10 Child Support

What Is Child Support? Child support refers to a parent's obligation to contribute to the economic maintenance of his or her child (including adopted children). Child support issues arise in many contexts including divorce, separate support, paternity, and abuse and neglect actions.

What Is Child Support? Child support may be temporary (while an underlying action is pending) or "permanent" though it remains subject to the continuing jurisdiction of the court.

Who Has to Pay Child Support and Whom? Child support is most commonly paid by a noncustodial parent (the obligor) to a custodial parent (the obligee). Sometimes a parent may be ordered to pay child support to an agency such as a residential treatment or juvenile correctional program.

Who Has to Pay Child Support and Whom? Persons ordered to pay child support can include parents as well as third parties who act in loco parentis (in the place of a parent).

Who Has to Pay Child Support and Whom? The majority rule is that absent an agreement or a court order, a step-parent will not have a duty to support a step-child. A man who has acknowledged paternity may be ordered to pay child support even if DNA evidence proves him not the father.

When Does the Child Support Duty End? There are significant jurisdictional variations. The duty typically continues until the child's emancipation. Emancipation refers to the age (18 in most states), act or occasion that frees a child from the control of a parent.

When Does the Child Support Duty End? In some states, a parent may remain liable for support of a disabled child beyond the age of 18 or while the child pursues a certain type and amount of higher education.

Differences Between Child Support and Alimony Is a right of the child Cannot be waived by agreement between the parties Is calculated using federally mandated guidelines developed by the states Remains under the continuing jurisdiction of the court

Differences Between Child Support and Alimony Can be modified based on a substantial change in circumstances or on a periodic review Does not terminate as a result of a parent's remarriage

Differences Between Child Support and Alimony Is neither deductible to the payor nor includable in the income of the recipient Is not discharged in bankruptcy and is given priority in payment

Differences Between Child Support and Alimony Is a spousal duty based on one party's need and the other party's ability to pay Can be waived in a valid agreement between the parties in most states Is not calculated according to guidelines governing amount or duration in most states

Differences Between Child Support and Alimony May be modified based on a material change in circumstances unless contrary to a statute, decree, or surviving agreement of the parties Will not be terminated by remarriage of the recipient in most states

Differences Between Child Support and Alimony Is usually tax deductible to the payor and income to the recipient Is usually not dischargeable in bankruptcy

Initiatives the Federal Government Has Undertaken in the Area of Child Support The primary initiatives taken by the federal government are designed to: Contain the costs of public assistance programs Address inadequacies and inconsistencies in child support awards across the states Streamline and strengthen enforcement especially when multiple states are involved

Initiatives the Federal Government Has Undertaken in the Area of Child Support It established the Office of Child Support Enforcement (OCSE). It required the states to develop numeric, formula-based child support guidelines to be used in establishing child support awards.

Initiatives the Federal Government Has Undertaken in the Area of Child Support It required the states to have a procedure for establishing paternity any time before a child reaches age 18.

Initiatives the Federal Government Has Undertaken in the Area of Child Support It strengthened enforcement efforts. It mandated creation of federal and state Case Registries and Directories of New Hires. It mandated creation and adoption of the Uniform Interstate Family Support Act (UIFSA). It created the Transitional Assistance to Needy Families Program (TANF).

Initiatives the Federal Government Has Undertaken in the Area of Child Support It required the states to seek medical support for children as part of any child support order. It required each state to develop a comprehensive child support program run by a single state agency to be designated its IV-D agency.

What Kind of Jurisdiction Must a Court Have in a Child Support Case? Subject matter jurisdiction over child support cases Usually rests in family courts but may also be in juvenile courts, district/county courts, and other courts that deal with matters pertaining to children and their parents

What Kind of Jurisdiction Must a Court Have in a Child Support Case? Personal jurisdiction over the defendant Each state has its own statutes governing the ways in which personal jurisdiction over a defendant may be obtained (personal service, service by publication, etc.).

Obtaining personal jurisdiction over a resident defendant What Are Some of the Most Common Jurisdictional Issues That Arise in Child Support Cases? Obtaining personal jurisdiction over a resident defendant Usually by personal service but sometimes the defendant's whereabouts are unknown

What Are Some of the Most Common Jurisdictional Issues That Arise in Child Support Cases? Obtaining personal jurisdiction over a nonresident defendant in the petitioner's own state Usually under UIFSA's or a state's long-arm statute

What Are Some of the Most Common Jurisdictional Issues That Arise in Child Support Cases? Obtaining personal jurisdiction over a nonresident defendant in his or her own state Usually by using the services of the state's IV-D agency with the agency acting on behalf of the petitioner with or without the assistance of private counsel

Primary Responsibilities of a State's IV-D Agency IV-D agencies Assist in establishing paternity through testing of putative fathers Assist with location of noncustodial parents through state and federal parent locator services Facilitate entry of support orders after paternity is established

Primary Responsibilities of a State's IV-D Agency IV-D agencies Periodically review child support awards Enforce existing awards The services of IV-D agencies are available to parties receiving public assistance and those who are not.

