Recent Posts in Collaborative Process Category

A Cautionary Tale:

How Not to Run Your Separation and Custody Battle

"Paging Dr. Freud. Paging Dr. Freud.

* * * This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment....

... [I]t is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. Larry and Catherine hate each other, as do Larry and Sam. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and, a satisfactory legal solution is impossible (hatred has no legal remedy)."

The decision details allegations of multiple death threats between the parents, between the parents' relatives and the other parent, between the new spouses and the other parent, changed locks on the residence, assault by Van, interferences with visitation, interrogation of children about the other parent, threats of jail, and a stream of abusive texts and phone calls, arguments that the children should be separated and divided between the parents, alienating behaviors even after court mandated counseling sessions, and more.

The court found the mother's behavior to be the more problematic of the two - "Had [mother] fulfilled her dual parental duty to foster and encourage access between [dad] and [the child] and not to speak disparagingly of him in the presence of [the child], I am confident that this case would have unfolded differently."  By the time of the trial the 13 year old daughter was so alienated from her father that the Court felt helpless to devise any remedy to repair the damage.  It made the following findings:

"(1) The alienation was not present before Larry and Catherine separated; (2) This is not a case where Taylor [13 year old daughter] has weighed the good and bad attributes of her father and found him, on balance, to be parentally deficient: she sees Larry as all bad – there is no ambivalence to her feelings; she is not disguising her true feelings; (3) Larry, although well-intentioned, is an inept father, who has not taken steps to identify, and fix, his shortcomings as a parent; nevertheless, the utter rejection of him by Taylor is disproportionate, unfair and unwarranted; (4) . . . Taylor has aligned herself with Catherine whose hate for Larry is palpable; the battle lines are clearly drawn and Taylor knows the side that she wants to be on; (5) I am unable to think of anything that Larry can do to quickly repair the damage in his relationship with Taylor; and, if I could, I have doubts that he has the skill-sets to pull it off; (6) I did not hear evidence of a single instance of Taylor, since separation, expressing love or affection for Larry; (7) Although children are often required by their parents to do things that they do not want to do, obligating Taylor to visit her father or to engage in counseling is considerably more complicated than insisting that she do her homework or go to the dentist; (8) The history of the parties is such that there is no reason to think they would meaningfully take part in, or benefit from, therapy or counseling; (9) While it is Catherine’s duty to encourage and support a relationship between Taylor and Larry, that duty has been breached too severely to be remedied by the court; (10) It is not realistic to expect that the parties have the incentive and finances to engage in the extensive therapy and counseling that are needed; (11) Depriving Catherine of custody (sometimes an appropriate way of dealing with an alienating parent) would not benefit Taylor at this point.

It is my view, sadly, that the alienation here is so severe that it is in the best interests of Taylor not to order or enforce access by Larry. If access happens, fine.

Without professional help, Larry is incapable of addressing the breakdown in his relationship with Taylor. Although, as I have said, well-intentioned, he is an ineffective parent and, without counseling and other assistance, he will remain ineffective. While Catherine, aided and abetted by Sam, initiated the alienation of father and daughter, Larry has not improved the situation. But, I emphasize the fundamental fact that Catherine’s conduct is the sine qua non of the alienation.

Absent counseling, matters will worsen, not improve. No practical purpose would be served if the court were to decree a schedule of counseling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counseling to undo. The legal system does not have the resources to monitor a schedule of counseling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.

Larry might consider some common-sense steps, such as cards, letters or gifts, to show that he is receptive to a relationship with Taylor should she have a change of heart. However, he would be wise to have those steps independently vetted by a responsible person (preferably, a professional in the child-psychology or family-counseling field)."

Q.  How is child support calculated in California?  I have heard about "Guideline Support" but am wondering what this means?

A.  In 1993 California adopted a Statewide Uniform Guideline to come into compliance with a federal mandate.  (Family Code section 4050).  This followed wide variability of orders and a prior failed attempt to ensure predictability.  Its effect was to greatly increase the monies available to children and to begin to end gender bias in assessing support.    Family Code section 4052 requires California court Commissioners to adhere to the uniform guidelines and to "depart from the guideline only in special circumstances...." 

