Child Support

What is Child Support?

In many countries, child support is the ongoing obligation for a periodic payment made by a non-custodial parent to a custodial parent, caregiver or guardian, for the care and support of children of a relationship or marriage that has broken down. In family law, child support is often arranged as part of a divorce, marital separation, dissolution, annulment or dissolution of a civil union and may supplement alimony (spousal support) arrangements.

Legal theory

In most jurisdictions there is no need for the parents to be married, and only paternity and/or maternity (filiation) need to be demonstrated for a child support obligation to be found by a competent court. Child support may also operate through the principle of estoppel (1.) where a de facto parent (2.) that is in loco parentis for a sufficient time to establish a permanent parental relationship with the child or children.

Child support is based on the policy that parents are obliged to pay for the support of their children, even when the children are not living with both biological parents. Though courts typically permit visitation rights to non-custodial parents, in such separations one parent is given custody and the role of primary caregiver. In such cases, the other parent still remains obligated to pay a proportion of the costs involved in raising the child. These costs are often still considered an obligation, even when the other parent has been legally limited or prevented from participating in or making decisions involving the upbringing of the child or children. It is also important to note the custodial parent still must pay a percentage of the costs incurred raising a child, even if a non-custodial parent has been ordered to make child support payments. In Massachusetts, for example,it's the responsibility of the custodial parent alone to pay the first $100 in all uninsured medical costs for each child, per year. Only then will the courts consider authorizing child-support money from a non-custodial parent to be used for said costs.

1. Estoppel is a legal doctrine proposing that any person who asks the courts to enforce a legal remedy should have a clear conscience.

2. A de facto standard, for instance, is a technical or other standard that is so dominant that everybody seems to follow it like an authorized standard.

3. The term in loco parentis, Latin for "in the place of a parent", refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. For example, state law gives school teachers some areas of responsibility in which they act in loco parentis.

Child Support and different jurisdictions.

In some jurisdictions the privilege of visitation (or access) is tied to child support. If the custodial parent refuses to allow the non-custodial parent visitation with the child, the non-custodial parent can petition the court to temporarily stop support payments. However, some jurisdictions view this as punishing the child, not the parent, and in such cases the court may order additional visitation to the non-custodial parent. Visitation, is a limited form of custody.

Child support laws vary around the world. Some jurisdictions sort the arrangements out directly between the parents. Others involve the state collecting child support payments as though it were a tax. In the United States some non-custodial parents claim there is no accountablity on the part of the custodial parent regarding how child support payments are spent and accuse the custodial parent of spending support money on non-child expenses. Depending on the jurisdiction, a custodial parent might legally be required to account for how child support money is spent. In the United States, 11 states (Colorado, Delaware, Florida, Indiana, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, Oregon, and Washington) allow courts to demand an accounting from custodial parent on how child support dollars are spent. Additionally, Alabama courts have authorized such accounting under certain specific circumstances. Despite this, some non-custodial parents in such situations still view their only recourse lies in petitioning the court for a change of custody.

Child Support and dead-beats.

Non-custodial parents who avoid their child support obligations are often termed dead-beat parents. The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999). Some non-custodial parents claim their payments are too high. According to one study 38% of Illinois non-custodial parents not paying child-support said they lacked the money to pay. Twenty-three percent used non-payment to protest a lack of visitation rights. Fourteen percent complained of no accountability over the spending of their child support money, while 13% said they didn't want their child(ren) and 12% denied parentage. Additionally, some non-custodial parents who have been subject to acrimonious divorces often see these payments as unfair and excessive. Some custodial parents who have been victimized in abusive relationships view the avoidance of child support payments as another means of their spouses perpetuating the abuse.

