The word “timeshare” isn’t just a piece of vacation real estate in the Bahamas. When it comes to children and custody, it’s the hours during the week, month and year they spend with each parent. Two parents who share a schedule that allows them to see their children 50 percent of the time have an equal timeshare. The percentages vary from one divorce case to another. But timeshare isn’t just time. Timeshare is money – sometimes lots of it, to the tune of thousands of dollars per month – and the parent with the greater time often receives the greater money. Unfortunately, it is this simple fact that accounts for many family court custody battles when one parent seeks a change in custody not for the children’s best interest but solely to modify child support.
Our firm has seen it all. Although we go through a careful screening process to ensure the clients we represent don’t intend to use the children as leverage, most divorce lawyers simply don’t care. If someone walks in through the door and plops a retainer down, there aren’t too many family law attorneys who send the client away because they have the wrong intentions. That is where you get the cases that involve a whole host of methods we have seen parents use to artificially change the child support number, up or down. They include:
- Alienating the children, especially when younger and more impressionable, from the other parent;
- False allegations of abuse or neglect;
- False allegations of drug or alcohol abuse;
- Pressuring the children to state a “preference” with whom they want to live. This occurs most often when children approach teenage years;
- Lying about the time a parent can actually spend with the children;
- Playing an unhealthy role of “friend” with the children, parentifying them or creating a Disneyland environment
- Undermining the other’s parent’s discipline or authority
The ones I have highlighted are a form of child abuse.
But why? Are some parents who are embroiled in custody cases so out of touch with their children’s best interest that they would emotionally abuse them and cause short and long-term psychological harm just to get more money or pay less? Consider the following:
- The California divorce system is a broken one and based on the civil “adversarial” system. Therefore, an already bitter and sometimes hostile breakup or separation is exacerbated by a justice system that pits the parents against each other in court;
- Child support is based purely on a computer program and data inputted into that program, “timeshare” with the children being the single most important factor;
- There is no “screening” process by which a parent must first demonstrate his or her custody request with the Court is genuine and in good faith. Only the Judge who unfortunately has thousands of cases on his or her docket and no time to read everything, much less weed out frivolous cases, is the final word.
How do you fix this? It’s not easy fixing parents who are determined to use their children as leverage to increase or reduce their child support by thousands of dollars and we certainly cannot burden an already overcrowded and overwhelmed family court with more tasks. The solution is simple and places the burden where it should be – on the parents and their lawyers who come to court with ill motives. What is the solution?
If a parent is found to have brought a child support modification request or opposed one in bad faith (regardless of whether that parent is asking for an increase or decrease), that parent “shall” be sanctioned for the actual amount of lawyer’s fees incurred by the other parent. The Court would have the narrow discretion to adjust those fees if some of the work was unnecessary (this will dissuade lawyers from churning files).
You may wonder, “Robert, doesn’t the California Family Code already have a fee award provision?” Yes, but it has little teeth in such situations. The Family Code gives fees in two ways – one is based on “need” and “ability” to pay. What happens when a parent with a middle class income files a child support request that is based on the type of conduct we have discussed here? Usually, they get away without paying a dime of the other parent’s fees. That is because the Court often determines they don’t have the ability to pay. The statute is designed to help the parent without money and to bring parity. When parents make the same or similar amount of money or the offending parent makes less, this statute is useless.
The second statute is a “sanction” (punishment) but it also has the limitation of ability to pay under the guise of “undue hardship.” Once again, Courts don’t award sanctions as often as they should against these types of requests because they use undue hardship as an excuse.
What I propose works better because parents with proper child support cases would not hesitate to come to Court. They would know that if the other parent opposed the request in bad faith, the parent bringing the child support request would not only get support but his or her lawyer’s fees in a court order. Parents who intend to harm the other by making bad faith requests or intend to use the children as leverage would hesitate. It’s one thing for a parent to go to Court when he or she has nothing to lose. It’s quite another when that same parent learns that doing the wrong thing and using children as leverage to increase or decrease support will come with an attorney fee bill…and not just his or her own.