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I know that this is another question and I should start another thread, but I need a quick answer. I filed for child support against my daughter's father about 4 years ago in California. They have not been able to 'find him' (even though he is in jail right now). Will he have to back track and pay me child support for the past 4 years? Thanks!Quote:
Originally Posted by ScottGem
If you were granted a support order, then yes I think you you can get back support. The issue discussed in the other thread (and yes I moved your post to its own thread) was whether support could be made retroactive to before a claim was filed.
I don't know why everyone is so baffled by this. How much simpler can it be?In California, you CANNOT receive/get an order for/ be granted retroactive support, whatever you want to call it, for any period preceding the date an action was filed with the court in which support was requested (for example, such an action would be a disso, legal separation, UPA case [paternity], petition for custody and support of minor children, a DCSS case for support). (Cal. Fam. Code section 4009). It IS the filing date of your case that controls.
The answer to this OP's question is maybe. The fact that an action was filed 4 years ago for support only means that the court has jurisdiction to make a support order retroactive 4 years. Now, normally, judges make support orders retroactive only to the date a motion for support was filed, which can be anytime after the action is filed (but never before). So, question. Was a motion for support filed 4 years ago? If so, what happened to the case? Was there a support order entered? If yes, then was it modified? If no, then yes, it is effective when it was ordered and if support is not current it will all be owed with interest. If no order was ever entered, then you probably will not get it retroactive 4 years. Making a support order retroactive is not automatic, it's discretionary with the judge. Note the discretionary language of the statute: " An original order for child support may be made retroactive to the date of filing of the petition, complaint or other initial pleading." (Cal. Fam. Code section 4009).
There's an urban legend floating around out there, based probably upon beauty parlor chit chat, that says that if mom waits till her kid is 17, has never asked for or been paid support by the absent dad and no support order was ever entered and no court case ever filed for support, that the said mom can trott into court, open a child support case, and suddenly get 17 years of "retroactive child support." I cannot speak for other states, but you cannot do this in California. No way. In fact, I would have serious doubts about the constitutionality of this being allowable even in other states that might otherwise authorize it.
Im going to say this out loud and clear.. I mean no disrespect.Quote:
Originally Posted by cadillac59
I myself encountered a situation that caused a man and his family to be displaced because the courts ordered 16 years of back child support and took everything he had. This occurred aprox 16 years ago in the bay area. I worked with this guy for 7 years. He was a ex marine. He was a stand up guy. After his mother had passed and his name appeared in the paper is when they came after him and took the house that his mother left him and garnished his wages to the point he couldn't survive anymore with the 3 children he had taken in from his last wife. ( she turned into a drug addict )
He had no idea he had a child of his own. He found out when court papers showed up in the form of a garnishment at work and a court date was on it.
Now back then there wasn't a child support enforcement agency and most things were handled by the local district attorney. But it DID happen.
As far as constitutional goes and Calif they are miles apart on many things. Take a look at the 2nd amendment and see how Calif walks all over that one. How about the freedom to go unencumbered ? Thanks to grass roots M.A.D. they started having random stops for anything they felt was " in the public good ". Look into the true history of smog control in Calif or the seat belt laws and how they used it to overpower the people. Im sorry but I have no sympathy left when it comes to the voting public and the legislators.
Sorry for the rant but I had to say something because I saw it happen with my own eyes.
What typically happens is a mom goes on welfare because she has a kid and the dad is for some reason out of the picture (maybe he doesn't know he's the father, maybe he's unemployed or doesn't care, who knows). Once welfare is paid, DCSS steps in for reimbursement. Or maybe the mom just goes directly to the agency and asks for a support order. Same result. A case is opened and somehow the dad is served but sometimes he doesn't respond to the complaint. A default judgment is then entered establishing paternity and a support order. DCSS tries to collect but cannot find the dad. Maybe the case lies dormant for many years for whatever reason.Quote:
Originally Posted by califdadof3
All of the sudden, DCSS locates the dad (say some 16 years later) and they send him a bill for $100,000 of past due support and start a wage assignment. This is a VERY common scenario. Now, obviously this is no retroactive child support. It's just an old order for support that was never paid. That's totally different. That is typically what is going on. The poor guy is blindsided by the whole thing but technically he was probably the one who dropped the ball years ago (by ignorning service of the complaint).
