Changes Made Simpler in Custody Payments

Question: I read somewhere that you can have child-custody payments increased without having to use a lawyer. Is that true? Is it advisable?

Answer: You read correctly. There is a relatively new child-support modification procedure--it became law in 1984--that is designed to be simple enough to work without a lawyer. In fact, lawyers are not allowed to appear on your behalf when you use this procedure. You can read the exact legal language in Section 4700.1 of the California Civil Code.

The procedure, which allows increases or decreases in child support up to 10% a year, can be used only once a year. However, if one parent has a “significant decrease” in income, the parent can use this procedure to alter custody payments in excess of the 10% limit.

Lawyers Joseph Matthews, Warren Siegel and Mary Willis have a useful discussion of this procedure in their book, “How to Modify and Collect Child Support in California” (Nolo Press: $17.95).

“Although this new procedure initially appeared very promising for those wishing to accomplish child-support modification without lawyers,” they observe, “it is less so since passage of the Agnos Minimum Child Support Standards Act.

“If your existing child support order was entered before July 1, 1985 (the effective date of the Agnos Act), you will probably be better off” not using this simplified procedure, the authors say.

They also warn that the information sheet published by the California Judicial Council, which is supposed to explain how to use the “simplified” method, is “not quite as simple as it could be.” Their book tries to explain the procedure in even simpler terms, as well as advising divorced parents about the--more complex--regular procedures for modifying child support or spousal support.

Q: Our back fence (on the property line with our neighbor’s property) is covered by a vine that grows over and hangs above our neighbor’s yard. Do I have any legal responsibility for keeping that trimmed? --N.C.

A: Laws covering nuisances and encroachments apply to the very common neighborly problem of overhanging tree branches or bothersome roots. A nuisance is legally defined as, among other things, “an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.”

If the roots of a tree from your property grow underneath the fence and push up and crack the concrete of a neighbor’s patio, it’s pretty clear that the neighbor can sue and collect for the cost of the damage to the property. The neighbor can also sue for an injunction to force you to stop the encroachment.

Most neighbors can work out their problems, so there are very few published legal decisions in this area, but several older cases do suggest that a landowner who is injured by a neighbor’s branches (and injured doesn’t necessarily mean physical injuries) has the right to trim back the branches, but only to the boundary line. The neighbor cannot cut down the tree entirely, nor enter your land to do the cutting.

You have a responsibility for not creating a legal nuisance or encroaching on your neighbor’s property. But you should try to work out a compromise with your neighbor, perhaps by sharing the cost of the trimming or some other equitable solution. Fighting with your neighbor in court should be a last resort.