Wednesday, August 11, 2010
Friday, July 2, 2010
Determining Child Support in California
Many parents do not understand the method of computation of the amount of child support under California’s statewide guideline. In the wake of the current economic climate in California, parents are struggling with job loss, layoffs and the daily devaluation of their homes. Some may not only be dealing with the breakdown of the family unit but they are suffering a devastating financial collapse that is leading their properties into short sales and foreclosure. Simply put, today’s parents need to better understand the method of computation of their child support obligations so they can better meet these obligations against the backdrop of an uncertain economy.
California Family Code Sections 4050-4076, detail our statewide child support guidelines. On or after July 1, 1992, the legislature determined that all child support orders in our state were to be determined under statewide uniform child support guidelines. These guidelines apply in any judicial or administrative proceeding for child support. There is also case authority in our state providing these guidelines also apply to the support of minor children and any adult disabled child. (In re Marriage of Drake (1997), 53 Cal. App. 4th 1139, 1163, 62 Cal. Rptr. 2d 466.
Legislative Intent Behind The Guidelines:
The actual intent behind California’s child support guideline can be found in Family Code Sections, 4050, 4052 and 4053. Not only must California Courts follow federal regulations for determining the guideline amount of child support, the legislature has set out additional factors for California courts to follow.
California Family Code Section 4053 states as follows:
“4053. In implementing the statewide uniform guideline, the courts shall adhere to the following principles:
(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.
(d) Each parent should pay for the support of the children according to his or her ability.
(e) The guideline seeks to place the interests of children as the state's top priority.
(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes.
(h) The financial needs of the children should be met through private financial resources as much as possible.
(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.
(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
(l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states. “
Court’s Discretion To Deviate From The Guideline Amount of Support:
California Family Code Section 4057 indicates the guideline amount of child support, once established, is presumed by the court to be the correct amount of child support to be ordered. However, Family Code Section 4057 also states that the presumption can be rebutted. Plainly stated, evidence may be introduced in court showing that the application of the formula would be “unjust” or “inappropriate” in any given case. However, evidence that is introduced to rebut the guideline amount of child support is rebuttable by specific statutory factors that can be found in California Family Code Section 4057(b). Some of these factors can include the following, (1) the parties stipulated to a different amount of child support under subdivision (a) of Section 4065; (2) the parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children; (3) a party is not contributing to the needs of the children at a level commensurate with that party's custodial time, (4) application of the formula would be unjust or inappropriate due to circumstances of a particular case (i.e., parents have different time share arrangements for different chidren, parents have substantially equal time share and one parent has much lower or higher percentage of income used for housing when compared to other parent, or cases where children have special medical or other needs that could require child support that would be greater than formula amount.
California Case Law: Termination of De Facto Parent Status - Juvenile Court
CHILD PROTECTION CALIFORNIA: In re D.R.
The Court of Appeal of California, First Appellate District, Division Four, affirmed the juvenile court’s orders denying appellant-Alameda County Social Services Agency’s motion to terminate the de facto parent status of the respondent-uncle, and granting respondent-uncle’s partner de facto parent status. The court of appeal held that the agency had standing to appeal the orders because it stood in loco parentis to the minor child; the juvenile court did not commit legal error by concluding that respondent-uncle’s corporal punishment of the child did not require mandatory loss of his de facto parent status; the juvenile court did not abuse its discretion in finding insufficient changes in respondent-uncle’s relationship with the child to warrant termination of de facto parent status, and; the juvenile court acted within its discretion when it granted respondent-uncle’s partner de facto parent status. Under the California Supreme Court’s decision In re Kieshia E., a non parent may not obtain de facto parent status if the juvenile court determines that the minor is dependent due to sexual abuse or severe physical abuse committed by the nonparent petitioning for de facto parent status. Here, respondent-uncle was not trying to obtain de facto parent status, as he had been the child’s de facto parent for many years, and the present dependency hearing was not caused by respondent-uncle’s corporal punishment of his nephew, but rather by the child’s birth parent who failed to provide for him. Therefore, terminating his de facto parent status was not appropriate.