There was a pilot program a few years back that ended I think in late 2007. It allowed the court to wipe out past due support that was rendered in a default situation like this one where the dad could prove by DNA testing he was not the father of the child. Many people got relief in these cases and it was a great program while it lasted. The nice thing was there was no statute of limitations that applied so anyone could get relief (there ordinarily is a 2 year statute to set aside old default support orders). Nowadays if the statute bars your claim to set aside the support, you're out of luck, even if the kid is not your biological child! Pretty harsh!
So, I agree, there are many situations like the one you described with very harsh outcomes.
I still think it might possibly be unconstitutional to retroactively apply child support to a period before a court case were filed. Where's the due process, where's the notice and opportunity to defend for the period prior to the filing of the court case? Just seems suspect to me. How fair is it to make a person defend the application of a support order for a period long ago?
As far as the Texas laws I think they had it pretty well in hand when one part of the stipulation to getting the " retroactive " support was the knowing of the child in the first place. It seems even if the NCP atempted to make payments on his/her own and it didn't meet court statuates it still could get them off the hook. I believe the bottom line is "knowing" that an obligation can or could exist. In today's world any man outside of marriage being accused of being the parent of a child for the first time needs to march off to court and make sure.
Cadillac beat me to it, but he is saying what I was pointing out earlier. In your friend's case a default order for support was probably issued 16 years earlier. So support was not retoractive PRIOR to when support was filed for.Quote:
Originally Posted by califdadof3
What this points out is that sex is not a recreation. Most likely your friend's child came from a one night stand so he never knew he had fathered a child. But this is what comes of promiscuity. I sympathize with your friends predicament, but it could have been avoided.
It wasn't a one nighter. It was his high school girlfriend. And she never said a word after they broke up. He went from high school into the marines for a 6 year tour. Then came back home to settle down. He honestly never knew. In the end he did develop a relationship with his " new " daughter. But it was sad to see what he went through. We had even took up a collection for him so he could feed the kids he had.Quote:
Originally Posted by ScottGem
When my daughter was two months old, I left her father and went to a domestic violence shelter. When I was in the domestic violence shelter I had to apply for welfare and get a restraining order. Those were requirements for staying in the shelter. When I got my restraining order against the FOB I was granted sole custody with no visitations to the father until he completed a 52 weeks battery program and a drug rehab. He was also ordered to pay $254 a month for child support. When I applied for welfare, they took all of his information and said that they were going to go after him for child support and once they got back the money they gave me for the assistance, I would be getting the child support. Before I left California I talked to the DA and she told me that they haven't found him yet to serve him the papers. For the past four years I have been giving them address after address of where he is at and they send him the papers and never get a response, so they say that they can't find him. A few months after I left California I called the DA to change my address and I have made about 10 calls within the past three years to see what the status was. The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not. I have the paperwork to file for custody for my daughter here in Alabama and I am just waiting to save up $300 to go file the papers, which is nearly impossible because I work two jobs just to support my child and all my money goes to bills and my daughter. So, I wanted to make sure that I will get all my back child support for the past four years. He is on the birth certificate as the father and my daughter has his last name. He is not denying her either. He is just on drugs and wants to do that rather than being a dad. That is his decision and I will support my daughter and give her whatever she needs, but it isn't fair that I bust my butt just to support my daughter and he just gets off the hook for everything. So, will it still go back to the day that the restraining order was issued for my back child support? Or will the child support start from when I go file these papers out here?
Unless the father went to court to obtain custody, then the CA order giving you sole custody remains in force. I don't know why you think you need to file in Alabama.
And I'm not sure why you are having trouble understanding this, but support will be retroactive to when you filed for support. At the latest, it would be retroactive to the date he was first ordered to start paying.