In the United States, many states suspend an individual's licenses (i.e. driver's license, business license, contractor license) if that individual has significant arrearage in support payments or does not consistently pay support. This authority does not extend to professionals who receive licensure through non-governmental agencies. In 2000, the state of Tennessee revoked the driver’s licenses of 1,372 people who collectively owed more than $13 million in child support. In Texas non-custodial parents behind more than three months in child-support payments can have court-ordered payments deducted from their wages, can have federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources intercepted by child support enforcement agencies, can have licenses (including hunting and fishing licenses) suspended, and a judge may sentence a nonpaying parent to jail and enter a judgment for past due child support. Some have taken the view that such penalties are unconstitutional, even alleging that "The People employed in the family courts and family court services are criminals" However, on September 4, 1998, the Supreme Court of Alaska upheld a law allowing state agencies to revoke driver's licenses of parents seriously delinquent in child support obligations. And in the case of United States of America v. Sage, U.S. Court of Appeals (2nd Cir., 1996), the court upheld the constitutionality of a law allowing federal fines and up to two years imprisonment for a person willfully failing to pay more than $5,000 in child support over a year or more when said child resides in a different state from that of the non-custodial parent. Child Support Recovery Act of 1992

U.S. court order issued by family division of county court garnishing typically the father's income

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U.S. court order issued by family division of county court garnishing typically the father's income

The U.S. law commonly known as the Bradley Amendment was passed in 1986 to automatically trigger a non expiring lien whenever child support becomes past-due.

* The law overrides any state's statute of limitations.

* The law disallows any judicial discretion, even from bankruptcy judges.

* The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification.

But, like any other past-due debt, the obligee, typically a mother, may forgive what is owed to her.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an offer in compromise.

Child Support and Welfare.

Since enactment in 1996 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), a major impetus to collection of child support in the United States is the Welfare law. A custodial parent receiving public assistance (Temporary Aid to Needy Families or TANF) is required to assign his or her right to child support to the Department of Welfare before cash assistance is received. Another requirement is that the custodial parent must pursue child support from the non-custodial parent . Where successful, the child support is then diverted to the welfare program instead of the custodial parent as partial reimbursement of the cash assistance being paid. If the amount of child support paid equals or exceeds the assistance grant, the family is moved off the cash assistance portion of the program (they may still be eligible for food stamps and medical assistance). Other provisions of PRWORA require the custodial parent to find employment and will assist that parent in finding and maintaining such employment (such as buying new work clothes or repairing a vehicle to get them to work). If the custodial parent becomes employed, their cash assistance will be reduced based on the amount of income received. If child support is also being paid, the chances are that it will then be greater than the assistance grant and the family will move off the welfare rolls (at least as far as cash assistance is concerned) . The child support enforcement programs in all 50 states are primarily funded by the federal government through each state’s Department of Welfare. Should a state's handling of child-support enforcement not comply with PRWORA standards, that state's program funding can be reduced by 5% as a penalty.

Despite the claims of some that PRWORA and it's welfare connection are generating government income through child support collections, the US Department of Health and Human Services reports that in fiscal year 2003, 90% of child support collections went directly to families. In fact, the percent of payments going to families was 86% or more in 47 states and in seven states exceeded 95%. Only the remaining 5-14% reimburses taxpayers for the cost of welfare expenses. Nevertheless, half of current unpaid child support debt is owed to the government and not to families. Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement stated, "We need to be more aggressive about leveraging older debt owed to the government as an incentive to obtain more reliable payments of current support to families." Towards this end, the United States federal government, through the Social Security Administration, provides up to $4.1 billion in financial incentives to states that create support and arrearage orders, and then collect (cf. 6B, 6C, & 6D).

Child Support and Court services.

Some claim that requiring non-custodial parents to pay child-support creates jobs to sustain the divorce industry. They point out that family court judges earn $90,000 to $160,000 per year (cf. p. 1 table) and each judge requires a staff. One association claims the industry consists of "60,000 professionals includes line/managerial/executive child support staff; state and local agencies; judges; court masters; hearing officers; government and private attorneys; social workers; advocates; corporations that partner with government to provide child support services and private collection agencies." An industry of 60,000 professionals would comprise less than one-twentieth of a percent of the United State's 147.3 million-person workforce.

In the United States, state courts typically maintain a child support division - essentially an accounting department recording amounts owed and paid. Some maintain that because the county clerks responsible for record keeping are not certified accountants, inaccuracies concerning child support payments are common. Some people also claim that outside auditors do not monitor the accuracy of child support reports. In many counties, like Illinois’ Cook and Kane counties, the division audits themselves. However other jurisidictions adopt different methods - for example, in 2003 independent auditors reviewed and audited the Child Support Enforcement Agency of Hawaii. The state of Texas has also conducted such an independent audit. The Clark County, Nevada district attorney's office has also been independently audited (in 2003) regarding child support payment collections. And also in 2003, the state of Maryland recommended conducted outside audits on it's five metro child support enforcement operations.

