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Author Topic: CHILD SUPPORT ?? IN CA  (Read 1401 times)

mishelle2

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CHILD SUPPORT ?? IN CA
« on: Jan 19, 2006, 02:34:16 PM »
Soc,

   my fiance and I have been together for 12 years we have 3 children (11,6,5 months) he has 2 other children from 2 previous relationships. He is going through child support modification for one of them and had the other modified about a year ago (mother requests) during that hearing judge would not allow any hardship deductions for our 3 children, judge said "looks like there mother makes enough to support them" child support takes 50% of net income via wage assignment as there are arrears and he currently pays 200+ above guideline, my ?? 's  are since we are not married..

1. If judge will not take into account his 3 children in home, can I turn around and file a motion to receive child support for my kids?

2 If no .. Why?

3. Could I get into trouble?

just curious.

thanks for  your time... I realize this is probably an odd one.. :)



socrateaser

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RE: CHILD SUPPORT ?? IN CA
« Reply #1 on: Jan 19, 2006, 05:32:31 PM »
>1. If judge will not take into account his 3 children in home,
>can I turn around and file a motion to receive child support
>for my kids?

If this were a real adversarial action, your fiance would argue that you have no right to support because he is still supporting the children directly, as they are living in his home, and eating his food, taking his clothing, etc. And, that would be a winning argument.

>2 If no .. Why?

Answered.

>
>3. Could I get into trouble?

You mean if you were to just petition for support and provide a different residence address for yourself vs. your fiance, and your fiance went along with the...hmmm, what would you call it when you go into court and falsify a declaration of facts? Fraud on the court...yeah, that's it!

I can't advise you to defraud the court.

But, as a practical matter, if you were to file such a petition, and your fiance were to agree to the fraud, and then you were to both stipulate to an order for support in the child's best interests, and move the court to enter the order, more than likely the court would enter the order, and then that order would have to be given equal consideration as any of the other support orders which currently exist against your fiance.

That is, unless one of the other parents who would be subject to the priority of this new order were to challenge it and then prove that you had defrauded the court. Then, in that case, you could get in a great deal of trouble.

So, it all depends. Anyway, now that you know how to do it -- the rest, and the risk, is up to you.

mishelle2

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RE: CHILD SUPPORT ?? IN CA
« Reply #2 on: Jan 19, 2006, 07:27:46 PM »
What I dont understand is..


1. how can a court say that you have to pay support for some of your children but they will not take into consideration the children you have in your home?( this doesnt seem legal to me)

2. Is there a state code that says the courts must consider the other children?

3. I know the hardship deduction is there but isnt it optional at the judges discretion?


thanks, I am just really frustrated how a court can say.. hey you have to pay support here. and there,, but we wont consider the needs of the children you have in your home.

thanks.. again





























socrateaser

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RE: CHILD SUPPORT ?? IN CA
« Reply #3 on: Jan 19, 2006, 09:11:46 PM »
>What I dont understand is..
>
>
>1. how can a court say that you have to pay support for some
>of your children but they will not take into consideration the
>children you have in your home?( this doesnt seem legal to me)

The court considered your children. The judge determined that no deviation from the guideline was fair under the circumstances of the case.

If you want to argue that the judge is denying your children equal protection of the law under the 14th Amendment, as applied, because all of your fiance's children should be entitled to the identical amount of support from your fiance, well, that's an interesting argument, and it may be true, but the first thing you'll need to do is prove that the amount of disposable income available to each of children in your new family is less than that which is being paid out to each of the children from the old relationships.

This is not an impossible calculation, you could apply the same calculation that the court would have used to determine your fiance's obligation were you receiving support, after subtracting the amount paid to the children of the othe relationships and if the number comes out as less than what he is actually paying for the old relationships, then you would reduce the amount of support to the new relationships until the number comes out equal, and that would be the functional amount due for an equal protection argument.

Unfortunately, this is not the sort of argument that a court will allow a pro se litigant to offer, because attorneys don't think that laypeople understand how the Constitution works, and in general they're right (because most attorneys don't appear to understand how the Constitution works, even after 20 years of practice).

Anyway, making this case is an uphill battle, and your kids will be old and gray by the time you win -- if you win.

>2. Is there a state code that says the courts must consider
>the other children?

No, but there is a code section (FC 4071) that says that the court "may" consider it if you can prove extreme financial hardship supporting the children of your new relationship.

>
>3. I know the hardship deduction is there but isnt it optional
>at the judges discretion?

Yes, it is. Most of the time, pro se litigants don't understand what they must prove in order to get the judge to even consider the matter.

"Extreme financial hardship" means you're underwater, i.e., you can't pay the rent, or buy food or clothing, and if the court doesn't modify support, you will shortly be on the street.

If you can prove this, then you'll get your deviation from the State Uniform Guidelines...otherwise, you won't.

mishelle2

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RE: CHILD SUPPORT ?? IN CA
« Reply #4 on: Jan 19, 2006, 07:27:46 PM »
What I dont understand is..


1. how can a court say that you have to pay support for some of your children but they will not take into consideration the children you have in your home?( this doesnt seem legal to me)

2. Is there a state code that says the courts must consider the other children?

3. I know the hardship deduction is there but isnt it optional at the judges discretion?


thanks, I am just really frustrated how a court can say.. hey you have to pay support here. and there,, but we wont consider the needs of the children you have in your home.

thanks.. again






























socrateaser

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RE: CHILD SUPPORT ?? IN CA
« Reply #5 on: Jan 19, 2006, 09:11:46 PM »
>What I dont understand is..
>
>
>1. how can a court say that you have to pay support for some
>of your children but they will not take into consideration the
>children you have in your home?( this doesnt seem legal to me)

The court considered your children. The judge determined that no deviation from the guideline was fair under the circumstances of the case.

If you want to argue that the judge is denying your children equal protection of the law under the 14th Amendment, as applied, because all of your fiance's children should be entitled to the identical amount of support from your fiance, well, that's an interesting argument, and it may be true, but the first thing you'll need to do is prove that the amount of disposable income available to each of children in your new family is less than that which is being paid out to each of the children from the old relationships.

This is not an impossible calculation, you could apply the same calculation that the court would have used to determine your fiance's obligation were you receiving support, after subtracting the amount paid to the children of the othe relationships and if the number comes out as less than what he is actually paying for the old relationships, then you would reduce the amount of support to the new relationships until the number comes out equal, and that would be the functional amount due for an equal protection argument.

Unfortunately, this is not the sort of argument that a court will allow a pro se litigant to offer, because attorneys don't think that laypeople understand how the Constitution works, and in general they're right (because most attorneys don't appear to understand how the Constitution works, even after 20 years of practice).

Anyway, making this case is an uphill battle, and your kids will be old and gray by the time you win -- if you win.

>2. Is there a state code that says the courts must consider
>the other children?

No, but there is a code section (FC 4071) that says that the court "may" consider it if you can prove extreme financial hardship supporting the children of your new relationship.

>
>3. I know the hardship deduction is there but isnt it optional
>at the judges discretion?

Yes, it is. Most of the time, pro se litigants don't understand what they must prove in order to get the judge to even consider the matter.

"Extreme financial hardship" means you're underwater, i.e., you can't pay the rent, or buy food or clothing, and if the court doesn't modify support, you will shortly be on the street.

If you can prove this, then you'll get your deviation from the State Uniform Guidelines...otherwise, you won't.

 

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