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Child Support After COVID-19: The Do’s and The Don’ts

April 24, 2020 Maya Younes

In California and many other states, shelter-in-place orders are in effect.  If you are going through a divorce and you have been laid off, furloughed, or otherwise had a change in income due to the widespread impact of Coronavirus Disease 2019 (COVID-19), you may need to seek a child support order, or if an order already exists, seek a modification of child support. 

After a child support order is issued, either parent may request the court to modify the amount of support up or down.  A legitimate inability to pay support at the current level ordered may justify a downward modification, depending on your circumstances, while changes in the child’s needs during shelter-in-place may justify an increase in child support.    

This blog assumes that you already have a child support order in place for your children, directly from the court or through a local child support agency, and that you need a modification of the existing order. 

Assess your options.

By statute, your “first and principal obligation” is to support your minor children according to your circumstances and station in life.  (Fam. Code, § 4053.)  Until your current child support order either expires or it is replaced with a new order, it remains in effect.  If you miss payments, you may accrue arrearages or be found liable for contempt, which may be punishable by fines and even jail time.   

The shelter-in-place orders implemented to fight the spread of COVID-19 have resulted in an unprecedented change to businesses nationwide.  The food, travel, and events-based industries, and brick-and-mortar stores have been reduced to limited operations.  The economic impact remains uncertain.  How has your industry been affected?  If you are no longer employed, it is important to assess whether there are reasonable opportunities in the immediate future for you to find new employment based on your work history and unique circumstances.  School closures to reduce the spread of COVID-19 have created major childcare challenges for some parents.  If you are the supported parent who has lost work, assess whether you need a support increase.

Generally, courts will not modify child support unless there has been a material change of circumstances since the prior order.  (Marriage of Usher (2016) 6 Cal.App.5th 347, 357.)

Many factors influence a child support calculation.  The supported parent who requests an increase in support will have to show that since the initial order, a change in circumstances occurred, such as a change in the child’s needs.  Beyond the bare necessities of life, a child’s needs vary with the parents’ circumstances.  With school closures, parents are required to establish new routines for some semblance of a normal school day, and assist children with schoolwork.  On top of this, if the custodial parent has involuntarily lost his or her job, the custodial parent may require an increase in child support, even if only temporarily.

Identify and document how your expenses have changed due to the pandemic.  These specific facts will be submitted with your request to modify support.  Has there been a change in child care expenses, medical insurance, or custody and visitation arrangements?  Consider whether there has been a change in primary custody - does the child live the most with the parent who is able to work remotely?  From the perspective of the paying parent, if your income went down since the last order, you may file a request to lower your child support payments; however, if your time with your children has also decreased, you may find the child support amount increases.  

Whether the request is to modify child support up or down, each parent’s income is considered.  The Court will need to determine each party’s gross income by reviewing each parent’s Income and Expense Declaration.  Note that income the court considers includes, but is not limited to, unemployment insurance benefits.  (Fam. Code, § 4058, subd. (a)(1).)

Subject to the child’s best interests, the court may, in its discretion, consider whether either parent’s earning capacity should be considered rather than actual income.  (Fam. Code, § 4058, subd. (b).)  Earning capacity is determined based on both the parent’s ability and opportunity to work.  (Marriage of Smith (2001) 90 Cal.App.4th 74, 82.) 

Courts may impute income to an unemployed parent where the parent has the ability and opportunity to work; however, if either the ability or opportunity to work is absent, earning capacity may not be imputed.  (Marriage of Hinman (1997) 55 Cal.App.4th 988, 998 [earnings properly imputed to unemployed mother despite caregiving responsibilities]; compare Marriage of Eggers (2005) 131 Cal.App.4th 695, 701 [error to charge paying parent with imputed earnings from prior employment involuntarily terminated without determining ability and opportunity to work at former income level].)  Use of the earning capacity standard is an abuse of discretion where the parent lacks either the ability or opportunity to work.  (Marriage of Smith, supra, 90 Cal.App.4th at 82.)  Further, a court may not impute earning capacity to a parent unless doing so is in the children’s best interest.  (Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301.)

Whether circumstances have sufficiently changed to warrant a child support modification is determined on a case by case basis.  The parent seeking the child support modification bears the burden of showing a change in circumstances warranting a modification of the existing order.  (Marriage of Usher, supra, 6 Cal.App.5th at 357.)  Where the paying parent seeks a support reduction because he or she has lost his or her job, or otherwise suffered a reduction in earnings, that parent bears the burden of proving he or she lacks both the ability and the opportunity to earn.  (Marriage of Bardzik (2008) 164 Cal.App.4th 1291, 1308.)  The supported parent who seeks a child support increase based on the other parent’s imputed income bears the burden of proving the other parent’s ability and opportunity to earn.  (Id. at 1305.)

Do not delay.  

Although courts have discretion to modify child support orders retroactively, they generally cannot modify any support amounts that already accrued before the date the motion for modification is filed.  (Fam. Code, § 3653.)  Importantly, if the modification request is based on unemployment, absent a finding of good cause, the court must make the order retroactive to the later of (1) the date the motion was served on the other parent or (2) the date the parent became unemployed. 

Because of the court’s limits on retroactively modifying support, it is essential not to delay in filing your modification request.  In most counties, it is still possible to file papers seeking modification of support, despite the court’s current limited operations.  Although you may not be able to have your motion heard until after the shelter-in-place orders are lifted, filing your motion as soon as possible will preserve your ability to request that the support orders be modified retroactively to the earliest possible date.  If support is modified retroactively, the court may order the other parent to reimburse you for any amounts paid in excess of the modified amount. 

If possible, communicate with the other parent.

If the parents reach temporary agreements during the shelter-in-place, everyone benefits.  Parents may, of course, agree on an alternate arrangement for child support during the pandemic.  This is where transparency is key.  Be upfront as to whether your job loss is temporary or permanent. The other parent may have had changes in his or her circumstances as well that you do not know about that may also affect child support.  Whether or not you have already filed a motion seeking to modify support, you may be able to reach a written stipulation to be approved and entered by the court, giving you a new child support order without having to go back to court.     

In the meantime, try to find another job.

Even if you have lost your job because of COVID-19, it is important for the court to see that you are trying to become gainfully employed again.  Assess your skills, and document all of your efforts to become employed.  Judges do not look favorably on parents who remain willfully unemployed.

Check current court guidelines during shelter-in-place.

If you believe your rights and obligations have been impacted by COVID-19, you should consult an attorney.  Assuming your county is following shelter-in-place orders, all non-essential functions have been suspended; however, your county may allow you to e-file a support request even if the clerk’s office is closed to the public.  Although your hearing date may be delayed, filing the motion may preserve retroactivity.  Courts are also currently working out how to deal with retroactivity once they are able to hear those motions, in light of extensive job losses currently.

For these reasons, you should file for a child support modification as soon as possible, and you will likely obtain a hearing date for after the shelter-in-place order is lifted.  With diligence, you may develop a plan to help your family navigate these uncertain times.