But remember, you got public assistance. This means that CA will want to be reimbursed for what they paid you first. So if they do get him, they will apply whatever he pays towards what you got from the state. After that, money would start going to you.
So, even though the custody was established through a restraining order that is non void, I still have sole custody? I don't have to go file out here? That is what I thought about the back support. Thanks!
And I understand CA will want to be reimbursed before I will be. I was only on assistance for about four months. They cut me off when I got a job and started making money, so they shouldn't take more than a couple thousand dollars, if that.
I have another question for you. The father is in jail right now. They have been telling me for years that they can't find him because they don't know where he is at. Who do I need to call to report that he is in jail? Do I need to go through CA or AL? Thanks.
I just want to get all of this straightened out while he is in jail and they can serve him papers.
Custody is not established "through" a restraining order. These are separate actions, even though they may have been part of a single court hearing. But custody would NOT be dependent on the restraining order. You were awarded custody AND a restraining order, but they were not mutually dependent.
Report it through CA.
Okay, so even if it says that I have sole custody in the restraining order and the child support is on the restraining order? That means that there were two judgements? I only received the paperwork from the restraining order. I have not received any other paperwork that says I have custody except for the restraining order.
The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not.
Your restraining order may have expired but your custody orders arising out of the restraining order are valid. Also, if the dad is still living in California, California has continuing exclusive jurisdiction over both child support and child custody. You'd be wasting your time and money to file in Alabama because the Alabama court would throw your case out for lack of jurisdiction.
Your CA support order is still valid and you are entitled to collect onging support and the arrearages, with interest. Keep working with DCSS and have them try to collect it for you (or check with the local Alabama child support agency about getting them to help).
The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not.
You can still open up a case with the Alabama child support agency (and since you live there I think DCSS expects you to do that--you might need to make a simple call and check on this). Alabama cannot modify the support and you cannot modify custody in Alabama but the orders can still be enforced in Alabama, or anywhere else.
Okay, I will do that. Do I need to get any papers from California saying that I have custody, or will the expired restraining order be proof enough. I want to make sure because he threatened me about three months ago before he went to jail that he was going to come and take my daughter. I just don't want that happening. When I talked to my daughter's daycare, they told me that they need paperwork saying that I have sole custody with no visitations to the father and if they don't have that paperwork then he could just come up there and get her. I am just trying to protect my daughter and myself. Thanks for all of your patience and advice!
Who do I need to call to check on this? The Family Court office? How can I get the case moved to the state that I am living in? I don't plan to go back to California since neither the father or I am from that state, we moved out there together. If anything ever needs to be modified to the order I will not be able to get out to California. I don't have the money to buy a plane ticket or drive out there.Quote:
Originally Posted by cadillac59
You need to read what the order says carefully. I suspect that what you have is a judgement from the court that states something like
Restraining Order...
Custody Order...
Support Order...
Each piece a separate order, but delivered as part of an overall judgement.
I am not sure. I will look at the paperwork that I have tonight and let you know what it says. I don't recall seeing three separate orders.
The restraining order includes orders on custody and support as one document. The fact that the restraining order has expired doesn't mean anything.
You might order a copy of the court's file from the clerk's office just to show it to whomever is interested. It might have a minute order that is separate that would help clarify what happened.
Every state has a local child support agency that assists in collecting child support. Look in the phone book, ask around, I'm sure it's not hard to locate. Turn the California orders over to them and they should take it from there. It's all a free service too.Quote:
Originally Posted by ANB428
Alabama cannot modify the custody or support orders as long as the dad lives in California. If he moves away, that's different. If travel is a problem, most courts allow you to appear by phone for a nominal charge.
Okay, thanks.
So, what happens if he moves to TX, where we are both originally from? Can I transfer the custody to out there even if I do not live out there? I don't understand why I can't transfer it out here when the father has never done anything for my daughter and isn't even attempting to be a part of her life. It is ridiculous. There has to be a loop hole somewhere that will allow me to transfer everything out here. Thanks for all of your advice.
