Legal and physical custody is defined below by California Family Code Section 3020, which is provided below for your review.
“3020. (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011. (c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.”
A child support order is separate from a child custody and visitation order. So you cannot refuse to let the other parent see the children just because she or he is not paying the child support s/he owes. And, you cannot refuse to pay child support just because the other parent is not letting you see your children.
But, child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support.
How is child support calculated?
California has a statewide formula (called a "guideline") for figuring out how much child support should be paid.
If parents can't agree on child support, the judge will decide the child support amount based on the guideline calculation.
The guideline calculation depends on:
How much money the parents earn or can earn,
How much other income each parent receives,
How many children these parents have together,
How much time each parent spends with their children,
The actual tax filing status of each parent,
Support of children from other relationships,
Health insurance expenses,
Mandatory union dues,
Mandatory retirement contributions,
The cost of sharing daycare and uninsured health-care costs, and
Child support can also include the cost of special needs like:
Traveling for visitation from 1 parent to another,
Educational expenses, and
Other special needs.
Can parents agree on a different support amount? An amount other than the guideline amount?
Parents can agree on a "non-guideline" support amount if they:
Know fully their child support rights,
Know the guideline child support amount,
Are not pressured or forced to agree to this child support amount,
Are not receiving public assistance,
Have not applied for public assistance,
Think that the child support amount is in the best interest of the child(ren), and
Have a judge approve the amount of child support payments.
ALERT! If your agreement changes a child support order and 1 of the parents gets public assistance, the local child support agency must sign the agreement before you file it with the court. The local child support agency must also sign the agreement if it is enforcing (collecting) the support order.
Do I have to have health insurance for my child?
Parents must have health insurance for their children if it is available for free or at a reasonable price.
When can a child support amount be changed?
You can ask for a change in your child support amount when there is a change in circumstances. For example, if you change the amount of time you spend with your child, you ask for a change in your child support.
If the judge ordered a child support amount below the guideline amount, you can ask to change that amount at any time. A change in circumstances is NOT required.
Before you decide to ask for a change in child support, it is a good idea to re-calculate the amount of child support in your case to make sure it is worth it for you to go back to court. To estimate how much child support the judge may order in your case, check the California Guideline Child Support Calculator. Remember, this calculator only gives you an estimate. The amount the judge orders you to pay may be different based on information from the other parent or other factors that affect child support.
When does court-ordered child support end?
Court-ordered child support usually ends when the child:
marries or registers a domestic partnership,
turns 18 and is not a full-time high school student, or
whichever occurs first.
Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting.
We already have an order for child support, but I think the other parent's income has changed since then. Should I just file a motion to go to court?
You should give a lot of thought to all the facts in your case before you decide to file a motion to change a child support order. The results can be different than what you expected. If you file a motion to go to court, but it turns out that you are incorrect-and the other parent's income has gone down-the court can make an order that will benefit the other parent. For example, if you are the one paying support, the amount you pay may actually increase if the other parent's income went down. If you are the one receiving support for the child, the support may go down if the other parent's income decreased.
How do I find out whether the other parent's income has gone up-or down?
If you have a judgment in your case (your divorce has been completed, or there is a Judgment of Paternity), you can have someone serve a Request for Production of an Income and Expense Declaration After Judgment (form FL-396) on the other parent, along with an Income and Expense Declaration (form FL-150). The other parent who receives the request must fill out the Income and Expense Declaration and return it within 30 days after it was served. At the same time, the other parent must also send a copy of his or her most recent state and federal tax returns. Please note that this form must be served by someone who is not a party to your case and who is over the age of 18 years; you cannot serve it yourself.
I had someone else send the other parent a Request for Production of an Income and Expense Declaration After Judgment and an Income and Expense Declaration. I never received anything back at all. What can I do now?
If you have not received a response after 35 days, or if the Income and Expense Declaration does not have complete wage information, you can send the other parent's employer a Request for Income and Benefit Information from Employer (form FL-397). You can set the date by which the employer must send you the information, but you must allow at least 15 days. You must also send a copy of this form to the other parent. The employer and the other parent must be served by certified mail, postage prepaid and return receipt requested. Or, you can have it personally served on the employer and the other parent by someone who is not a party to your case and who is over the age of 18 years.
How are spousal and partner support (alimony) calculated?
You can ask for spousal or partner support to be paid while your case is going on. This is called a "temporary spousal support order" or a "temporary partner support order." Many counties have formulas for calculating the amount of a temporary spousal or partner support order.
The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case (called the "final judgment").
When the judge makes his or her final order, the judge must consider the factors in California Family Code section 4320.
These factors are:
The length of the marriage or domestic partnership,
What each person needs,
What each person pays or can pay (including earnings and earning capacity),
Whether having a job would make it too hard to take care of the child(ren),
The age and health of both people,
Debts and property,
Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license,
Whether there was domestic violence in the marriage or domestic partnership,
Whether 1 spouse's, or domestic partner's, career was affected by unemployment, or by taking care of the children or home, and
The tax impact of spousal support (note: federal and state tax laws were not changed to recognize domestic partnerships.)
How are spousal and partner support taxed?
Usually, spousal support is tax deductible for the paying spouse and taxable income for the supported spouse.
Federal and state tax laws were not changed to recognize domestic partners. These laws can be very complicated, and it is important to talk with an attorney or accountant who is knowledgeable in this area, and about income, property, and other taxes.
When do spousal and partner support end?
Spousal and domestic partner support usually end when:
A court order or judgment says it ends,
1 of the spouses or domestic partners dies, or
The person getting the support remarries or registers a new domestic partnership.
Can I get child support for the time before the child support order?
If you don't get public assistance, you may get child support from the day that you filed your case asking for child support. To get support from this date, you must serve the other parent within 3 months after you file your case.
The judge may also award child support starting from the date of the hearing, the date the other parent was served, or another date depending on the facts in the case.