If you have a child, or children in California, and you are involved in either a paternity or dissolution action, one of the more common items litigated is child custody and visitation. Like anything, child custody and visitation does not have to be litigated, but in the absence of an agreement, such matters usually are discussed before the Court. When child custody and visitation are being litigated, the companion motion that is usually filed either separately or at the same time is a motion for child support.
The reason that this occurs is that child custody and child support are linked, meaning that the amount of support a party pays is directly attributable to the amount of time they spend with the child or children; and their amount of monthly income. Unlike determinations of child custody and visitation, which must be adjudicated before the Family Court, child support can be litigated in either the Family Court, or in the Department of Child Support Services (“DCSS”). Under California law, DCSS is the agency that is responsible for among other things, establishing and maintaining support orders, and collecting and processing child support payments.
Determining what forum to litigate in for child support can at times be a complex question. A party may have addressed many matters involving their case with their Family Court Judge assigned to their case and may be leery of entering a new department with a new judicial officer who does not have the background and familiarity with their case. However, in many cases, either because a party will not pay, cannot pay, or is paying irregularly on a child support order, a party will want to engage the assistance of DCSS in enforcing the order. Similarly, in some cases, both parties elect to have the child support monitored, collected, and enforced by DCSS in order that a concrete record of payments exists for both sides.
With regard to DCSS, it is also relevant to note that as a state agency, they have the power to take a number of actions with regard to non-paying parties who owe child support, including, but not limited to wage assignment, and suspension of driver’s licenses. While DCSS does an excellent job enforcing Court orders and entering child support orders, a party who is in Family Court, but then elects to have DCSS handle this aspect of their case may find that the decision has other consequences. For example, by electing to proceed in a second forum, additional costs will be imposed on both sides by having to litigate in a new Court, and at times, at additional delays may occur.
A common problem in this respect is that a party who either has temporary custody orders, or is seeking modification of such orders may see the DCSS action continued until final custody orders are entered either in the action, or on the motion before the Family Court. While child support is retroactive to the date of the filing of the motion at DCSS, there can be delays in collecting the support while the matter is litigated in both forums. Correspondingly, a party who has the option to choose between whether the support question is litigated in Family Court, or DCSS should consider all of the relevant facts in their case before making a decision on which forum they want to proceed in. If you have questions about child support, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today with any child support questions you may have.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.