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San Mateo County Divorce Attorneys

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Emergency Screenings in Santa Clara County Family Courts

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What Is an Emergency Screening?

An Emergency Screening is ordered to assist the court in determining the health, safety, welfare, and best interests of the child regarding the current emergency related to child custody and visitation.  An Emergency Screening is an urgently needed and time limited examination conducted by an investigator from Family Court Services, focusing on emergency issues and resulting in written recommendations to the court.

When Is an Emergency Screening Appropriate?

Emergency Screenings are a limited resource which should be reserved for cases involving true emergencies pertaining to a child’s immediate health, safety, or welfare.  The court will send a case to an Emergency Screening only if it is necessary due to an imminent risk to the child.

Pursuant to the Guidelines, an Emergency Screening is appropriate when:

  • There is evidence that the child may have been abused, neglected, or endangered;
  • There is evidence of child abduction or legitimate concern related to potential child abduction;
  • A parent is denied access to the child and there is no visitation order;
  • A move away issue is related to the emergency safety issues;
  • There is significant evidence that the child is suffering severe ongoing distress related to the existing time-sharing arrangements;
  • A parent is severely developmentally or psychiatrically disabled and the judge is therefore unable to determine an appropriate temporary time-sharing arrangement; and
  • Medical neglect that endangers a child.

What Happens at an Emergency Screening?

Before the Screening:  Each party may submit documents, certificates, photos, records, letters, etc. to the screener so long as everyone in the case has been given a copy.  A signed declaration made under penalty of perjury or a copy of a proof of service is required.  The limit for documents is 15 pages.  Attorneys will meet with their assigned screener for about 15 minutes.  Counsel will have the opportunity to tell the screener what they allege is a safety concern, deny is a safety concern, and feel would be best for the child.

During the Screening:  First, the screener will interview the parents.  Domestic violence victims are entitled to have separate interviews and may have a support person attend the screening.  The screener will then review the court file and selected documents or materials related to the emergency issues.  The screener will:  (1) conduct criminal record checks on all adults living in the home; (2) conduct a Child Protective Services history check; (3) interview the child(ren); (4) observe the child(ren) interacting with the parents or other family members; (5) interview other family members or witnesses by phone or in person; and (6) collect additional data from school, daycare, physicians, police, etc.

After the Screening:  Upon completion of the Emergency Screening, the screener will present written recommendations to the parents, attorneys, and the Court.  If both parents agree to the recommendations, they will become court orders.  If either parent does not agree with the recommendations, they will be presented to the judge and the parents will have a short hearing at the conclusion of which, the judge will make immediate, temporary orders related to child custody and visitation.

For more information about Emergency Screenings, please visit https://www.scscourt.org/court_divisions/family/fcs/fcs_home.shtml or contact a family law attorney who practices in Santa Clara County.

Holiday Tips for Divorcing Families

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  1. Make a detailed holiday plan and keep the children informed of the plan. Planning and predictability helps children cope with the often-intense emotions and expectations of the holidays.
  2. Be open and flexible. Although it is important to have a detailed and specific plan, changes are inevitable so don’t adhere too rigidly to your plan.
  3. Make early travel and logistical arrangements and provide the other parent with a copy of the travel itinerary and emergency contact information. This avoids last minute confusion and significantly decreases risk of conflict.
  4. Include the children in making the plans. If the children are old enough, include them in discussions about the development of new, post-separation holiday traditions, but make sure they understand that the final decision making is up to the parents.
  5. Create space for the children to describe their holiday experiences at the other parent’s home while still respecting their privacy and avoiding interrogation.
  6. Create new holiday traditions. Even though the family structure is now altered, invite the children to work with you to help create new personalized traditions while still honoring the old traditions.
  7. Holidays are not the time to introduce new romantic partners or other emotionally charged information such as a move.
  8. Make pick-ups and drop-offs conflict free. Avoid the temptation to discuss separation or divorce issues with the other parent during holiday drop-off and pick-up times as tensions are heightened and the children sense this.
  9. Email communication should be brief and focused. This is especially important during the holidays. Limit emails to one topic using one paragraph of five sentences or less and send no more than two emails per day, absent an emergency.  Keep the focus of your emails on the children and try not to repeat yourself.  Make sure emails are between the parents, not significant others or step-parents.
  10. Give yourself a break. Holidays can be stressful in the best of circumstances.   It is to be expected that you will struggle with difficult feelings and behaviors.  Do your best to parent cooperatively and put the children first but understand there is no right or perfect way for divorcing families to manage the holidays.