While the county's reports are the official record keeper, the state also have their support reports, cancelled checks with relevant support orders is all the evidence needed to prove your claim.

How much Child Support to pay?

HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?

Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

WHAT OTHER ITEMS DO FORMULAS CONSIDER?

Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the "custodial parent" (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the "non-custodial parent" (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

Special Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.

Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount. Depending upon the method that is used in a given state, seeking a lawyer's professional advice can be well worth the cost.

HOW DO CHILD CARE COSTS GET FACTORED IN?

The cost of child care can likewise be apportioned between the parents. Because child care costs are incurred so that a parent is able to earn income, it means that a greater amount of combined income is available for the support of the child. Since both parents benefit from the cost of child care, this cost is divided between the parents (usually 50% each). The parent who actually pays the child care expense receives payment from the other parent.

HOW LONG MUST CHILD SUPPORT BE PAID?

The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child's minority, generally through the child's high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.

WHAT INCOME ITEMS DO TYPICAL FORMULAS COVER?

The formula is based on the respective net incomes of the parents. Federal and state income taxes,Social Security and Medicare tax,health insurance,union dues and other mandatory expenses are subtracted from a parent's gross income (that is, income from all sources including, but not limited to, wages and investments) to arrive at his/her net income.

HOW DO YOU SHOW INCOME?

The court can require documentary evidence, such as pay statements, profit/loss statements of sole proprietorships, and tax returns, to be produced and certified as true under penalty of perjury. The intent is that all income received by a parent will be considered when his/her net income is being calculated.

If you suspect that a party is hiding income -- such as by not reporting "cash" or "off the books" income -- it may be difficult to prove, but an experienced lawyer or professional investigator usually is able to help you figure out how to do so.

WHAT ARE THE TAX CONSEQUENCES OF CHILD SUPPORT?

For federal income tax purposes, child support payments you receive are not income ? they are tax free to you. The parent who makes the payments cannot deduct the amount as an expense on his or her federal tax return. However, sometimes parents are able to negotiate higher alimony (which is deductible by the parent making payments and taxable income to the receiving parent) to generate tax savings.

MY INCOME DROPPED DRAMATICALLY WHEN I WAS LAID OFF MY JOB AND CANNOT MAKE MY CHILD SUPPORT PAYMENTS. IS THERE ANY WAY I CAN LOWER THE PAYMENTS?

Unexpected, significant decreases in income can be a reason to request modification of your child support order. Before incurring the additional expense of a court-mandated change, one route is to ask the other party to agree to a temporary reduction or deferral (if need be). If successful, put the terms in writing, sign, and date the document, preferably with the advice of a lawyer.

If that does not work, ask the court to modify the amount of the child support owed in the future, explaining your major and unavoidable drop in your financial situation, that the income is not likely to be replaced soon, and why the change would be fair. Most courts are sympathetic and receptive to making necessary changes in child support when you have experienced a financial setback. Again, paying a lawyer to help can pay for itself dozens of times over.

How to collect Child Support?

WHAT EFFORTS CAN BE TAKEN TO COLLECT CHILD SUPPORT FROM THE PARENT WHO DOES NOT PAY?

When a parent fails to provide support for a child, the parents need to work together to make arrangements for mutual sharing of the expense of raising the child. For all parties concerned, the best solution is often found when parents work together.

In the situation where one parent does not cooperate in sharing the responsibility for child support, the controversy should be submitted to a court. The first step is to obtain an order for the payment of child support. Further action in the court for the purpose of collecting child support can be taken if the obligor parent fails to comply with the court order for payment of child support. Like other enforcement of judgment actions, the available remedies range from simple to complex proceedings.

Wage assignments: The most common "tool" used to collect child support payments that are not voluntarily made is through a wage assignment order. A wage assignment order is an order of the court directing the employer to deduct the child support payment from the earnings of an employee-obligor parent and then make this payment directly to the obligee parent. Violation of a wage assignment order could result in the employer becoming responsible for such payment to the obligee parent. assignment orders can be obtained through a relatively simple court procedure. Once obtained, the wage assignment order must be served upon the employer of the obligor parent before it becomes effective.

