Setting Aside a Child Support Order from DCSS

Whenever a parent or child is receiving cash aid through a State of California government cash assistance (welfare) programs, such as the California Work Opportunity and Responsibility to Kids program (CalWORKS), a California Department of Child Support Services (DCSS) child support case will be opened for the parent receiving aid.

The request by the parent receiving welfare is automatically forwarded to DCSS. After receiving the information, DCSS works to create and enforce child support orders from DCSS in order to ensure the State of California spends less on supporting its residents, and that parents of children in need step up and make necessary child support payments. DCSS will do this by obtaining information from the parent receiving California government cash and filing a Request for Order for child support from the other parent.

Although DCSS is not the attorney of record for the party receiving California aid, its interests are often aligned with that party, in that both want to ensure the other parent is properly supporting their child or children. California Family Code section 4053 provides that both parents are mutually responsible for the support of their children and that a parent should pay for the support of children according to the parent’s ability.

DCSS does not charge for its services. Thus, a parent, or parent of a child, that is receiving CalWORKS does not need to pay DCSS for obtaining a California child support order. DCSS is required by law to open a DCSS support case whenever a child is receiving CalWORKS benefits.

If a parent receiving aid from the state requests child support from family court, the case will be transferred to DCSS. If this is the first time the court is making a support order, then DCSS will work to assist the court in setting that order.

If there is already a child support order in place, depending on the circumstances, DCSS may file a Request for Order requesting an increase in the amount of child support due from the other parent, or to enforce the current order if the other parent is not current with their child support payments.

Default Judgment in a Child Support Case

In making this order, the court will need to know the gross incomes for both parents, the amount of time each child spends with each parent, and other important financial information about the parents and children.

DCSS will always reach out to the supporting parent to provide notice of the proceedings and an opportunity to be heard regarding support. If DCSS has properly followed procedure in giving notice to the other party and still does not hear back from the supporting parent, it may continue to proceed with requesting the court make support orders.

In doing so, the court will hear from the supported parent any evidence he or she may have regarding the other parent’s income or ability to earn income. This is called a default order, which will be based solely on the other parent’s presumed income.

Setting Aside a Default Child Support Judgment

When default child support orders are made based on presumed income, the court may, “on any terms that may be just,” set aside that part of the order concerning the amount of child support to be paid. Under California Family Code section 17432, a child support order may be set aside if a parent’s income was “substantially different” from the income that he or she was presumed to have.

This applies even if the income was higher than the court presumed, therefore a request to adjust the income amount can be made by DCSS, as well as the supporting parent. Whichever party is seeking relief bears the burden of proving the actual income.

A party seeking to set aside a default DCSS child support order based on presumed income needs to file a motion with the court requesting set aside the DCSS child support order that was based on presumed income. The party filing for such set aside relief should provide the court with copies of pay stubs, tax returns, a W-2 tax form, a 1099 tax form, or other such financial documents in order to provide the court with proof of the parties’ actual income to show that the income was substantially different, either higher or lower, than the presumed amount. This set aside motion must be filed within one year of DCSS receiving the first payment of support.

There are additional protections for military servicemembers who are defaulted during their military service. Under the Servicemembers Civil Relief Act, no default order may be made against a person in military unless an attorney was appointed to protect his or her interest.

If a default DCSS child support judgment is entered against a servicemember during the servicemember's period of military service, or within 60 days after termination of or release from such military service, the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that the servicemember was materially affected by reason of that military service in making a defense to the action; and the servicemember has a meritorious or legal defense to the action or some part of it.

The Servicemember wishing to request relief from a default DCSS child support order must file an application no later than 90 days after his or her date of termination of or release from military service. United States Code, Title 50 §3931.

If you have been imputed with a presumed income for child support by DCSS, call Cage & Miles, LLP to speak to an attorney about creating child support orders that fairly matches your income.