(state of CA) Family Court vs Small Claims Court???

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Latest post 02-20-2013 2:54 PM by Hearst86. 29 replies.
  • 02-18-2013 1:39 PM

    • Mr.DBIA
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    Question [=?] (state of CA) Family Court vs Small Claims Court???

    I am the custodial parent.

    Never married to my child's mother.  We've had a rocky custody battle since 2008.  Once she realized things were not going to go in her favor, she lawyer'd up.  I never got an Attny.

    I was the victor in this particular case, but my stress level was crazy.  I am so releaved to have my daughter with me, full time - but shortly after, I filed for child support & was granted only $272 a month.


    The state had to hunt her down & withdraw the money (sometimes just a small amount) from her unemployment checks or paycheck (when she decided to work).

    The NCP was ordered to provide 100% Medical insurance (which she never has) & 50% out-of-pocket [oop] expenses (which she never has).

    In the meantime, I provided the Medical insurance for my child & have mailed the NCP bills/receipts for the oop expenses I've had.  She has said in texts multiple times that she would pay me & never has.

    My questions are....  

    • Can I take her to small claims court for the oop expenses?  
    • What about the medical coverage I have provided that she was ordered to provide?  

     

    I want to stay away from Family Law, if possible, as she has her Attny do all the talking.  In any other environment when SHE speaks, she makes my case much easier.

    The state of CA has been unsuccessful at assuring she would provide this coverage & I am owed reimbursement.  My faith in the CA Child Support Services is not much.  They have been able to get me a few payments here & there, but she is thousands & thousands of dollars in arrears.

     

  • 02-18-2013 2:01 PM In reply to

    • Drew
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    Re: (state of CA) Family Court vs Small Claims Court???

    Layman's guess--sorry the correct battleground is family court

    Now if the order orders her to provide medical coverage for the child and she has failed to provide this vital coverage and she is ordered to cover 50%  of the out of pocket and apparently has not  I think its time you rethink going on the serious offensive to get Mom cited for contempt and have her docked for any and all appropriate sanctions including but not limited to all your legal costs, back payment with interest and being darn sure the insurance is in place going forward under risk of she get to visit jail until she gets it right.

    Now part of the problem is if you don't employ a professional gladiator you have poor odds of coming out ahead in any such quests.  But if in your fact pattern her conduct is so bad as to not provide insurance and if your fact pattern supports that she might get stuck to pay for your gladiator I suggest you revisit using the best darn gladiator you can find.    Your gladiator will force her to do some talking!   You are giving her cheap victory by failing to send in a paid gladiator



  • 02-18-2013 3:22 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    Drew:

    Layman's guess--sorry the correct battleground is family court

    The reason i questioned a different route is because the judge has said, numerous times, that CA Family Court will not discuss CHILD SUPPORT and that they will only deal with Custody/Visitation. 

    I had to go through DCSS (Department of Child Support Services) to get the current child support order.   so, it's like two seperate systems i have to deal with.  we've never been "in front" of the child support court, of DCSS.  i originally filed my paperwork at the courthouse, everything after that was done through a state agency via phone or email. 

    *i edited this post, as i just got off the line with DCSS*.  they just suggested i provide them the reciepts/proof and they will tack it onto her child support bill.  but that does not assure the medical is covered in the future and that does not assure i will ever recieve reimbursment for the out of pocket expenses, as they cannot even fully recover the regular child support i am owed.

    Drew:
     Now if the order orders her provide medical coverage for the child and she has failed to provide this vital coverage and she is ordered to cover 50%  of the out of pocket and apparently has not  I think its time you rethink going on the serious offensive to get Mom cited for contempt and have her docked for any and all appropriate sanctions including but not limited to all your legal costs, back payment with interest and being darn sure the insurance is in place going forward under risk of she get to visit jail until she gets it right.
    i feel you on this... but WHO's attention would i bring this to?  Family Courts or DCSS?

    Drew:
    Now part of the problem is if you don't employ a professional gladiator you have poor odds of coming out ahead in any such quests.  But if in your fact pattern her conduct is so bad as to not provide insurance and if your fact pattern supports that she might get stuck to pay for your gladiator I suggest you revisit using the best darn gladiator you can find.    Your gladiator will force her to do some talking!   You are giving her cheap victory by failing to send in a paid gladiator

    see, that's the thing - if i wasn't having hundreds of dollars from my paycheck taken out to cover the medical insurance costs, then i would be able to afford a "gladiator" (hehe).  but i don't have any type of spare funds to throw at an attny.  they have a MEN'S LEGAL CENTER in the city i live, that provides cheap advice for men, but they more specialize in men who are the NCP or typical "deadbeat dad".  it seems an uphill battle when finding a cheap (or possibly free) legal assistance to represent a single father who has full custody of a daughter.    

    i feel like there is nobody to help someone like me. 

