by Commissioner Richard G. Vogl
In the determination of child support, visitation timeshare of the noncustodial parent is one of the most important factors which the court considers.
The timeshare is based upon a parent’s “responsibility” for the child, and not just the actual time when the parent and the child are together. See IRMO DaSilva, 119 C.A.4th 1030 (2004).
Many parents believe that somehow the child support is actually “contingent” on the visitation. That is, if the mother prevents the visitation, then the father should not have to pay.
That, of course, is wrong. Family Code §3556 says: “The 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.”
Thus, the father has to pay child support even if his visitation is inadvertently prevented. His recourse, of course, would be to file a request for a court hearing so that the court might determine how best his access to the child or children can be assured.
But what about the situation where the father gets a good order for visitation and then just doesn’t show up? The mother has to arrange for last minute child care and has the upset of a schedule gone wild.
There Is Hope
Section 3028 of the California Family Code provides the authority for the court to make a court order that a visiting parent should pay money if he or she does not take the child during his or her visitation period.
The section states that the order is for “financial compensation” and is limited to the “reasonable expenses incurred for or on behalf of a child, resulting from the other parent’s failure to assume caretaker responsibility.”
Compensation is also permitted to the visiting parent if their visitation is “thwarted.”
In either event, the expenses may include the value of caretaker services but are not limited to the cost of services provided by a third party during the relevant period. Three such events are called for, however.
Once the order is made, it would seem that no collection is permitted unless an actual court hearing is set, and the court makes the determination of the exact sum due. The party seeking the money must allege: 1) a minimum of one hundred dollars ($100) of expenses incurred; or 2) at least three occurrences of failure to exercise custody or visitation rights or 3) at least three occurrences of the thwarting of efforts to exercise custody or visitation rights within the six months before filing of the motion or order.
Interestingly, the section states that attorney’s fees shall be awarded. All the moving party has to show is that the prevailing party has the ability to pay.
May the court make a “penalty order” in advance of the situation arising? What if the mother says “He’s only asking for that visitation because he wants to pay less child support!”
Could the court say “I’ll put him to the test, if he doesn’t show up, I am ordering that he pay XXX dollars for each visitation period missed?” Is there authority for such an order?
To do so, it would seem that the court would have to make a determination of the cost of the “reasonable expense” compensation for his failure to “assume the caretaker responsibility.”
If the court makes an order for such compensation without a finding, it would seem that such a ruling would nonetheless become binding as a judgment is final when the ruling ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy and leaves nothing to be done but to enforce by execution what has been determined. See Maier Brewing Co. vs. Pacific Nat. Fire Ins. Co., (1961), 194 C.A.2d 494 (1961).
Is such an order an order for child support or is it a penalty order?
If the order were deemed child support, then no statute of limitations would apply.
If such an order is a penalty then, pursuant to California Code of Civil Procedure §1218.5, then any claim by the custodial parent for unpaid sums would have to be filed within “two years from the time that the alleged contempt occurred.”
A person who does not promptly come into court with a legitimate claim loses those rights.
What if the order provides that the penalty applies only for each “full day of missed visitation”? Surely, a definition of “day” would be called for. If father misses his dinner visitation on Wednesday night, would the same penalty apply as the missed weekend?
One California case gives some wonderful language for this conundrum. In Creed v. Schultz, 148 Cal.App.3d 733 (1983), appears this language: “Effective October 1, 1980, respondent’s obligation of child support under the Ohio judgment is modified to provide that respondent shall pay to petitioner the sum of $50.00 per month per child for the support of the two minor children Dianna Lee Schultz and Barrett Oliver Schultz subject to the proviso that, pending the arrival of the aforesaid two children for their summer visit with respondent as provided for in the Temporary Order filed in action number 771936, said amount of $50.00 per month for each of the two children shall be paid by the respondent to his attorney, Jack F. Bonanno, Esq., to be placed in the trust account of said Jack Bonanno. Upon the arrival of the aforesaid two children for their summer visit with respondent father in the summer of 1981, Mr. Bonanno shall forthwith then transmit said child support funds to the Family Support Bureau of the San Francisco District Attorney’s Office for transmission to the petitioner. The amounts payable by respondent to Mr. Bonanno in trust shall be reduced by any child support payments made by respondent to petitioner on or after October 1, 1980, to the time of the hearing in this case on February 5, 1981. In the event that the aforesaid children, Dianna Lee Schultz and Barrett Oliver Schultz, do not arrive at the home or other designated place of the respondent for the six weeks’ or other mutually agreed upon summer visitation rights for 1981, then the amount paid in by respondent to Jack F. Bonanno as trustee shall be subject to further disposition by this court, retroactive to October 1, 1980.”
The attorney as trustee! How does that sound to you?
Where visitation does not take place due to action by the custodial parent keeping the child away from the home, may she still seek the penalty? It would seem not.
It has long been established that “Family courts are courts of equity and there is a basic principle of equity that one cannot take advantage of one’s own wrong.” See McIvor v. Mercer-Fraser Co., 76 C.A.2d 247 (1946); IRMO of Schaffer, 69 Cal.App.4th 801, at 811 (1999); Civ. Code, §3517; IRMO Klug, 30 C.A.4th 1389 (2005); IRMO Fogarty and Rasbeary, 78 C.A.4th 1353.6 (2000).
One who comes into equity must come with clean hands. A court will aid neither party when both are in pari delicto. Even unconscientious conduct in the transaction may give rise to the defense. See Allstead v. Laumeister, 16 C.A.59 (1911).
Interesting questions. Who can pose the answers?
The author serves as a Commissioner in Orange County and was the longtime editor of the Family Law Corner.