After a brief detour last week, here is my next installment in my series on child support. Many of you out there owe some child support arrears. Many of you have a court order for child support, but the other parent just won’t pay. There are some parents who spend more than half their waking hours devising ways to outrun their child support obligation. There are others who obsessively chase after that child support scofflaw at the expense of their happiness, sanity and their own parent-child relationship.
I have represented clients whose exes owe them over a quarter million dollars in back support. Support arrears in the tens of thousands of dollars are not at all uncommon. If you’re the parent whose struggling to make it with your job, with your kids in daycare, and with a parent who just doesn’t help, you’ve come to the right place. This blog will point you toward some resources that will help you to get paid.
WHAT NOT TO DO: WITHHOLD VISITATION WITH THE OWING PARENT:
I’d like to start off with a mistake that many parents make when the other parent doesn’t pay. It’s tempting, as the custodial parent, to say, “hey, if he’s not stepping up to the plate he shouldn’t get to see his kids.” This is a mistake because the courts are careful to separate the child custody issues from the financial issues. The courts see the parenting plan as a child-focused way to have both parents involved in the child’s life. Judges and custody mediators believe that it’s good for children to have access to both parents.
In fact, if you have a case going with the Department of Child Support Services, the regular family law judge will not even hear the child support issues. Child support will be heard separately in the “support division,” a separate arm of the Superior Court devoted to cases being enforced by the Department of Child Support Services.
The family law judge, charged with deciding the child custody and visitation issues, is not interested in who’s financially better off or who is paying or not paying the support. Raising the financial issues during a custody hearing can actually damage your custody case by making you look less “child focused” in the court’s eyes.
THE DEPARTMENT OF CHILD SUPPORT SERVICES IS YOUR ALLY IN COLLECTING BACK CHILD SUPPORT
The Department of Child Support Services (“DCSS”) is a government agency whose sole reason for being is collecting child support. An application to establish a DCSS case can be made and submitted online. Your case will be assigned to a case worker who will collect information and investigate the parties’ earnings. (Note: all links in this blog are for San Diego County. Google your local county for its DCSS application.)
When you initiate a DCSS case, you will assign your right to receive child support to the county where you live, and that county will file a petition and a motion before the support division court to either initiate, modify or enforce your child support order. Once the judge issues a support order, DCSS will take care of issuing the wage assignment or garnishment of the payor’s wages, known as an “income withholding order.” DCSS can also request that the payor’s driver license be suspended pending the payment of arrears, and can even file a request that contempt of court charges be filed against the delinquent party. The judge has the power to punish willful non-payment of support with 5 days in jail for each missed payment, known as a “count.”
A child support order has the effect of a “judgment” by the issuing court. For each payment missed, the court tacks on annual interest of 10 percent, known as “post judgment interest.” That’s why child support debt is so bad—it carries a very high interest rate, and to boot, it’s not discharable in bankruptcy.
In conclusion, while you’re killing him/her with kindness on the child custody front, you can still use DCSS as a took to get what you need from him/her. Until next time,
Love your family,
Protect your finances, and
Reach for your future!
Thomas D. Ferreira, Esq.