While yesterday in court the judge disagreed with me, in my opinion California law does not make this a prerequisite.
One component of the uniform guideline formula is the "H" factor, which represents the "approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent." Thus, the only relevant argument for the higher wage earner to make is that he, or she, has primary responsibility during the time at issue
The courts have considered cases of disabled adult children in a care home, children in school or daycare, and even a child in boarding school held in each that it is proper to credit the custodial parent with the parenting time. The courts focus on "primary physical responsibility" not actual physical custody or presence - adult disabled child in care home (In re Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1160).
Daycare-"It is the custodial spouse who, after all, has the burden of finding, arranging and fronting the money for appropriate day care, who must deliver and pick up the child, and whose workday will be interrupted if there are any medical or other emergencies" (In re Marriage of Whealon, 53 Cal. App. 4th 132.)
In summary, according to In re Marriage of DaSilva, (2004) 119 Cal. App. 4th 1030, if a parent desires credit for time the child is not physically with him or her, then the parent has the burden of producing admissible evidence demonstrating he or she is primarily responsible for that child during those challenged times. Relevant factors include: (1) who pays for transportation or who transports the child; (2) who is designated to respond to medical or other emergencies; (3) who is responsible for paying tuition (if any) or incidental school expenses; and (4) who participates in school activities, fundraisers, or other school-related functions.
In short, just because your child does not live with you does not necessarily mean you can't get child support. However, I may need to file a Writ to get this point across.
The Law Offices of James V. Sansone assists individuals in child custody disputes and other family law issues throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.