Enforcement action: When the obligor parent continually fails to make support payments, the total amount of the "arrearage" (payments due and owing but not yet paid) can be set as a judgment for further enforcement proceedings. Interest on the arrearage is often included as part of the judgment, since many states provide for interest to accrue on outstanding orders for support. The expense of an enforcement action to collect a judgment is justified as the amount due increases. When the obligor parent has income or property, there is financial incentive to pursue enforcement efforts and, with the assistance of professionals, well worth the effort and expense.

Attachment or levy: Child support can also be collected through other procedures. For example, if the obligor has money in a bank, a valuable automobile, an investment in a mutual fund, or an interest in a property in the possession of a third-party, an attachment or levy can be executed. When executing a levy or attachment, care must be taken since some property is exempt. In a levy or attachment proceeding, the court can have the property of the obligor parent "seized" or taken away and given to the obligee parent. Although an obligor parent may challenge the levy or attachment in court ("claim an exemption"), it can be very effective in obtaining payment of a child support judgment. Strict adherence to the established rules for levy and attachment is required to protect an obligee parent from an allegation theft of property.

WHAT IS THE PARENT LOCATOR SERVICE?

The Federal Parent Locator Service (FPLS) obtains and transmits information about the location of any absent parent when that information is to be used for the purpose of enforcing child support. The service is an arm of the Department of Health, Education, and Welfare. The FPLS also can be used in connection with the enforcement or determination of child custody, visitation, and parental kidnapping. There are also state parent locator services in some states.

Recent federal legislation (Personal Responsibility and Work Opportunity Reconciliation Act of 1996) also expanded the FPLS?s services to include a National Directory of New Hires and a Federal Case Registry of Support Orders. FPLS will match data between the New Hire and Case Registry every two days and report matches to states within two days.

WHAT OTHER COLLECTION REMEDIES ARE AVAILABLE?

The following are other alternative courses of action:

Government: Many states have empowered local government agencies (such as the Office of District Attorney) to collect child support for an obligee parent. Under law, the local agency may (or must) take action to collect outstanding child support arrearage. Resources, such as parent locator services, and a staff of attorneys/clerks, are available to local agencies to assist in collecting court ordered child support.

Tax refund intercepts: Local agencies have the authority to follow a procedure to "intercept" federal or state tax refunds which otherwise would be paid to the obligor parent. Also, local agencies can provide information about child support arrearage to consumer credit reporting agencies who are then required include such information in the agency's report. Although local child support enforcement agencies can be slow, because of the additional resources available to them, their assistance should be requested as part of the overall effort to collect a child support arrearage.

Real estate liens: A "judgment lien" based on child support arrearage can be recorded against real estate owned by the obligor parent in the county in which the property is located. When such a lien is recorded, the real property becomes security for the payment of the judgment. A judgment lien for child support is then paid from the proceeds of the sale when the property is sold. A judgment lien against real property should be established whenever an obligor parent owns real property that has an equity value (that is, the amount of all outstanding liens, including mortgages, is less than the fair market value of the property).

Civil contempt of court: A more complex proceeding is an action for contempt. Since payment of child support is a direct order by a court to pay, failure to pay is treated as a contempt of a court order. In this proceeding, which is quasi-criminal in nature, the obligee parent must prove to the court that the obligor parent had the income from which support could have been paid. Although a contempt proceeding is complex, it certain to gain the attention of the obligor parent.

Since collection of child support can be difficult, professional assistance is often needed. Child support judgments can easily reach many thousands of dollars a year, and the cost of professional assistance is justified, since those who are familiar with collection procedures often obtain favorable results.

IF THE OBLIGOR PARENT DOESN'T PAY, CAN VISITATION BE STOPPED?

No. The child support obligation and the right to child visitation are two different issues.

Failure to pay child support is insufficient grounds to stop the right of the obligor parent to visit with his/her child. Visitation is ordered by a court in the best interest of the child, to promote love and affection with both parents, custodial and non-custodial. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be established.

On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for these needs; thus is treated as a separate issue, and does not have a determinative effect upon visitation. The obligee parent must continue to allow visitation with the child despite failure of the obligor parent to pay child support. Although this may be very hard for the obligee parent to understand, if the obligee parent "frustrates" the right of the obligor parent to visit with the child, the obligor parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.

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