“Rich Dad, Poor Dad” in Family Court
April 29th, 2013
Rich Dad, Poor Dad is a book by Robert Kiyosaki. The book advocates financial independence through investing, real estate, owning businesses and increasing one’s financial intelligence. This of course sounds good, but many dads (often, but not always, the family breadwinner) who have such wealth and good fortune find themselves feeling not only poor but a bit helpless when a support order is made as part of a divorce or paternity action.
In California, most child support orders are set in an amount which for the most part is formulaic based upon certain criteria, the primary ones being income and the amount of time each parent spends with the children. This formula no doubt “redistributes” the wealth as a means of ensuring children are supported. Many breadwinners are upset because (1) they quickly find out that they must pay support even when, as often occurs, the other parent makes their access (visitation) with the children difficult; and (2) the breadwinner discovers they have no right to obtain an accounting of the child support to ensure the money is being used to support the children, rather than the other parent. Excluding cases where domestic violence is found to exist, are there solutions to this disparate treatment of the breadwinner?
Interference with Visitation – No Practical Remedy Makes for an Unfairly Treated Breadwinner
The law is clear. Whether or not the breadwinner is paying support, and whether or not the non-breadwinner feels the support order is sufficient, money and children are not connected. In other words, a custodial parent (often the non-breadwinner) is not supposed to withhold visitation for financial reasons; and the non-custodial parent (often the breadwinner) is not supposed to withhold child support over custody and visitation disputes. It is difficult to prove if the custodial/non-breadwinner parent intentionally interferes with visitation; but it is easy to prove when the non-custodial/breadwinner parent fails to pay support. This proof disparity often results in the non-custodial/breadwinner paying support but being unable to enjoy time with the children, which can make this parent feel at a disadvantage and unprotected by the family courts. This is not easy to solve without producing substantial evidence demonstrating an intentional interference with the visitation schedule by the other parent. Unfortunately, there is no other answer to this problem.
Accounting for Use of Child Support – Not the Law, but Should the Law Change?
As demonstrated above, the non-custodial/breadwinner parent can be at a real disadvantage with no real way to remedy the imbalance between paying child support and lacking full visitation. Where there can be some balance between these issues and therefore between the parents is through an accounting of how the custodial/non-breadwinner uses the non-custodial/breadwinner’s child support
In California, except in limited cases, requesting an accounting of how the child support funds are used, or requiring that the support funds be paid into a trust account as a means of monitoring the use of funds, have each been flatly rejected by the state Court of Appeal. The court believes that that the recipient of child support (usually the custodial parent/non-breadwinner) should not be under the “fiscal control” of the other parent. This is a bitter pill for the non-custodial/breadwinner parent to swallow especially when their access to the children is being interfered with without any real penalty to the recalcitrant parent. This is a patently unfair situation which only works to cause resentment. Why should the custodial/non-breadwinner parent be allowed to essentially interfere with visitation and not have to account for the child support received from the same parent who is being marginalized in the children’s lives?
For now, the law is what it is, so what can the non-custodial/breadwinner parent do to ensure some or all of the child support is actually being used to benefit the children, rather than the recalcitrant other parent? The best solution in most cases is to designate that certain expenses will be paid directly by the non-custodial/breadwinner parent. Therefore, the non-custodial/breadwinner parent would directly pay pure child expenses, such as school, daycare, camps, regularly occurring medical expenses (including therapy), religious school, tutoring, extracurricular activities, etc. This is often not agreeable to the custodial/non-breadwinning parent, who may feel that such control does not allow establishing the financial independence necessary for the parents to live separate lives. If an agreement cannot be reached for this type of arrangement, then often the judge will, but this will require the time and expense to go to court.
Many people speak in terms of “Father’s Rights” or “Mother’s Rights,” but custody issues are really gender neutral. This means that the same unjust result can affect a man and a woman the same way in different cases, depending on who is the breadwinner and non-breadwinner; custodial parent and non-custodial parent. Because many families do still mirror the traditional “Leave it To Beaver” parental roles, people talk about certain injustices being a “man’s” issue or a “woman’s” issue. The issues presented are unjust as they affect the breadwinner who is often the non-custodial parent. When this person is the Dad, the issue is typically referred to in terms of “Father’s Rights.” However, this is increasingly a misnomer in today’s modern family.