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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Family Law
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Experience:  Experienced, and knowledgeable family law attorney.
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After a domestic violence incident involving my ex-husband

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After a domestic violence incident involving my ex-husband and our eldest daughter (and indirectly, me), he moved out of state and stopped paying child support. We had a restraining order against him for one year. He is self-employed as a building contractor. I made the decision not to go after him for the child support because I didn't have the money to pay a lawyer anymore (the DV case cost me thousands) and we are afraid of him. I was in fear that if I went after him for child support he would react badly and my life might actually be in danger. This was in 2008. My daughters are now 20 and 17. He does nothing to help them financially. Was it a bad move for me not to pursue the child support? If we end up in court again, would a judge hold it against me? I've been worrying about it for years...Thank you for help.
Submitted: 1 year ago.
Category: Family Law
Expert:  S. Huband, Esq. replied 1 year ago.
Thank you for the opportunity to assist you! If you find my response helpful, please rate it positively so that I can receive credit for my work.

Q) Was it a bad move for me not to pursue the child support?

I'm not so sure this is a legal question so much as a "human" question. In other words, after the domestic violence incident, the "Ex" left the state, and it sounds like you and the family breathed a giant sigh of relief at his departure. Had you immediately begun child support proceedings then, it's unlikely Ex would have simply said, "Golly, honey, you're right. Who do I make the check out to?" He might have gone berserk and who knows what would have happened.

So, if you have made things work reasonably well without Ex or his money in your life since that time, it certainly sounds like to me you made the right decision.

Q) If we end up in court again, would a judge hold it against me?

I'm guessing you mean if you began a child support action now, after X years having gone by, you are concerned that the judge would say, "Look, lady! Why did you wait all this time!?!?!"

There are two possible scenarios here:
1. You had a valid child support order in place back when you and he divorced, but you never enforced it because you were afraid of him. (Ever heard the expression, "Like throwing gasoline on a fire..."?

2. You did not get a valid child support order back then and you do not have one in place now.

If your case is scenario #1, there is actually no statute of limitations (that I can find) on collecting back owed child support in California. Most states have a limitation on time, but California does not appear to have any. I looked but could not find a specific reference in California Civil Procedure Code 335.349.4 to child support actions. (That code section is where the statute of limitations ruled are announced for all civil claims.) Thus, since there is no limitation announced in the code, and if you had a valid child support order, you can enforce it now.

If your case is scenario #2, you may have a bit of an issue. California requires parents to support their children until their 19th birthday, i.e. not up UNTIL 18 but THROUGH 18 years of age. Obviously, if you went to get a child support order now, your younger daughter would clearly qualify. You might have an uphill battle getting a support order on a 20 year old, if no order previously existed.

I would consult a licensed California attorney or the child support enforcement office in your area and inquire whether or not it is possible to get child support now on either or both of your children. If you cannot afford an attorney, perhaps the Legal Aid office could be of some help.

One final issue. The statute of limitations issue I raised above is a defense. In other words, if I claim SOL as a defense, I am saying, "Too much time has gone by and I cannot now be sued." Even though California appears to have no SOL for child support, certain other common law equitable defenses could still apply. The one that comes to mind is laches, which is a common law (i.e. ancient English law) version of statute of limitation. It is also says, "Too much time has passed; no law suit for you!" Another equitable defense is called "waiver" which is exactly what it sounds like. The defense means that a person "waives" the right to sue due to this reason or that. (I doubt this applies, based on what you've said.)

My point here is that, if you are interested in seeking child support, you should act soon so that your and your daughters' rights are preserved and he does not have a way to much up things by claiming you waited too long.

Ultimately, if you do initiate a child support action, your Ex will be back in the picture. He may not be living with or seeing you and your daughters every day, but his presence will likely be "felt." You may have to "deal with him" to some degree, at least to the extent you have to see him in and around court, etc. It's up to you to decide how much you are willing to revive contact with him after all these years. If the past was truly terrible, how different will he be to deal with now? A rhetorical question, obviously. Something to think about.

I wish you the very best with this matter. Take care,
Shuband
S. Huband, Esq., Attorney
Category: Family Law
Satisfied Customers: 1140
Experience: Experienced, and knowledgeable family law attorney.
S. Huband, Esq. and 5 other Family Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

I am writing to follow up with you to see how everything is going. It appears you last viewed my most recent response on 9/30/12 at approximately 11:38 P.M. Did my response to you help? I sure hope so!

If so, please click "accept" on the answer and/or rate my response to your question positively so that I can receive credit for my work. Otherwise, please let me know how else I might be able to help you.

Thank you again for the opportunity to assist you. I wish you the very best with this matter!
Shuband
Expert:  S. Huband, Esq. replied 1 year ago.
Hello again!

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely hope the legal matters we discussed turn out well.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,
Shuband

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