Adapted from Kids First: What Kids Want Grown-ups to Know about Divorce and Separation by Peg Libby (AFCC Ask the Experts).

High Income Earners and Child Support

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Guideline Child Support Presumptively Correct. The uniform California Child Support Guidelines (Fam. Code §§ 4050 – 4076) are typically used in setting the amount of child support. California law provides that the guideline formula (e.g. the figure calculated by DissoMaster) is presumptively correct. (Fam. Code §§ 4053 (k), 4057(a)). However, in limited circumstances, the Court has the authority to deviate from guideline child support where a parent provides admissible evidence showing that the use of guideline would be unjust or inappropriate under the circumstances (Fam. Code § 4057(b)).

The Extraordinarily High Income Earner. One instance where the Court can exercise its discretion to deviate from guideline arises when the payor parent has an extraordinarily high income and the guideline amount would exceed the needs of the child. (Fam. Code § 4057(b)(3)). When a parent seeks a downward deviation from guideline under this section, he or she must prove that application of the guideline would be unjust or inappropriate, and that the lower award would be consistent with the principles set forth in Family Code Section 4053 (which, among others, include that a parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life, both parents are mutually responsible for the support of their children, and the children’s best interests are the top priority). (Fam. Code §§ 4057(b), 4053).

Two Recent High Income Earner Child Support Cases. Two recent California appellate opinions addressed the issue of high income child support, and reached two different results. One case, S.P. v. F.G., affirmed the trial court’s order which deviated downward from guideline and ordered a reduction in high income earner Father’s child support obligation by about $25,000 per month less than guideline, based on a finding that Mother’s proposed expenses were unreasonable. (The Association of Certified Family Law Specialists submitted a request to depublish S.P. v. F.G.). Another case, Marriage of Usher, reversed the trial court’s order which also reduced the high-income earner Father’s child support obligation. In that case, the Appellate Court held that income is only one component to consider when making child support awards, and that given Father’s extreme wealth, a reduction in his income alone was not a sufficient change of circumstances warranting a downward modification.

A summary of both cases is provided below. For more information on this issue, please consult with a family law attorney.

S.P. v. F.G. (2016) 4 Cal. App. 5th 921. In this high income earner child support case, the trial court ordered Father to pay Mother $14,840 per month, a significant reduction from the guideline figure of $40,882 per month. (S.P. v. F.G. (2016) 4 Cal. App. 5th 921, 927). The trial court concluded that the guideline amount would be unjust or inappropriate because the Father had an extraordinarily high income and the guideline amount would exceed the needs of the child. (Id. at 928 – 929). The Court of Appeal affirmed the lower court’s order. (Id. at 936). Despite Father offering no evidence of the child’s reasonable needs, what amount of child support was in the child’s best interest, or why guideline was not in the child’s best interest, the trial court, finding that Mother’s proposed financial needs were unreasonable, (e.g. housing cost of $34,950 per month, entertainment, gifts, and vacation cost of $8,300 per month, $3,750 per month for the child’s clothing and dry cleaning costs, and $1,200 per month for the child’s cosmetology, massages, and spa treatments) deviated downward from guideline. (Id. at 927 – 929). The Appellate Court stated that the trial court properly declined to rubber-stamp mother’s claimed needs or to simply defer to the guideline amount. (Id. 934).

Marriage of Usher (2016) 6 Cal. App. 5th 347. In this high income earner child support case, the trial court issued an order reducing Father’s child support payment from $17,500 to $9,842 per month, based on his decline in employment income. Marriage of Usher (2016) 6 Cal.App.5th 347, 350. Holding that Father’s decline in employment income did not support reducing child support in light of his overall wealth (including assets of over $34M), the Court of Appeal reversed the trial court’s order. (Id.). The Court of Appeal stated that Father’s reduction in income, standing alone, did not constitute a sufficient change of circumstances warranting a reduction in child support as it is “inappropriate” to base child support on income alone where a payor parent has substantial non-income producing assets. (Id. at 359). The Court of Appeal also held that Husband’s assets could generate a 4.5% rate of return.