Guideline Child Support Dissomaster Calculations

Guideline child support Dissomaster calculations æ sometimes referred to as “those dang things” (the “apt phrase” of the trial judge in In re Marriage of Whealon, as cited by Justice David G. Sills at 53 Cal.App.4th 132, 144 (1997) æ- are the Procrustean beds of child support cases.

“Guideline child support” is defined in California’s Family Code Section 4055, which specifies a complex algebraic formula into which the parties’ net incomes and respective percentages of time with the children are inserted. The result of the computation is the “guideline” amount, and is presumptively correct, subject to various rebutting factors. The “Dissomaster” is one of several proprietary computer programs that tax-impact gross incomes and otherwise “crunch” the numbers pursuant to the statutory formula. The formula is so complex that the assistance of this type of software is virtually obligatory. Continue reading →

Its Not Final Until It’s Final

Rose v. Richardson, (2002 DJDAR 11827)

In the Supreme Court case of Montenegro v. Diaz (2001), 26 Cal.4th 249; 109 Cal.Rpt.2d 575, the Court clearly stated that a custody stipulation entered into by the parties will not constitute a final judgment of custody unless there is a “clear, affirmative indication” (Page 581) that the parties intended it to constitute  a final judgment of custody. The practical effect of this finding is that if there is not a final adjudication of custody, any modification or changes in custody require only a showing of “best interest” and not a showing of the more difficult “a change of circumstances”. In custody litigation, this is a very significant difference. Often, a change in the custody/visitation schedule may be appropriate post judgment based upon the child’s age, multiple attachments, passage of time or other changing social and developmental needs that would impact upon a child’s “best interest”. However, parties are often unable to establish that the aforementioned happenings constitute result a “change of circumstances”. This increased post judgment burden is particularly important in “move away” cases where one party has “custody” and the other party  has only “visitation”. Continue reading →

Joint Physical Custody – What Does It Really Mean?

“Time Care, The Definition of Joint Custody Remains Elusive”
Los Angeles Daily  Journal ,  issue  #173, Vol  111, 9/8/98

What, exactly, is joint physical custody?  Is it “fifty-fifty”?  Is 33 percent enough? What about a 60-40 arrangement; or five nights out of 14?  Is there some other “bright line,” by which courts and litigants can readily see that a particular custodial arrangement is, or is not, joint physical custody? As Justice Donald King wrote some years ago in In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508:

It is doubtful that any two words mean as many different things to as many different people as the words “joint custody.”  211 Cal.App.3d at 1515.

And it is equally doubtful that any two words have produced as much confusion in as short a time-span as those words applied in the context of cases in which one parent seeks to relocate with the parties’ children. Continue reading →

Change of Circumstances

The recent case of Montenegro v. Diaz (7/10/00) 97 Cal.Rptr.2d 782, raises a little higher the obstacle of presenting a factual “change of circumstances” which must be hurdled by a custody litigant seeking to modify a permanent decree of custody and visitation.  This case, a reversal of a trial court order changing custody from mother to father, arose out of the all-too-frequent pattern of a parent with a “bad attitude” who is and always has been intent on interfering with the other parent’s custodial time with the child.  The Montenegro court held, in effect, that if the “bad attitude” existed prior to the time a permanent custody order was entered, either after trial or by stipulation, the degree of continuing interference as displayed in the Montenegro case with the custodial relationship does not amount to a change of circumstances and thus the custody decree cannot be modified to ameliorate the interference. Continue reading →

Custody Modifications Post Birnbaum: Form Over Substance?

“Custody Modifications Post Birnbaum: Form Over Substance?”
Los Angeles County Bar Association Family Law News and Review,
Vol. 10, #4, Fall 89

When we last wrote about the field of child custody litigation (See “The Changing Nature of the Burden of Proof in Child Custody Litigation”: Family Law News & Review, Winter 1987), the California Supreme Court had recently issues its opinion in Burchard vs. Garay 42 Cal.3d 531.  At that time, the Court indicated a move away from the “change of circumstance” rule enunciated in In re Marriage of Carney (1979)  24 Cal.3d 725 and its prodigy.

Essentially, the Supreme Court in Burchard indicated that when there existed no court order or judicial determination of a custodial arrangement, the burden for changing same was a best interest test rather than a change of circumstance test.  (It is interesting to note that numerous commentators have cited the fact that both Carney and Burchard involved initial determinations of custodial arrangements by courts, yet the burden of proof to necessitate a change in both cases, was radically different.) Continue reading →

Relocation Redux

Since In re Marriage of Burgess (1996) 13 Cal.4th 25, was decided five years ago, the custodial parent’s right to relocate with the parties’ children has been augmented by a series of appellate rulings. However, none of these cases has identified that right at such an early stage of the proceedings as In re Marriage of Bryant (8/15/01) 2001 Daily Journal D.A.R. 8733, nor has any case so tilted the burden of proof in favor of the parent with whom the children have been residing. Continue reading →

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