Okay, so I am confused. I posted another thread a few months ago about child custody. JudyKayTee told me that I needed to go to the family court in AL to file for custody of my daughter. Now, you guys are telling me that I don't need to file out here in AL because custody and everything was granted through a restraining order that is non-viod in CA. I am totally confused on what I need to do now. I know that this has nothing to do with back support, but I am confused on whether child support has even been established since it was granted in the restraining order. Can you please look at my previous post that says Child Custody (I don't know how to provide a link) and please give me advice on what I need to do. Thanks a bunch. I know that this is probably irritating, I just want to make sure that I have all my ducks in a row. Thanks for your patience.
Well this points out why you shouldn't start a new thread for the same issue. When Judy gave that advice, you had mentioned nothing about there being an existing custody/support order.Quote:
Originally Posted by ANB428
Follow the advice given in this thread since its based more complete info.
But I'm still concerned with this business of the restraining order being all mixed with the custody and support. This really doesn't make sense to me and I would striongly suggest that you have an attorney look over what documents you have. Its possible you are not understanding them correctly.
I answered based on the information you posted at that time. You have now posted different circumstances; therefore, you have received a different answer.
That is one of the problems with a site like this - "we" can only give advice based on what is posted. "We" have absolutely no way of knowing what the circumstances really are.
When it comes to child support and child custody jurisdiction, and one parent moves away from the state that issued the orders with the child, the court that made the orders retains jurisdiction if there is a "stay behind parent". As I said, if the dad continues to reside in CA, you have to go there to modify child support and child custody (unless the dad agreed to the Alabama court picking up child support jurisdiction-- as to child custody, the CA court would have to agree to relinquish jurisdiction to the Alabama court, which the CA court cannot not do under the facts you presented). If the dad moved to Texas, then you could modify the California child custody orders in Alabama (because the child lives there with you), but you'd have to modify the child support order in Texas. That's how it works. And it's not about "transferring the case" to Alabama. It's about modifying the existing CA orders in another state.Quote:
Originally Posted by ANB428
The relevant law on child custody jurisdiction is the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act). Regarding child support jurisdiction, see UIFSA (the Uniform Interstate Family Support Act). The identical law exists in both California and Alabama on both subjects.
Restraining orders are kind of weird in California, I have to admit, because you can get all sorts of orders out of them that you wouldn't expect. When I started doing family law 7 years ago or so I thought it was strange too but here's how it works: if you are married to the person against whom you are seeking a restraining order, you can get everything in the restraining order that you can get in a divorce with the exception of termination of marital status and division or property and debt. You can get child custody/visitation orders, child support orders, property control (including kick-out orders and orders on who pays what debt), attorney fees, and, as of a few years ago, you can even get spousal support! So, we load up restraining orders here with just about everything. Very common.Quote:
Originally Posted by ScottGem
If you are not married to the person against whom you request a restraining order, you can get everything in the restraining order you can get in a paternity case except establishment of paternity- you can get child custody/visitation orders, child support and attorney fees. That's what's going on with this OP.
It gets kind of confusing because what often happens is you wind up with two different cases in the same courthouse under two different case numbers (if you file the disso first followed by the restraining order they will file the restraining order in the disso under the same case number, but if you first file the restraining order then the disso they will file the disso under a separate case number in which case the judge usually issues his or her own order to consolidate the two cases). You cannot get duplicative orders or conflicting ones, of course, but as you can imagine it can get a little confusing having a restraining order with child custody and support orders and then a disso under a different case number in which both custody and support are also issues. We resolve the confusion typically by consolidation of the cases.
There's no filing fee for a restraining order but a $350 fee to file a paternity case or disso. Maybe that motivates people to try to do it all in a restraining order if they can.
Weird. I can understand the same court issuing multiple orders as a result of the same case. I just don't understand bunching them into one order.Quote:
Originally Posted by cadillac59
But that begs the question the OP is asking. If the Restraining order expires, how does that affect the support and custody orders that are tied to it?
One of the things I like about this board, and one of the reasons I participate, is not only that I like helping people specifically with California family law matters, but that occasionally I have to research a topic and thereby learn something myself.Quote:
Originally Posted by ScottGem
To answer the OP's question of whether her custody/visitation and support orders contained in the restraining order continue after the restraining order expires, the answer is yes. But the reason for this is a bit more complicated than you might suspect.
