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«CHILD AND SPOUSAL SUPPORT [REVISED 2012] ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of ...»

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Before a court may depart from the guideline amount, the court must calculate this amount. Marriage of Hall (2000) 81 CA4th 313, 316–317, 96 CR2d 772. A deviation from the guideline amount cannot be justified merely by making an estimate of the guideline amount. Instead, the court must make an accurate computation of that amount and then state the reasons for departing from that amount. Marriage of Whealon (1997) 53 CA4th 132, 144–145, 61 CR2d 559.

E. Additional Child Support 1. [§201.54] Mandatory Add-Ons A court must order the following as additional child support (Fam C


• Child care costs related to employment or to reasonably necessary education or training for employment skills.

• Reasonable uninsured health care costs for the children as provided by Fam C §4063.

When making an order for reasonable uninsured health care costs, the

court must (Fam C §4063(a)):

• Advise each parent, in writing or on the record, of the parent’s rights and liabilities, including financial responsibilities. Judicial Council form FL-192, Notice of Rights and Responsibilities— Health Care Costs and Reimbursement Procedures, may be used to give this advisement.

• Include in the order the time period a parent has to reimburse the other parent for the first parent’s share of the uninsured health care costs.

A parent who incurs or pays uninsured health care costs under Fam C §4063 must provide the other parent with an itemized statement of these costs within a reasonable time, not to exceed 30 days after incurring the costs. Fam C §4063(b). A parent who has already paid all of the costs must provide proof of payment and a request to the other parent for reimbursement of his or her court-ordered share. Fam C §4063(b)(1). A parent who has paid only his or her court-ordered share of the costs must provide proof of payment and a request to the other parent to pay the remainder of the costs directly to the provider. Fam C §4063(b)(2). The other parent must make reimbursement or pay the remaining costs within 201–43 Child Support and Spousal Support §201.54 the time period specified by the court, within a reasonable time not to exceed 30 days from notification of the amount due if no period is specified, or according to any payment schedule set by the provider unless the parties agree in writing to another schedule or the court finds good cause for setting another schedule. Fam C §4063(b)(3).

A reimbursing parent who disputes a request for payment must pay the requested amount but may then seek judicial relief under Fam C §§290 and 4063. Conversely, the other parent may seek judicial relief under these sections if the reimbursing parent fails to make the requested payment.

Fam C §4063(b)(4).

Either parent may file a noticed motion to enforce an order issued under Fam C §4063. Fam C §4063(c). The court may exercise its broad enforcement powers under Fam C §290 (including execution, appointment of a receiver, or contempt), and may award filing costs and reasonable attorneys’ fees if it finds that either parent acted without reasonable cause regarding that parent’s obligations to pay health care costs. Fam C §4063(c).

There is a rebuttable presumption that the costs actually paid for a child’s uninsured health care needs are reasonable. Fam C §4063(d).

However, the health care insurance coverage provided by a parent under court order is the coverage that must be used at all times unless the other parent shows that this coverage is inadequate to meet the child’s needs.

Fam C §4063(e)(1). A parent who obtains additional health care insurance coverage bears sole financial responsibility for the costs of this additional coverage and the costs of any care or treatment obtained under this coverage that exceed the costs that would have been incurred under the coverage provided for in the court order. Fam C §4063(e)(2). Similar provisions apply with respect to preferred provider plans. See Fam C §4063(f).

When ruling on a motion under Fam C §4063, the court must

consider all relevant facts, including (Fam C §4063(g)):

• The geographic access and reasonable availability of necessary health care for the child that complies with the terms of the health care insurance coverage paid for by either parent under the order.

Health insurance is rebuttably presumed to be accessible if services to be provided are within 50 miles of the child’s residence. If the court determines that health insurance is not accessible, the court must state the reason on the record.

• The necessity of any emergency medical treatment that may have precluded the use of the health care insurance, or the preferred health care provider required under the insurance, provided by either parent under the order.

• The child’s special medical needs.

§201.55 California Judges Benchguide 201–44

• A parent’s reasonable inability to pay the full amount of reimbursement within a 30-day period and the resulting necessity for a court-ordered payment schedule.

2. [§201.55] Discretionary Add-Ons A court may order the following as additional child support (Fam C


• Costs related to the children’s educational or other special needs.

• Travel expenses for visitation. See Marriage of Gigliotti (1995) 33 CA4th 518, 527–529, 39 CR2d 367.

The provisions of Fam C §4062 for additional child support are exclusive, and the court has no authority to order other “add-ons.” Boutte v Nears (1996) 50 CA4th 162, 165–167, 57 CR2d 655 (court may not order attorneys’ fees as “add-on”).

A court does not have authority to order a parent to deposit into a trust or savings account a specified amount as additional child support to provide for the child’s potential expenses or future needs. A court’s authority to determine the amount of child support is limited to the conditions and circumstances existing at the time the order is made; it may not anticipate what may possibly happen thereafter and provide for future contingencies. Marriage of Chandler (1997) 60 CA4th 124, 129–131, 70 CR2d 109.

