When can you ask for child support credit?

There are times, especially when dealing with the Department of Child Support Services where the paying parent can be able to request credit for child support already paid.  Of course, by providing this blog, there are no guarantees as to the outcome of your particular case.  This information is for educational purposes only as the outcome of your case would depend on your own particular needs, and how you prepare for your case.  It is always wise to consult with an experience attorney regarding this issue.

The following two cases are well known and used by many attorneys on behalf of their clients in asking for child support credit.  In re Marriage of Trainotti (1989) 212 Cal.App.3rd 1072 and Jackson (1975) 51 Cal.App.3rd 363.  Both of these cases are similar in the fact that a child who was previously living with the custodial parent is now living with the non-custodial parent full time.  In each case, there was no formal modification of the custody order, however the custodial parent sought to enforce the support order claiming the non-custodial parent was in violation when they refused to continuing paying support (again without any formal filing for termination of support).  In summary, the court concluded that if the amount to take care of the child now in the custody of the non-custodial parent is a greater expense than the amount of child support ordered, it is possible, through the court’s equitable discretion to credit the non-custodial parent’s contribution against any argument of arrears.

Let’s take a look at this more closely:

To get credit for child support, the non-custodial parent must have the child now living with them and the expense to take care of that child is greater than the ordered child support.  The court has the power to decide in giving this credit based on the circumstances.  So it is discretionary as to what the court decides to do.  However, a prudent attorney would always inform his client, that whenever there is a change in custody, there must always be a modification of those arrangements, either by a stipulated agreement with the other parent or by filing a motion at court.  These changes should be done immediately.  The modification should include both the change in the new custody arrangement and in termination or reduction of the child support order.  Otherwise, you cannot automatically expect to be forgiven in paying your support amount if the court is not aware of your new parenting situation.  As always, keep a journal and receipts to back up your position when asking for credit or modification.

Warm Regards,

Lisi Munayco

Family Law Attorney & Certified Mediator.

www.munaycolaw.com