Family Code section 4053 lists principles to be followed by the Court in implementing the guidelines.  This is a statute worth reviewing, and using to remind family court judges of what our State child support policy is.  These include the directives that:

(1)  A parent's first and principal obligation is to support their minor children "according ot the parent's circumstances and station in life."

(2)  Both parents are mutually responsible.

(3)  The guideline must take into account each parent's actual income and the level of responsibility for the children.

(4)  "Each parent should pay for the support of the children or according to his or her ability."

(5)  The interests of children are the State's top priority.

(6)  Children should share in the standard of living of both parents.  Child support may therefore be appropriately used to increase the standard of living of the custodial household to improve the lives of the children.

(7)  Disparities of living standards in both homes, particularly where both parents have high levels of responsibility for raising the children, should be minimized through the use of guideline child support orders.

(8)  A parent having primary physical responsibility for the children (a term that is nowhere defined in the Family Code) is presumed to be contributing a significant portion of their available financial resources to the support of these children.

(9)  The guideline is intended to encourage settlement between parents by creating predictability.

(10)  The guideline is presumptively correct in all cases, and ony in special circumstance should child support orders be less than guideline.

(11)  Child support orders must reflect the greater standard of living and costs of living in California as opposed to other states. 

California Family Code section 4055 sets forth the formula for assessing guideline support.  Don't even bother to look at it, you will need to be a mathematician or logics teacher to understand or explain it.  While gross income numbers (or imputed income) are used, the guideline tax effects this income so that net income is generally what is determinative - however, this complicates doing the math.  The percentage of parent's income allocated to children is called the "K" factor, and this number moves depending upon how many children there are.  It assumes, for instance, that 26% of the joint income of most families is spent on families with one child, and 60% where there are three children.  Forturnately these calculations are done for us through computer programs.  The most common are the Dissomaster and Xspouse, which I will explain further in another blog.  Riverside County in Indio utilizes the Xspouse.  The Xspouse is a spin off from the people who devised the Dissomaster, after they had a parting of the ways.

Child support always takes precedence over spousal support, or personal expenses.  Relative timeshare between the parents is a major factor in using the formula - the higher the noncustodial parent's timeshare, the less they pay. 

Unfortunately this means in practice that there is much legal wrestling between parents about timeshare that has nothing to do with the children's best interests but often everything to do with economic warfare.  I write about this in separate articles detailing Collaborative Law processes where we attempt to refocus parents on best interests rather than legal rights (per the guideline formula, for instance) so that primary parent's (often mothers) will give up more custodial time and fathers will pay a little more for this time and then actually undertake using that time (as opposed to having it on paper in a court order, but generally ignoring the increased responsibilities).  Please see this link to our Collaborative Divorce Team.

Importantly, even when courts order child or spousal support to women, studies have shown that most children who are entitled to child support from their fathers never receive it (Huang, Mincy, and Garfinkel, 2005). There may be a number of reasons for this. One determinant of fathers meeting these obligations is their ability to pay.  Researchers have found that when child support obligations exceed 35% of a father' sincome, he is less like to comply (Meyer and Barfeld, 1996).  Lower earner fathers are generally required to pay a higher proportion of their income in child support in child support than higher earners, which pressures the poorest members of our society (Huang, et al., 2005).

Women in heterosexual relationships, as single parents (or child-caretaking partners), are at greatest risk of becoming systemically impoverished (Strong, et al., 2008). Following divorce, women are principally responsible for both child-rearing and their own economic support. At a minimum a woman may suffer a significant decrease in her financial condition. Studies have shown that a single mother's income may decrease by twenty-seven percent or more.  (Peterson, 1996; Smock, 1993).  [Please contact me if you want the actual citations to these studies].

These realities may or may not interest you.  They do affect children and parents in very deep ways, nonetheless.

In any event, now that you have the background I will provide more detailed information on how the Xspouse and Dissomaster programs work in practice very soon.  Try using our search engine at the upper right corner of any page on this site and you will find those articles when they are up.

TWA

Thurman Arnold is a child support attorney practicing in Riverside and San Bernardino Counties, including the cities ranging from Blythe, Indio, Indian Wells, La Quinta, Palm Desert, Rancho Mirage, Palm Springs, Desert Hot Springs, Joshua Tree, Hemet, San Bernardino and Riverside, CA.