Freedom to Express Oneself Does Not Exclude Child Support

Freedom to Express Oneself Does Not Exclude Paying Child Support

When Aisha met Howard, she was the mother of two children, Fairiz and Farah. After they married, they had three more children, Julianna, Joshua, and Justin. The marriage did not last, and in 1990, they were granted a divorce. In subsequent court proceedings, Howard ended up with sole custody of all the children – including Fairiz and Farah.

Sadly, life did not go well for Howard. He lost his job, filed for bankruptcy, and moved to Indiana to start life over for him and their children. To do so, he needed financial help from Aisha, so he went back into court and requested Aisha pay child support . During this same time period, Aisha quit her job and had three more children.

In court, Aisha's attorney argued that Aisha did not have to support her other five children because she was staying home to raise her three new children (all under the age of three), and did not have any income to support the other ones. Howard argued that she was just as responsible for the other children as he was, and that she should pay child support for those children based on her ability to earn a living. Before Aisha quit her job she had been a computer analyst. She held a bachelor's degree in computer science, and had obtained additional computer certifications. She had been earning $44,000 a year (in 1990 wages). Further, Howard produced evidence from reputable employment agencies that they could immediately get her jobs earning between $35,000 and $50,000 per year.

The trial court found for Howard, imputing $3,200 per month of income to Aisha and awarding Howard $1,248 for monthly child support. The trial court stated, "[W]e have five children being raised by Mr. Hinman in Indiana, four of whom are under the age of [eighteen], and she has started a new family with three new babies. She has brought ... eight kids into the world, and wishes to be responsible for the support of only three. And of course, you know as well as I do, that that is not the way the laws of the [S]tate of California work. She has to contribute some support to these children. She can't just quit work and create a new family and then use that as an excuse to escape her responsibilities to these other children."

Aisha appealed arguing the court had no authority to make her pay money she didn't have or make her get a job to get it.

The appellate court ruled against Aisha citing Family Code section 4058, subdivision (b). That section states: "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children."

The appellate court further stated, "… a child support obligation must be taken into account whenever [the person obligated to pay support] wishes to pursue a different lifestyle or endeavor.... [C]hild ... support [is] an overhead which must be paid first before any other expenses.... [A payor does] not have the right to [get rid of] his [or her] earning ability at the expense of ... minor children." (Emphasis added.)

In other words, just because a parent wants to do something different, the responsibility of financially providing for his or her minor children does not go away.

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