Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.

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