A Custodial Parent Who Has the Practical Day-To-Day Responsibility of a Child Will be Credited Time-Share Hours for Day Care

After the Orange County divorce, mother, retained physical child custody of the minor son and father, received liberal visitation rights. Mother lost her job as a radar engineer in California, and found a new job in New York, where she wished to relocate while maintaining physical child custody of the child. The Orange County divorce court ruled in favor of mother and permitted her to relocate to New York. Additionally, mother’s Orange County divorce lawyer brought an order to show cause (OSC) to obtain an upward modification of child support from father.

The divorce court awarded three separate modification orders. The first, $500 per month, plus half of child care expenses of $269. The second order was at $950 per month and with no childcare expenses. The third, $611 per month plus half of any child care expenses not to exceed $200. In response, father’s Orange County divorce lawyer argued that the divorce court erred by using his last month’s gross income of $6,062 instead of his average income over a 12-month period, at $5,680. However, the appellate Court denied father’s Orange County divorce lawyer’s argument because it was not raised at trial.

Second, Steven’s Orange County divorce lawyer argued that trial court had calculated the child support order based on an incorrect time-share factor. The divorce court had calculated the order based on a 20% time-share factor, and not based on the correct 28% time-share factor. The error was brought to the divorce court’s attention, and the court elected to estimate what the DissoMaster (computer program for calculating child support) would have yielded as the correct child support order based on a 28% time-share factor. The Court of appeals held that this was an inappropriate determination by the Orange County divorce court and that the Orange County divorce court had to determine the correct child support amount under the guideline formula. Thus, the Court held in favor of the father, that the divorce court had to recalculate child support based on the correct 28% time-share factor.

Lastly, father’s Orange County divorce lawyer argued that mother should not be given time-share credit for time the child spends in day care, because he pays for half. The Court explained that it is the custodial parent who has the practical day-to-day responsibility of the child. Further the custodial parent has to find, arrange, and front the money for the daycare, determine who will pick up and drop off the child, and whose day will be interrupted for any emergencies. Thus, mother was entitled to receive time-share credit for hours the child was in day care.

In re Marriage of Whealon (1997) 53 Cal. App. 4th 132