Child Support Possibly Not Payable When Child Is Not Living With Custodial Parent

Child Support Possibly Not Payable When Child Is Not Living With Custodial Parent

By Marcus Morales on Apr 12, 2018 in Child Support

A child support order is a child support order. There are no ways around paying a child support order, right? Well, sort of. Two cases, Jackson and Wilson, could lead to a person not having to pay child support if the child is not living with the person receiving child support. 

In the Jackson case, the court stated that if the child is living full time with the person paying support, and no longer living with the parent receiving support, then the child support payor will not be obligated to pay child support for such time period, receiving a so-called Jackson credit. Jackson v. Jackson (1975) 51 CAl. App.3d 363.

The Wilson case takes it one step further. IRMO Wilson (2016) 4 Cal.App.5th 1011, 1016. Wilson states it is within the court's equitable power to deny enforcement of child support arrears on equitable grounds under certain circumstances. In Wilson, an obligor father sought a stay of enforcement of child support arrears on the ground that he had overpaid mother, an equitable set-aside of the child support arrears on the grounds that the child had lived with the child's grandparents, not the oblige mother, since she was two years-old, a credit for child support charged during the time the minor lived with her grandparents and a set-aside of interest on arrearages. The court noted that a "family court's discretion to deny enforcement of a support order is not limited to circumstances in which the obligor parent cares for a child in his or her own home [as in Jackson], but is broad enough to embrace a situation in which neither parent is raising the child at home."

What does this mean? It is possible that a person does not have to pay child support, or there may not be enforcement of back child support owed, if the child does not actually live full time with the parent receiving support. 

If you have a child support issue, call Morales Law for a consultation (805) 845-5405. 

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