Can I ask my child's mother to pay for private school?

Extra education expenses are a challenging issue, especially when both parents can't afford private school. In this blog post we look at whether on parent can ask the other to pay for private school.

Children's Educational or Other Special Needs

A family court has discretion to increase the amount of child support beyond the support guideline amount to account for costs related to a child's educational or other special needs. Fam C §4062(b)(1). 

In order to obtain an order that a parent pay for private school tuition as an educational need, two conditions must be met.  First, the child must have a special educational need for private education, such as a gifted child or a child who suffers from a disability. See Marriage of Aylesworth (1980) 106 Cal. App. 3d 869, 879 (father ordered to pay private school tuition for epileptic son but not for daughter, absent evidence that attendance "would be of a more personal benefit to her than it would be to any child in general").  Second, the cost must be within the financial means of the payer parent. See Fam C §§4053(d), 4061(b)(2).

Summary of Private Tuition Issue in Aylesworth

In Aylesworth, the California Court of Appeal held that the trial court's order requiring former husband to pay for his son's private school tuition was correctly based upon the father's ability to pay and the mother's testimony at trial.  At trial, the mother established that her wealth had declined drastically since the prior order and she was in a deficit financial position, while the needs of the children had increased due to their growth, aging and the increased costs of living. In addition, her testimony established that the oldest child had educational difficulties due to  suffering of epileptic seizures.  The mother further established that the private school the child attended was able to give him personalized attention.  The trial court found that it was in the child's best interests to stay enrolled in a small private school where he received such personalized attention. The father was ordered to pay the yearly tuition of $2,400.

In reaching its holding, the Aylesworth court also applied Straub, which held that a child is entitled to an award of private school tuition where appropriate to his parents' income. Straub v. Straub (1963) 213 Cal. App. 2d 792, 798.  In his argument, Father claimed thatStraub was inapplicable because it had nothing to do with the needs of a child for private school caused by an alleged medical condition. Father also stressed the trial court's refusal to grant the mother's request that he also pay tuition at the same private school for their other child. Father further argued that the award of tuition for his son was an abuse of discretion since the purported medical need no longer existed because his son takes medicine to manage his epilepsy.

If you are interested learning more about education expenses, you can contact me at Amanda@gordonfamilylaw.com for more information.

Can I deduct my travel expenses from child support?

Yes, parents who travel to visit with their children can deduct their travel expenses from child support under Family Code 4062. Travel expenses for visitation are one of the discretionary items that may be added to statutory formula support as additional support for the children.

In order to ask for a deviation from guideline support, a court may deviate from the statewide child support guideline if it finds that application of the formula would be unjust or inappropriate due to special circumstances in the particular case. Fam C §4057(b)(5).

While Family Code 4062 does not define what is meant by the term "travel expense, the Court in Marriage of Fini (1994) 26 CA4th 1033, determined that because the expenses are typically incurred by the noncustodial payer of support, this expense should actually be considered a "negative add-on," which has the effect of reducing child support. 26 CA4th at 1039 n5. The court in Marriage of Gigliotti (1995) 33 CA4th 518, 529, disagreed with the court in Marriage of Fini, finding that the court does not authorize a "negative add-on," only "additions to the guideline formula amount because of expenses set out in [§]4062."  

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.

Can I reduce my child support add-ons?

Under Family Code 4061(b), either parent can ask the Court to order apportionment of add-on child care expenses to be different than the 50/50 split. 

Parents are often surprised that Family Court can order them to pay for 50% of their child’s extracurricular expenses, even if they disagree with the extracurricular. For example, the Court can order a parent to pay for tuition of a private highschool or music lessons, even if they disagree with the choice of the child attending that highschool.

When there is a significant disparity of income between parents, it may make sense to ask the Court to use the Family Code 4061(b) setting in Dissomaster to ensure that the childcare add-on expenses are allocated proportionally based on the parents income.

This dissomaster setting can significantly reduce the portion of add-ons that a parent is responsible for covering.

Family Code 4061 provides the following guidance:

(b) If requested by either parent, and the court determines it is appropriate to apportion expenses under Section 4062 other than one-half to each parent, the apportionment shall be as follows:

(1) The basic child support obligation shall first be computed using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057.

(2) Any additional child support required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d).

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.

Are Commissions and Bonuses Income for Child Support Calculations?

Yes. If you earn overtime, commissions, or bonuses at your job, those funds will be considered income for the purpose of calculating child support.

Family Code section 4058 provides that "annual gross income ... means income from whatever source derived" and subsection (1) identifies bonuses and the Court is allowed to make a Smith/Ostler Order for support based on Overtime, bonuses or commissions received, income or earnings over set amount, and other specific income sources.

Sometimes the Ostler/Smith amount is less than what you would have been ordered to pay if the court used your last years tax return to calculate your support payments, so it’s not always something you should fear.

Typically, the court will use a percentage-based model.  For example: Payor shall pay 10% of any gross income earned over $10,000 per month as additional child support.

Or, if you use the Dissomaster software, the Court could order the following:

Payor shall pay additional child and/or spousal support based on the attached Table for income earned over $125,000 per year.

The case law that permits these calculations is based on Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, Marriage of Mosley (2008) 165 Cal.App.4th 1375, and Marriage of Tong & Samson (2011) 197 Cal.App.4th 23.

See below for a typical Ostler Smith Bonus Table. If you have more questions about Ostler Smith Orders, you can contact me at Amanda@gordonfamilylaw.com for more information.

Have you made an overpayment of your Child Support?

Experienced family law attorneys in the San Francisco Bay Area can help you calculate your child support payments and reduce them if you have made an overpayment. 

In California, the family court court has discretion to consider overpayments as a credit toward later-arising arrearages. In making its determination of whether to apply a credit, the trial court must consider any agreement between the parties as to the payment's purpose or any communication between the parents on the subject, absent fraud. In re Marriage of Peet (1978) 84 Cal.App.3d 974, 149 Cal.Rptr. 108 (CA-4, Div 2). See also Starr v. Starr (2010) 189 Cal.App.4th 277, 116 Cal.Rptr.3d 813 (CA-2, Div 8),  In re Marriage of Smith and Maescher (1993) 21 Cal.App.4th 100, 26 Cal.Rptr.2d 133 (CA-4, Div 1).

If you are considering modifying child support and have more questions, you can contact me at Amanda@gordonfamilylaw.com for more information.