I have a client that resides in Illinois while mom and children (only 1 remaining minor) presently all live in Israel. Mother requested the Los Angeles County Department of Child Support (DCSS) to enforce a private divorce order. The issues are a request for a modification of child support and determination of arrearages brought forth by the mother.
I will narrow down the issue of modifying child support as to childcare expenses only in this article and will follow-up up concealment of minors and its impact on arrears, if any at a subsequent article.
In re Marriage of Tavares, the father appeals the trial court’s order determining his child support arrears for his son, C., who was 16. The father contends that the trial court should have modified his arrears to account for period that the mother allegedly concealed the boy and/or incurred no childcare expenses. The appeals court held that his arguments failed as a matter of law.
The Court held that the alleged concealment, even if true, is not an obstacle to collection of arrears because the overdue child support payments will still benefit the child during his minority. Thus, entitling him to his father’s support. The Court further found that there are ample authority that establishes a parent who has failed to modify a support order may not undermine accrued arrears by later contesting expenses.
My case is similar in that there were periods of “concealment” by the mother of the two children. The Tavares case is also on point as to the factual similarity that my client failed to modify the childcare add-on support. Thus, DCSS continues to calculate child support arrears with the childcare expenses and both are accruing at the legal interest rate of 10%.
The Legislature has established a bright-line rule that accrued child support vests and may not be adjusted up or down. If a parent feels the amount ordered is too high or too low, he/she must seek prospective modification immediately. While the family court is a court of equity and it might seem unfair that a parent continues to be responsible for childcare expenses is no longer incurring childcare expenses.
The remedy as the Tavares case and statutes clearly point out--do not “sleep on your rights.”
The appropriate remedy is to immediately file a modification of the current child support order and seek the assistance of the court to ascertain if the childcare expenses should still be add-on child support. Failure to do so could be very costly and the only remedy left would be to hire an experienced attorney and negotiate with the custodial parent for a waiver of non-welfare arrears.
Moreover, any discrepancy in payments should be litigated. But without proper documentation (i.e. cancelled checks) it becomes a he said/she said scenario and the law is clear, the obligor has the burden of proof to show payments.
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Original Article Published at: http://attycastaneda.com/modifying-child-support/