Discussion of the highlights of notable Appellate Court rulings.
As a family law attorney, I like to stay up to date on the latest Appellate Court rulings so I can better predict how a judge may interpret various arguments in future cases. This week’s appellate court cases have raised some interesting points.
Psychologists May Be Biased
In one recent case, the Court of Appeal overruled the trial court for not firing a psychologist who took the dad’s side too strongly in the court-ordered evaluation. This is one of two cases where the Court of Appeal mandated that a psychologist be removed from a case for bias. While a court-ordered psychologist is allowed to communicate with the mother and the father, they are not to take sides unfairly nor are they allowed to secretly communicate with lawyers. Just as with lawyers, there are good psychologists and bad ones. When we are dealing with lives of children, great care must be taken to not overreach or make false assumptions.
If Parents Have the Ability and Opportunity to Work, They Must Pay Support
During a separation, mothers and fathers have a tendency to get unreasonably angry at each other. This is a common side effect of a divorce. The person who makes more money also seems to have a tendency to develop sudden income deficit disorder. Depression, distractions, and selfishness are only a few reasons that can play into this result.
Today we had a case confirming that a father must pay child support based on his income at a previous job from which he was terminated because he was proven to still have both the ability and opportunity to work.
Marriage of McHugh 2014 DJDAR 15843, is a decision out of the Orange County Child Support Division. The father told the court that he lost his commission sales job and was at a lower paying job. He asked the court to reduce his support accordingly. What the father neglected to mention was that he had been fired and sued for diverting sales to another company to hide income from the court.
It is surprising how many people think it’s a good idea to hide their income from the court. Here we have an excellent example of why it is stupid to do that. We also have an excellent discussion on the court’s role in holding parents accountable for meeting their obligation to support their children.
If a parent has marketable job skills (ability) and a job offer or opportunity is known to exist (opportunity), the burden then falls on the parent to show he or she could not secure/keep the job despite all reasonable efforts. This is common sense. You can give somebody 200 job offers (or offer to keep employing them), but they have to work, get off the couch, look presentable and actually try to get/keep the job. Failing to make this effort does not exempt the non-working parent from paying the support their child needs.
It is not uncommon for divorce attorneys to send job opportunity ads in the mail to the other side. If the other side then fails to try to get the job, this will go against them in court. So if your ex is refusing to get off the couch, you can certainly send them want ads to answer every week. If they are stupid and do nothing meaningful to try to get the jobs, this could be very helpful to you at court later on.
And of course if you have a job, do everything you can to keep it.
Life is hard, but it is even harder if you’re stupid.
Best,
Tom Kendall