The relevant law on the duration of restraining orders is contained in California Family Code section 6345, which provides:
6345. (a) In the discretion of the court, the personal conduct,
stay-away, and residence exclusion orders contained in a court order
issued after notice and a hearing under this article may have a
duration of not more than five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. These
orders may be renewed, upon the request of a party, either for five
years or permanently, without a showing of any further abuse since
the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party.
(b) Notwithstanding subdivision (a), the duration of any orders,
other than the protective orders described in subdivision (a), that
are also contained in a court order issued after notice and a hearing
under this article, including, but not limited to, orders for
custody, visitation, support, and disposition of property, shall be
governed by the law relating to those specific subjects.
(c) The failure to state the expiration date on the face of the form
creates an order with a duration of three years from the date of issuance.
So the answer appears to be that, under subdivision (b), if the restraining order contains a duration described in subdivision (a) of up to 5 years, custody/visitation orders and child support orders are governed by whatever other law pertaining to their duration would otherwise apply in any other case in which those orders could be made (child custody/visitation orders terminate, unless modified, at 18; child support orders terminate, unless modified, at 18 and after the child finishes high school, etc).
Now, if a restraining order does not contain a duration, it is presumed to be in effect for a period of three years under subdivision (c). The problem is that subdivision (b) (which states that orders in a restraining order for custody and support are, as far as their duration is concerned, "governed by the law relating to those specific subjects") appears to apply ONLY if there is a duration specified in the order. So, question: are child custody and child support orders in restraining orders with no duration specified (that have a presumed duration of 3 years) impliedly subject to a duration "governed by the law relating to those specific subjects" or do they expire at the 3-year mark? See the problem with the statute? There's a hole in it, so to speak.
Commentators have no answer to this very narrow question. The "bible" on California Family Law states: "It is unclear from the statute whether this presumptive three-year rule [in section 6345(c)] is meant to apply to other orders issued under Fam. Code section 6340, et seq." Hogoboom & King, CAL.PRAC.GUIDE: FAMILY LAW (The Rutter Group 2008) 5:5.3
Since the OP seemed to know that her restraining order has already expired it probably contained a set termination date, in which case, and for the reasons stated, under subdivision (b) her custody and support orders are still in effect.
So, to summarize, and to cut through the legalese for the OP:
If the restraining order had a duration that expired = custody and support orders still in effect.
If the restraining order had no duration specified= we don't have an answer to the question (and that's from two authors so well-recognized and respected that they can be and often are cited before the California Supreme Court).
So, what you are saying Cadillac59 is that the custody and support is still in effect. How long is it in effect? Until she turns 18 or for 5 years? How do you know if the restraining order has a duration?
You seem to think that the restraining order expired. The order should have a date on it saying when it expires. If it does and if it has expired, then the custody and support orders are still in effect, yes. The child custody orders last until the child is 18. The child support order is good until the child is 18 and finishes high school (for example, if she finishes high school before turning 18 then it expires on her 18th birthday; if she turns 18 first, it expires on the day she finishes high school but in no event later than her 19th birthday; if she ceases being a full-time high school student between 18 and 19, it expires when she ceases being a full time high school student).Quote:
Originally Posted by ANB428
If the restraining order doesn't say when it expires, then it expires three years from when it was issued; however, whether the custody and support orders continue after the three-year mark in that case is unclear under California law.
Do you understand the difference? Just check the restraining order paperwork and look for the language "expires on..........." The odds are about 90%+ that your order has an expiration date (I've never seen a judge neglect to include a termination date), which means that the custody and support orders are still in effect.
The judge told me when the restraining order was granted that it would expire three years from September 8, 2005. Thank you for all of your help!!
Then your custody and support orders are still in effect and will not expire until your daughter turns 18, etc.; of course, they are still subject to modification.Quote:
Originally Posted by ANB428
Okay, cool. Thanks again!
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