If one parent interferes with another parent’s visitation, may she be punished by a reduction in child support? The answer is no, according to a decision by the California Court of Appeal in San Diego.
Ruling 3-0, the justices reversed a trial court’s January, 2019, decision to use a 29 percent timeshare when calculating retroactive or past due support under the California guideline formula for the periods August 1, 2015 through October 31, 2017 for a boy born in September, 2001, even though the noncustodial father had no visitation with the child whatsoever during that time. This is not to say that the trial court gave no support to the mother. Indeed, child support was calculated at $529.00 per month for some of that time period, and $649 for the later part of that period. But the support numbers would have indisputably been higher had the court used the actual timeshare of zero percent.
The reason for the choice of 29 percent was that the trial court found that this was the average time that the father enjoyed for the earlier period of October, 2014 through July, 2015, i.e., the period that predated the dates that were the subject of the appeal. The reason for continuing to use 29 percent was is because there had been a specific stipulation for visitation, or at least a plan for reunification between the child and the father, but none of the plan was honored –in the eyes of the court—by the mother. Specifically, as the judge said, “[T]here was an agreement for visitation; there was an agreement and a stipulation for reunification. . . . [T]o have one party ignore it or specifically interfere with it and then seek child support based on a change in timeshare would be [inequitable]”.
The mother had been arguing Family Code section 3556, which states “[t]he existence or enforcement of a duty of support owed by a noncustodial parent for the support of a minor child is not affected by a failure or refusal by the custodial parent to implement any rights as to custody or visitation granted by a court to the noncustodial parent”. But this did not move the judge, who in the end said, “[t]he court found this to be an unusual case and that to deprive Father of this amount of timeshare and to award Mother’s specific behaviors that contributed greatly to the estrangement, balanced against the needs of [Child] in setting this order for months that have long passed, finds that it is appropriate and just to set the timeshare at 29 [percent]”.
Writing for the Court of Appeal, Justice Patricia Guerrero and her colleagues noted that it was undisputed that the court used a 29 percent timeshare for Father, during a period of time when he was not seeing his child at all and had no physical responsibility for him either. The conclusion was that “[b]y disregarding these facts in calculating child support, the trial court failed to comply with the statutes governing this highly regulated area of the law, and therefore abused its discretion”. This is because “[t]he law is well-settled that one parent’s interference with the visitation rights of the other does not affect the duty of support”. Even though this may not be fair (indeed, the mother’s actions were described as “horrific”), as the Court of Appeal pointed out, some 40 years ago, the state supreme court explained “the child’s need for sustenance must be the paramount consideration”. The high court has also held that “a child support obligation ‘. . . runs to the child and not the parent’”.
The remedy for custodial interference, said the appeals court, was to file for contempt, seek modification of custody, or other sanctions. But “[t]erminating or modifying child support by arbitrarily adjusting a parent’s timeshare is contrary to the best interests of the child who is generally entitled to guideline child support”.
The decision by the Justice Guerrero was County of San Diego v. P.B. Because the case was “certified for publication”, it may be cited as precedent and is binding on judges and attorneys throughout the state of California.
The case cite is (2020) 55 Cal.App.5th 1058.
Joining Justice Guerrero in her 23-page opinion were acting Presiding Justice Patricia Benke, along with Justice Terry B. O’Rourke.
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