Dear guappodiablo,
The short answers to your questions are:
- California courts are required to apply the California child support
guidelines.
- To have a different state's guidelines used to calculate support, it
would be necessary to first transfer jurisdiction over the case to
that different state.
I. Is there a way to convince a California court to apply a child
support scale from a different state?
California courts are required by statute to apply the California
child support guidelines to cases within their jurisdiction:
-----------------------------
California Family Code, Section 4052
The court shall adhere to the statewide uniform guideline and may
depart from the guideline only in the special circumstances set forth
in this article.
-----------------------------
The Legislative Counsel of California makes California's statutes
available through its website. The statutes governing the use of the
child support guidelines, including the section quoted above, can be
read on that website at:
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=7542639429+6+0+0&WAISaction=retrieve
The public policy rationale for this rule is that California's
guidelines are calculated to reflect the costs of supporting a child
within California. To provide for a lower amount of support based upon
the guideline from another state might leave a California child
without adequate food, shelter, and housing, and might also make the
child dependent upon state aid.
II. Is it possible to use the Colorado system?
Your initial opportunity to use the Colorado system would have been at
the time of the original divorce. It is not unusual in cases such as
yours for divorce actions to be filed in the courts of two separate
states, which must then resolve the issue of which properly has
jurisdiction over the minor child. As your divorce was resolved in
California, the California court has continuing jurisdiction over
issues relating to the minor child, including custody, support, and
parenting time. This means that, until the child reaches adulthood or
the case is transferred to another court, the California court will
have jurisdiction over all disputes between the parents relating to
the care and custody of the child.
Unfortunately, the law of jurisdiction can seem complex to
non-lawyers. A good overview of issues of jurisdiction is provided
through the "California Divorce Handbook" website, produced by The Law
Offices of Peter M. Walzer:
http://www.california-divorce.com/jurisdiction/complexrules.html
Had your divorce been resolved in Colorado, the Colorado court would
have ordered support based upon the Colorado guidelines. The
California court would only have been allowed to revisit the issue of
support under the California guidelines if it was able to assume
jurisdiction under California's version of the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) - a federally required
statute which regulates how jurisdiction over child custody and
support matters can be transferred from one state to another.
California's version of this statute can be read through the
Legislative Counsel of California's website:
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=%22uniform+child+custody+jurisdiction%22
However, as your case is already before the California courts, the
relevant statute for you is Colorado's version of the UCCJEA.
(Although if you compare the two statutes, you will see why they are
called "uniform" - one the whole they are very similar and the key
provisions are identical). The full statute is made available by the
Committee on Legal Services of the Colorado General Assembly through a
contractual arrangement with the LexisNexis Group, which maintains the
website:
http://198.187.128.12/colorado/lpext.dll/Infobase/dbe2/df0a/e0dc?fn=document-frame.htm&f=templates
The Colorado UCCJEA is also available, albeit less handsomely
formatted, through the State of Colorado's website:
http://www.state.co.us/gov_dir/leg_dir/olls/sl2000/sl.320.htm
In order for a Colorado court to change the support order, it would
have to be able to take jurisdiction under Section 14-12-203 of the
Colorado Revised Statutes:
-----------------------------
14-13-203. Jurisdiction to modify determination. (1) Except
as otherwise provided in section 14-13-204, a court of this state may
not modify a child-custody determination made by a court of another
state unless a court of this state has jurisdiction to make an initial
determination under section 14-13-201 (1) (a) or 14-13-201 (1) (b)
and:
(a) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under a provision of law adopted by
that state that is in substantial conformity with section 14-13-202 or
that a court of this state would be a more convenient forum under a
provision of law adopted by that state that is in substantial
conformity with section 14-13-207; or
(b) A court of this state or a court of the other state
determines that the child, the child's parents, and any person acting
as a parent do not presently reside in the other state.
-----------------------------
In other words, the Colorado court must first find that it has a
statutory basis to assume jurisdiction and that the Colorado court
would be a more convenient forum for resolution of the case than the
state which presently has jurisdiction, or it must find that neither
the child nor the child’s parents reside in the other state.
The bases presented for assuming jurisdiction are temporary emergency
jurisdiction under Colorado Revised Statutes section 14-13-204, which
can come into play if a child is in potential danger while in the
state of Colorado, or subsections (1)(a) and (1)(b) of Colorado
Revised Statutes section 14-13-201:
-----------------------------
14-13-201. Initial child-custody jurisdiction. (1) Except as
otherwise provided in section 14-13-204, a court of this state has
jurisdiction to make an initial child-custody determination only if:
- (a) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and the
child is absent from this state but a parent or person acting as a
parent continues to live in this state;
- (b) A court of another state does not have jurisdiction under a
provision of law adopted by that state that is in substantial
conformity with paragraph (a) of this subsection (1), or a court of
the home state of the child has declined to exercise jurisdiction on
the ground that this state is the more appropriate forum under a
provision of law adopted by that state that is in substantial
conformity with section 14-13-207 or 14-13-208, and:
- - (I) The child and the child's parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence; and
- - (II) Substantial evidence is available in this state concerning
the child's care, protection, training, and personal relationships;
-----------------------------
Under the first provision, Colorado would only assume jurisdiction if
the child moves back to Colorado, or if your ex-wife moves back to
Colorado. (This means an actual change of domicile, not just a visit.)
Under the second provision, if your wife moves out of California, it
might be possible to convince a Colorado court to assume jurisdiction
over the case. This would entail the Colorado court contacting the
California court, to see if it will consent to the transfer of
jurisdiction to Colorado. However, even if the California court agrees
to transfer jurisdiction, if the child resides with your ex-wife
outside of Colorado, she could likely achieve transfer of the case to
the state where she resides as opposed to Colorado. Why? For the same
public policy reasons discussed above - the state where the child
resides not only has greater ties to the child, but has an interest in
seeing that the child receives proper and adequate support.
Once the case is transferred to a different state, that state's courts
could be invited to revisit the amount of child support awarded based
upon its own child support guidelines.
Due to the complexity of these issues, if you believe there is any
basis for a transfer of jurisdiction to Colorado you should discuss
the matter with a family lawyer who is licensed to practice in your
state.
Research strategy:
In addition to my own experience handling Michigan family law matters,
I used the following sources:
Google searches:
- California statutes
- California UCCJEA
- Colorado statutes
- "Except as otherwise provided in section 14-13-204" colorado
Legislative Counsel of California statute searches:
- "child custody"
- "uniform child custody jurisdiction"
http://www.leginfo.ca.gov/
LexisOne search (LexisOne is a free database of recent case law):
California state law database, search term "("child support" /4
(guidelines or formula)) & ((guidelines or formula) /p (requir! or
mandat!))"
http://www.lexisone.com/
Browsing Colorado statutes, hosted by Lexis/Nexis:
http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0
I hope this answer provides you with the information you need. Good
luck,
- expertlaw |
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