order. However, the published decisions do not address the panoply of modification requests commonly encountered in family courts, and recent statutory changes have left the law somewhat unsettled. Generally, the following situations will support a finding of changed circumstances.
The needs of the child will also a factor in determining the amount of child support. Measurement in needs in relationship to parental standard of living will be considered. It is the rule with respect to spousal support that an increase in support requires not only a showing that the obligor’s income has increased but that the supported spouse’s needs have increased since the last award or, if not, were not met under the prior award and continue to be unmet. Further, needs must bear some relationship to the standard of living of the parties during their marriage, and not the standard of living of the supporting spouse at the time of the modification hearing. [In re Marriage of Hoffmeister (1987, 1st Dist) 191 Cal App 3d 351, 236 Cal Rptr 543]
The rule is otherwise with respect to child support. The law mandates that child support be set and modified with the living standards of both parents in mind at a level beyond the bare necessities of life if possible. A child’s "need" for more than the bare necessities thus varies with the parents’ circumstances. [In re Marriage of Catalano (1988, 1st Dist) 204 Cal App 3d 543, 251 Cal Rptr 370] The "needs" of the child are thus variable, fluctuating with the change in the parents’ standard of living. A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. [Fam C §4053(a)] If the noncustodial parent enjoys a marked increase in his or her standard of living, changed circumstances are established and the support order must be modified to reflect the increase.
It is of no consequence that the custodial parent is incidentally benefited by the increase. [Fam C §4053(f)] Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. [See Re Marriage of Aylesworth (1980, 2nd Dist) 106 Cal App 3d 869, 165 Cal Rptr 389 (order for $3,600 monthly child support for four children upheld, in light of supporting father’s monthly after-tax income of $22,500 despite a practical inability to distinguish between the children’s and the mother’s lifestyles), and White v Marciano (1987, 2nd Dist) 190 Cal App 3d 1026, 235 Cal Rptr 779 (father with gross yearly income of $1 million ordered to pay $1,500 a month for baby living in modest apartment with mother who made $14,000 a year)]
Nevertheless, the Family Code recognizes that guideline support may exceed the needs of the child. Fam C §4057(b)(3) provides that the presumption that guideline support is correct may be rebutted where the parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. [See also In re Marriage of Katz (1988, 2nd Dist) 201 Cal App 3d 1029, 247 Cal Rptr 562 (court may order payment of amounts necessary to provide support; statutes do not appear to be aimed at insuring that children are provided with luxurious lifestyles)]
IAAL
