Child Support Ordered Must Be in the Best Interests of the Child

Father [F] and Mother [M] were married in 1998.  In September of 2001, M gave birth to their only child, a son [S].  In 2006, M filed for divorce from F.  Both parties were granted 50/50 physical and legal custody of S, but litigation to change F’s custody of S began almost immediately.

In 2011, M petitioned the court to reduce F’s custody of S because of an incident in a restaurant.  (The case does not define what happened in the restaurant.)  The court granted M’s request and ordered monitored visitation by F of S.  The court also increased F’s child support obligation based on F’s reduced time with S.  At a later hearing, the court granted F custody of S to 29 percent and reduced his child support obligation to reflect the change.

Sadly, this was not the end of their contentious legal battles over custody.  F would petition the court to make M stop preventing S from visiting F, and M would say she wasn’t preventing S from seeing F, S was afraid of F and refused to see him.

In 2016, F and M agreed that F and S would begin reunification therapy, and in 60 days, F’s custody of S would be 50 percent.  Sadly, this did not happen.  According to M, S refused to see F and threatened to commit suicide if he had to see F.  However, S did begin therapy and attended sessions with F for a year.

In March of 2017, F petitioned the court to give him his 50 percent custody like their 2016 agreement had provided.  M filed her own petition requesting an increase in child support because F had no custody of S in 2016.  The court granted M’s request based on Family Code Section 4055, which states “approximate percentage of time that the high earner has or will have primary physical responsibility” for the child (commonly referred to as “timeshare”).  The court returned custody of S to 50/50 between F and M, based on their 2016 agreement and the fact that M had prevented F from his right to custody of S.  The court also reduced F’s child support obligation to zero citing that both parties had similar incomes, and changed F’s 2016 obligation to 29 percent.  The time he would have had without M’s interference.  The court reasoned that to do otherwise would reward M for her bad behavior.  M appealed.

The Appellate Court reversed.

“[T]he court cannot modify child support simply to coerce the custodial parent into compliance with the other parent’s visitation rights or to penalize the custodial parent for ‘interfering’ with the other parent’s visitation rights…[E]ven deliberate sabotage of visitation rights does not justify withholding payment of support.”  In other words, child support cannot be used as a reward to one party or a punishment to the other party.  Child support is ordered for the benefit of the child, not the parents.

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