    (thanks for your assistance so far, Drew.  I apprciate it)

  • 02-18-2013 3:43 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    I dont see why you would not be able to sue her in small claims for the out of pocket medical. Family court will do little anyways. However on the medical if mom is always unemployed it will be next to impossible to get her to comply without having to file contempt in family court. You can add the cost of the insurance to your small claim and see what the judge decides on that but they may tell you to take that up through family court.  

  • 02-18-2013 6:04 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    If she isn't paying you as a result of a family court order what makes you think she'll pay you if you get a judgment in small claims court?

    You also run the risk that she can get the small claims case dismissed on the grounds that the matter has already been adjudicated in family court.

    She can't have a lawyer in small claims court but she's allowed to consult one and get advice and I doubt it would take her lawyer more than a few minutes to tell her how to get it dismissed.

    My advice: Be thankful you've got your daughter full time and that you're getting anything at all from your ex. It doesn't usually go that way for men.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-18-2013 6:33 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    OliviasMom:

    I dont see why you would not be able to sue her in small claims for the out of pocket medical. Family court will do little anyways. However on the medical if mom is always unemployed it will be next to impossible to get her to comply without having to file contempt in family court. You can add the cost of the insurance to your small claim and see what the judge decides on that but they may tell you to take that up through family court.  

    this is exactly what i was thinking.  If the family court is not willing to discuss support issues, thenhow are we supposed to hold somebody in contempt?  what judge would i bring it in front of?  besides a Small Claims Court judge, seeing how i've been promised (via texts, i have saved) to recieve the funds from her on numerous dates.

  • 02-18-2013 6:44 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    adjuster jack:

    If she isn't paying you as a result of a family court order what makes you think she'll pay you if you get a judgment in small claims court?

    i would just like to have any type of judgments applied against her credit so i dont have to worry about her spending money on a vehicle or new home, instead of supporting her daughter. 

    adjuster jack:

    You also run the risk that she can get the small claims case dismissed on the grounds that the matter has already been adjudicated in family court.

    i think i might have not made it apparent in my original post but, California Family Court will not discuss/review or adjudicate Support issues.  but if you were meaning that it had already been adjudicated by DCSS (Department Of Child Support Services), i dont really see a downside to this.  if it is dismissed, i'm back at the same step i am at now.  So it seems as if i have nothing to lose with filing in Small Claims Court.  Furthermore, technically, DCSS nor California Family Court has not address the specific issue brought at hand.  For Instance - My daughter needed braces.  I paid for them, with confirmation BEFORE payment from the NCP to pay for 1/2.  Then i provided receipts to the NCP via certified mail.  It's been over 90-days with bi-weekly requests to get paid.  I am always told "in a week", "in 2 weeks", etc. etc. etc.  Shes confirmed she owes me the money, but regarding the particular amount, it has not been adjudicated by anyone just yet.  i believe a small claims court judge would see the promise-to-pay via text, see the current support order and enforce it.

    adjuster jack:
    My advice: Be thankful you've got your daughter full time and that you're getting anything at all from your ex. It doesn't usually go that way for men.
    so, because my case isn't the normal i should be happy with my daughter being short-changed?

    that's the issue with the spotlight on DEAD BEAT MOMS.  There is an incredible double-standard when it comes to this issue.  We've already been told my daughter would never go back to her mother's custody, by the courts.  I have had my kid since Jan 2008.   I am not afraid to fight for what is right in my daughter best interest.  and if women can take men to court for support, custody, bills, etc - legally, there should not be any difference with me doing it to my daughters mom.   it is what is owed, simple and plain.

     

  • 02-18-2013 7:59 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:
    So it seems as if i have nothing to lose with filing in Small Claims Court.

    I agree.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-18-2013 8:40 PM In reply to

    • Drew
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    Re: (state of CA) Family Court vs Small Claims Court???

    if Mom owes you say$ 2500'as per order what makes you thing she will pay $2500 if you win in SC and get a mere judgement.

    In theory contempt of an order to paynCS or provide some feature could get Mom a trip to jail, her license revoked, or her assets attached or wages intercepted...

    I might focus on which route gets me the most leverage at the street level

    I don't know what works best in your area.



  • 02-18-2013 9:54 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    Drew:

    if Mom owes you say$ 2500'as per order what makes you thing she will pay $2500 if you win in SC and get a mere judgement.

    just to know that i would have something officially filed for each & every out of pocket medical expense.  so there is no way that my daughter (or i) have to "make-due" because of her irresponsibility. 

