When Child Support is no Longer Voluntary

Mother [M] and Father [F] were married and living in Hawaii.  They had one child together, a daughter [D], born in 2009. They divorced in Hawaii in 2012.  F was granted legal and physical custody of D, and M was ordered to pay F $70.00 per month to F in child support.

Shortly thereafter, F and D moved to Maryland to live with F’s mother, D’s paternal grandmother [G].

After about a year, it became apparent to G that neither M nor F was capable of providing for D.  G had been D’s primary caregiver and provided for all D’s financial needs, because neither M nor F would do so.

In 2013, G went into the Circuit Court for Montgomery County in Maryland and asked the court to order physical and legal custody of D to G, and to order both M and F to pay child support to G for D’s care.  G stated that neither M nor F supported nor cared for D, and it was in D’s best interests for G to get legal and physical custody of D and receive financial support for that care.

F did not contest G’s petition, and G filed a default judgment against M, because she failed to respond to G’s petition.  The Montgomery Court granted G’s request.  The Montgomery Court granted G’s petition and ordered M to pay G child support of $310.00 per month.  The State of Maryland, on G’s behalf, filed a child support petition against M pursuant to the Uniform Interstate Family Support Act [UIFSA] in California where M now resided.  (The UIFSA provides for family support via inter-state agencies.)  Consistent with California law, the San Diego Department of Child Support Services [DCHS] filed a summons and complaint seeking to establish child support from M.

At a hearing in San Diego in 2018, the trial court concluded that there was no agreement between M and G regarding child support payments which left G without jurisdiction to pursue child support.  (In California, under Family Code Section 3951, there must be an agreement between the parent and other child provider to provide support for the child.  Otherwise, the support provided is considered voluntary.)

The court stated, "It's not a guardianship.  It's a simple grandparent custody… Petitioner [DCHS on G’s behalf] went to court and asked for an order giving [G] custody, a voluntary assumption of custodial rights… [This is] not the same thing as one parent or another who has a law-imposed duty, each parent to support the child to their ability to each other.  It is someone who [has] voluntarily undertaken the support and care of the child without an agreement."

The San Diego Department of Child Support Services appealed.

The Appellate Court agreed with the DCHS:

“Once the court issued its order awarding [G] sole legal and physical custody of [D], she was no longer free to discontinue caring for [D].  At that point, [G] became legally obligated to ‘make long range decisions involving [D’s] education, religious training, discipline, medical care, and other matters of major significance,’ as well as to ‘provide a home for [D] and to make the day-to-day decisions required…’  Once the court awarded [G] full legal physical custody, her support ceased being ‘voluntary.’”

Categories: