Child Support and Visitation modifications. sorry, kind of long

[SadStepMom]

Hi Soc,

The case is in CA.

DH's divorce decree was not well written, and does not follow CA child support quidelines.  Officially they have joint physical and legal custody with visitation to be agreed upon.  So as I am sure you know, it isn't worth the paper it is written on.  

The ex has good reason to not want DH to see the kids.  As it is written, she has to have them in her care for over 30 days straight for her to get child support for the month.  So for the past 5 years, she has never agreed to let DH have them for an over night, and has moved them to keep DH from being with in distance for easy access.  

Last year we finally had the money and knowledge to try and get things changed, but had to put things on hold because she had the case moved.  During that time, I lost my job and was unemployed for a year, so we weren't able to pursue action at that time.

Though things didn't go forward last year, we do know one of the ex's excuses for not wanting DH to see the kids is that she claims DH only wants to see the kids so he doesn't have to pay child support.  (which is not true)

I am assuming that if DH were to try and file a modification of visitation, exs first arguement would be that he is doing it to try and get out of paying support, and then she would file for an increase in support.

So here is what I was thinking.  First have DH request a modification of child support.   From the calculations I have done, going by CA guidelines using 0% parenting time he would only pay slightly more than what he is now.  This would get rid of one of her incentitives to not let DH see the kids.  Also, it would eliminate the argument that he only wants to see the kids to reduce child support.

Then we would file to have visitation changed.   Basically we would only expect to get a few weeks in the summer and have provisions for DH being able to see them if he can visit down there for a long weekend or two during the year.  To us, even though it is just a few weeks, it would be a major improvement.  Additionally, the increase in time wouldn't be significant enough to then go back and change child support again.  So the ex shouldn't be able to use DH not wanting to pay child support as his reason for the modification.

1)  Is this a reasonable course of action or am I way out there in my thinking?

2)  BM is either not working, or working part-time.  When calculating mom's income, will they at least put her at minimum wage for 40 hours?

3) DH is hourly.  He works 44 hours a week.  When doing his income, do they include the extra 4 hours or would it be calculated at 40 hours?

4) DH started working nights (not by his choice) 3 weeks ago.  This includes a shift differential, would that be included in his income.  Working nights may last a month, a year, 10 years, we have no idea.

Thanks for your time!

[socrateaser]

>1)  Is this a reasonable course of action or am I way out
>there in my thinking?

It's reasonable, but I don't know if you have grounds for a custody mod, because you haven't given me sufficient facts. First, I'd need to read the exact text of the existing order, to determine if there's been a substantial change in circumstances, and I'd need to know if it was stipulated to and written without attorneys.

>
>2)  BM is either not working, or working part-time.  When
>calculating mom's income, will they at least put her at
>minimum wage for 40 hours?

Yes, unless there are circumstances that show it in the best interest of the child(ren) that the mother to be available to the children, rather than working (physical/mental disabilities, etc.).

>
>3) DH is hourly.  He works 44 hours a week.  When doing his
>income, do they include the extra 4 hours or would it be
>calculated at 40 hours?

He cannot be forced to work the extra four hours. But, if he does on a regular basis, then he must pay based on the extra hours.

>
>4) DH started working nights (not by his choice) 3 weeks ago.
>This includes a shift differential, would that be included in
>his income.  Working nights may last a month, a year, 10
>years, we have no idea.

Child support is prospective in nature. If you can show that the current working eviron will change shortly, then the court will use the environment that will exist. Otherwise, the court will use your actual working conditions existing at the time of hearing.