Cite: No.A124573, 185 Cal. App. 4th 852, 2010 Cal. App. LEXIS 889 (Cal. Ct. App. June 15, 2010)
Link to Full Opinion
The Court of Appeal of California, First Appellate District, Division Four, affirmed the juvenile court’s orders denying appellant-Alameda County Social Services Agency’s motion to terminate the de facto parent status of the respondent-uncle, and granting respondent-uncle’s partner de facto parent status. The court of appeal held that the agency had standing to appeal the orders because it stood in loco parentis to the minor child; the juvenile court did not commit legal error by concluding that respondent-uncle’s corporal punishment of the child did not require mandatory loss of his de facto parent status; the juvenile court did not abuse its discretion in finding insufficient changes in respondent-uncle’s relationship with the child to warrant termination of de facto parent status, and; the juvenile court acted within its discretion when it granted respondent-uncle’s partner de facto parent status. Under the California Supreme Court’s decision In re Kieshia E., a non parent may not obtain de facto parent status if the juvenile court determines that the minor is dependent due to sexual abuse or severe physical abuse committed by the nonparent petitioning for de facto parent status. Here, respondent-uncle was not trying to obtain de facto parent status, as he had been the child’s de facto parent for many years, and the present dependency hearing was not caused by respondent-uncle’s corporal punishment of his nephew, but rather by the child’s birth parent who failed to provide for him. Therefore, terminating his de facto parent status was not appropriate.
Cite: No.A124573, 185 Cal. App. 4th 852, 2010 Cal. App. LEXIS 889 (Cal. Ct. App. June 15, 2010)
Link to Full Opinion
Judicial Council Changes To California Adoption Forms / Tribal Customary Adoptions
Effective July 1, 2010, the Judicial Council of California has implemented newly revised forms for adoption procedures in the State of California. These form changes include revisions to the petition used to file an adoption in California (ADOPT-200), as well as the Adoption Agreement (ADOPT-210) and the Adoption Order (ADOPT-215). The reason for the changes are to accommodate recent legislation in California allowing traditional forms of adoption practiced by tribes to be recognized by California courts as an addition to traditional permanency options currently available in California. It appears that this legislation is the first of its kind in the U.S., as Governor Arnold Schwarzenegger signed into law Assembly Bill 1325, permitting "tribal customary adoption" for American Indian children in foster care, on October 11, 2009. The changes made to the California adoption forms reflect the enactment of this legislation in California. According to the new legislation, Tribal Customary Adoptions will not require the termination of parental rights. Under current California law, once reunification services are exhausted, courts tend to give preference to terminating parental rights. Tribal Customary Adoptions creates a more culturally appropriate option for providing American Indian children in foster care a permanent home without compelling the termination of parental rights, a more culturally appropriate option. Further, a California Tribal Customary Adoption order will now "have the same force and effect as an order of adoption." For more on this landmark legislation, please see article entitled, "Tribal Customary Adoption, Tribal Alert, RE: TRIBAL CUSTOMARY ADOPTION PASSED INTO CALIFORNIA LAW, dated January 8, 2010, at www.calindian.org/alerts/62-2010-alert/99-triabl-customary-adoption. For more information about recent changes to California adoption forms, please visit, www.courtinfo.ca.gov/forms, or contact our office for a free initial consultation or for assistance with your adoption at (323) 655-2105.
HELP Legislation Introduced To Protect Children During ICE Raids
On June 22, 2010, U.S. Senators, Al Franken (D-Minn.) and Herb Kohl (D-Wisc.) introduced legislation intended to better protect children in the United States during Immigrations and Customs Enforcement (ICE) raids. According to ECM Publishers, in their web article entitled "Franken, Kohn introduce HELP Separated Children Act," the U.S. Customs and Immigration Service reported 108,434 parents of U.S. citizen children were deported in the past 10 years. Unfortunately, these children are often left behind to fend for themselves in the United States without their parents and are effectively abandoned without sufficient safeguards to protect them while their parents are in detention. For more information on this legislation, please see the article, "Franken, Kohn introduce HELP Separated Children Act," published by ECM Publishers, Inc. at www.hometownsource.com.
Tuesday, June 8, 2010
Wednesday, June 2, 2010
South Korean Court Rules That Cryopreserved Embryos Are Not "Life Forms"
In the debate over the legal status of frozen embryos left over from fertility treatment, it would appear that a South Korean court has ruled that "human embryos left over from fertility treatment are not life forms and can be used for research or destroyed." For more information, please read the USA Today article, dated May 28, 2010, located at: http://content.usatoday.com/communities/Religion/post/2010/05/embryos-are-not-life-forms-south-korea-court-rules/1.
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