    Drew:
    In theory contempt of an order to paynCS or provide some feature could get Mom a trip to jail, her license revoked, or her assets attached or wages intercepted...
    but in order to have her held in contempt, i will have to hire an attny who knows the legal mumbo-jumbo, etc. etc. etc.  I am unable to hire an attny, partly due to having to pay for HER responsibility.

    Drew:
    I might focus on which route gets me the most leverage at the street level

    I don't know what works best in your area.

    good point, in theory.  i appreciate the feedback.  

     

  • 02-19-2013 2:51 AM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:

    My questions are....  

    • Can I take her to small claims court for the oop expenses?  
    • What about the medical coverage I have provided that she was ordered to provide?  

     

    I do not practice in CA, but I'll tell you my take on the CA small claims jurisdiction rules found in Code of Civil Procedure section 116.220. In a nutshell, the rules allow you to sue in small claims court for a money dispute of no more than $5,000 (which may increase to $7,500 or $10,000 in some circumstances). There appears to be no restriction on what the debt is based upon, so you may well be able to sue for the out-of-pocket expenses she owes you in small claims court.

    In general, the small claims court cannot grant equitable relief. Ordering her to provide health insurance for the child is a form of equitable relief, so if you just asked for that, the court cannot grant it. Moreover, there is already an order from another court that requires her to provide that. So, the claim would be barred anyway under principles of res judicata. Thus, I think you're stuck going back to family court to enforce that order by seeking contempt sanctions against her in order to get her to comply with the insurance requirement.

    But you'd need to verify this with a CA lawyer or ask the small claims court advisor to get a really good answer to your question. I understand that each CA small claims court has an advisor to assist small claims court litigants. I've only read the statute and have not read any applicable case law, so my research on the matter is not complete.

  • 02-19-2013 3:04 AM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:
    Can I take her to small claims court for the oop expenses?  

    No.  The court has already ordered that she pay 50% and so that is already an enforceable judgment.  Her failure to pay as ordered can be punished by contempt for failure to obey the court order.

    Mr.DBIA:
    What about the medical coverage I have provided that she was ordered to provide?

    Generally, those orders are written in such a way that the parent is only required to provide insurance if it's available through their employer or they can find insurance that is otherwise affordable based upon their income.  If she's not working, or working sporatically, there's little you can really do about it.  You can ask the court to order that she reimburse you for some of the additional premium costs you incur in order to include your child on your medical insurance.  But, again, if she'd not working, the chances of collecting are going to be dismal.

  • 02-19-2013 3:33 AM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    gemini47:
    The court has already ordered that she pay 50% and so that is already an enforceable judgment. 

    Good point. If the order is already an enforceable judgment, then you cannot go to another court to get what is effectively the same thing. Even if you could, it would be pointless because any judgment you got would do nothing more for you than the judgment you already have.

  • 02-19-2013 8:21 AM In reply to

    • Drew
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    Re: (state of CA) Family Court vs Small Claims Court???

    Your post is unclear as to why Mom is failing to perform as ordered.

    If for some economic reason it is "impossible" for her to perform that might be a workable affirmative defense as to some sanctions that could be imposed --like jail time.

    On the other hand if its merely "attitude" the courts might tire of her "attitude" and impose increasing penalities upon her.

    To some extent you need enough information to be able to prove she intentionally failed to pay  or at least discredit Mom .

    And sorry, to me at least, this quest also requires that you lay in a solid paper foundation for each and every bill or insurance issue that Mom failed to address and that you have a paper records of having request payment at least twise for each and every item.

    Other posts here suggest that some parents have been sloppy about insisting on prompt payment of the co pays and that sloppyness has hurt them.

    Its your problem to prove that Mom dropped the ball.

    Now is some jurisdictions it does become politically popular to round up deadbeat parents (ususally Dads)  and give them a court opportunity to pay or stay for jail --well often some modest $$ amount to stay out of jail  --jails are too crowded anyway. Every once in a while a deadbeat rubs the court the wrong way and the deadbeat gets a lot of time to think about it  --rare  but it happens.

    I suggest you play a better poker hand in the game before you--to change to a new table is not likley to help you as I or others above see it.

    As I see it as a layman I don't see any reason you are prevented to try to get award of  $$ judgement in SC court --just that if you are held to be  in wrong forum your odds of winning go to zip and even if you do win your odds of collecting are zip as well.



  • 02-19-2013 8:31 AM In reply to

    • Drew
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    Re: (state of CA) Family Court vs Small Claims Court???

    PS If she has the money to "lawyer up" then she has money! Someplace!  Few lawyers work for "free."

    Look, you show up at a gunfight with a rubber knife (pro se)  and she sends in a paid gunfighter even with my Dads old WW 11 vintage 38 service revolver and your outcome is predictable ?

    OK now you send in a paid gunfighter with a lawful modern full auto rifle and a pack of other lethal goodies --what does that do to the odds  --and her costs?



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