3. [§201.56] Apportioning Add-Ons Between Parents If the court determines that these add-on expenses should be apportioned, it must order each parent to pay one-half of the expenses, unless a parent requests a different apportionment and presents documentation demonstrating that this apportionment would be more appropriate. Fam C §4061(a); Marriage of Fini (1994) 26 CA4th 1033, 1039–1040, 1 CR2d 749. If the court determines that a different apportionment is appropriate, it must apportion the expenses as follows (Fam C §4061(b)):

• The court must calculate the basic child support obligation using the guideline formula set forth in Fam C §4055(a), as adjusted for any appropriate rebuttal factors in Fam C §4057(b).

• The court must then order that any additional child support required for expenses under Fam C §4062 be paid by the parents in proportion to their net disposable as adjusted for the following (Fam C §4061(c)–(d)):

— If the court has ordered one parent to pay spousal support, the court must (i) decrease the paying parent’s gross income by 201–45 Child Support and Spousal Support §201.57 the amount of the spousal support and (ii) increase the receiving parent’s gross income by the amount of the spousal support.

— The court must reduce the net disposable income of the parent paying child support by the amount of the child support. The court may not, however, increase the net disposable income of the parent receiving the child support.

 JUDICIAL TIP: In determining add-on allocations, the court can be assisted by referencing the child support computer program calculation page and comparing the relevant net incomes of the parties after support and taxes.

4. [§201.57] Health Insurance Coverage In any child support proceeding, the court must consider the parties’ health insurance coverage, if any. Fam C §4006. In setting support, the court must require either or both parents to maintain health insurance coverage for the supported child if that insurance is available at no or a reasonable cost to the parent. Fam C §3751(a)(2). Health insurance coverage is rebuttably presumed to be reasonable if the cost to the responsible parent providing medical support does not exceed 5 percent of his or her gross income; in applying the 5 percent for the cost of health insurance, the cost is the difference between self-only and family coverage. Fam C §3751(a)(2). If the support obligor is entitled to a lowincome adjustment under Fam C §4055(b), medical support must be deemed not reasonable unless the court determines that not requiring medical support would be unjust and inappropriate in the particular case;

if the court determines that not requiring medical support in such a case would be unjust and inappropriate, the court must state its reasons on the record. Fam C §3751(a)(2). The court must state its reasons on the record for determining that the cost of health insurance coverage is not reasonable. Fam C §3751(a)(2). If the court determines that health insurance coverage is not available at no or a reasonable cost, the support order must contain a provision specifying that the parties must obtain health insurance coverage if it becomes available at no or a reasonable cost. Fam C §3751(b).

When a child who has reached the age of adulthood is incapable of self-sustaining employment due to a physical or mental disability, the court must order the providing parent to seek continuation of health insurance coverage for the child if he or she is chiefly dependent upon the providing parent. Fam C §3751(c).

§201.58 California Judges Benchguide 201–46 The cost of health insurance is in addition to the child support amount, but is deductible from the payor’s gross income in determining the amount of income available for support. Fam C §§3753, 4059(d).

The child support order must contain a provision requiring the parties to keep each other informed about their group health insurance coverage.

Fam C §3752.5. The order must include a provision requiring the parties to keep each other informed about their coverage when the child has reached the age of adulthood but is incapable of self-sustaining employment due to a physical or mental disability and is chiefly dependent upon the providing parent. Fam C §3751(c).

F. [§201.58] Parties’ Stipulation to Child Support Amount The parties may stipulate to a child support amount, subject to the court’s approval. Fam C §4065(a). The court may not approve a stipulated agreement for child support below the guideline formula amount unless

the parties declare that (Fam C §4065(a)):

• They are fully informed of their rights concerning child support;

• They agree to the order without coercion or duress;

• The agreement is in the children’s best interests;

• The children’s needs will be adequately met by the stipulated amount; and

• The right to support has not been assigned to the county under Welf & I C §11477, and no application for public assistance is pending.

The stipulated agreement is not valid unless signed by the local child support agency when the agency is providing child support enforcement services. The child support agency cannot sign a stipulated agreement ordering an amount below the guideline amount if the children are receiving CalWORKS benefits, if there is a pending application for public assistance, or if the parent receiving support has not consented to the order. Fam C §4065(c).

If the stipulated amount is below the amount established by the guideline formula, no change in circumstances need be shown to obtain a modification of the child support order to the guideline amount or above.

Fam C §4065(d). When a court approves such a stipulation, it must include, on the record, the information required by Fam C §4056(a) (see §201.53). Marriage of Laudeman (2001) 92 CA4th 1009, 1014, 112 CR2d 378.

Parents cannot waive or limit the right to child support, or divest the court of jurisdiction over child support. Marriage of Lambe & Meehan (1995) 37 CA4th 388, 392–394, 44 CR2d 641.

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