Where Does Continuing Jurisdiction Lie Once an Initial Award Has Entered? Under UIFSA, there should only be one valid child support order enforceable in all states.

Where Does Continuing Jurisdiction Lie Once an Initial Award Has Entered? Once a court issues a valid child support order, that court will have continuing exclusive jurisdiction for purposes of modification as long as either parent or the child continues to reside in that state or the parties file written consents that another state assume jurisdiction.

Where Does Continuing Jurisdiction Lie Once an Initial Award Has Entered? If neither parent nor the child continues to reside in the issuing state, that court will lose continuing jurisdiction and a court in another state can acquire it. If an order is sought in multiple states, under UIFSA preference will be given to the child's home state.

Child Support Guidelines Application of guidelines will produce a rebuttable presumption of the appropriate amount of support to be ordered. The guidelines must consider all earnings and income of the noncustodial parent.

Child Support Guidelines They apply to all child support orders whether at establishment or modification. Guidelines incorporate various descriptive and numeric criteria and formats vary from state to state.

Child Support Guidelines They must provide for children's health care needs. Any order that deviates from guidelines must include written findings of what the order would have been under the guidelines and why deviation is warranted. They must be reviewed every four years and revised if necessary.

What Income Are the Guidelines Based On? The guidelines must consider all earnings and income of the noncustodial parent (in many states, the income of both parents is considered).

What Income Are the Guidelines Based On? Income is usually defined as "income from all sources" but what will be included varies according to federal law, state law, administrative law, and case law.

What Income Are the Guidelines Based On? Typically income will include: Support received from another person Cash and gifts from family members, lump-sum severance pay, annual bonuses, lump-sum personal injury settlements, gambling winnings, SSDI benefits, reimbursements received in the course of employment, and retirement benefits (with limitations)

What Income Are the Guidelines Based On? Typically not included in income Means-tested benefits such as PELL grants, TANF benefits, food stamps, and Supplemental Social Security Income (SSI).

Can Income be Imputed to a Party? Imputed income is income attributed to a party based on his or her earning capacity rather than on actual earnings. Most states will impute income to a party (either the obligor or the obligee) if appropriate and some states have a formula for doing so.

Can Income be Imputed to a Party? Examples of when income might be imputed: Voluntary early retirement, voluntary unemployment or underemployment, loss of gainful employment due to a party's own wrongdoing.

Can Income be Imputed to a Party? Most courts will not impute income if there is a good faith reason for unemployment such as a physical disability.

Extraordinary expenses In What Circumstances Might a Court Deviate from the Presumptive Guidelines Amount of Child Support? Extraordinary expenses These are expenses that are not reasonably predictable or consistent child to child such as medical expenses that are substantial in cost and/or duration.

In What Circumstances Might a Court Deviate from the Presumptive Guidelines Amount of Child Support? Multiple families The traditional rule is "first families first" meaning the obligor usually cannot request a downward modification based on having a new family but may use the cost of supporting a new family as a defense to a claim for an upward modification.

Cost and standard of living in a particular geographical area In What Circumstances Might a Court Deviate from the Presumptive Guidelines Amount of Child Support? Cost and standard of living in a particular geographical area Educational needs of the children Strong public policy in favor of providing support to students

In What Circumstances Might a Court Deviate from the Presumptive Guidelines Amount of Child Support? There are some additional variables that may be factored into the guidelines or be treated as reasons for a deviation such as: Custodial and visitation arrangements; number and ages of the children; financial misconduct of either party; existence of an agreement; and needs, liabilities, and resources of the parents

Parent's Financial Responsibility for the Educational Needs of His or Her Children Several states provide that if a child continues high school past age 18, child support will continue until he or she finishes high school or turns 19. There is a range in approaches to higher education but the current trend is absent an agreement, parents will not be required to pay for such expenses.

Parent's Financial Responsibility for the Educational Needs of His or Her Children Deviations in the child support amount may be made if the child participates in special needs or gifted programs, necessary tutoring, etc.

Modifying a Child Support Award Based on a self-executing provision in an agreement of the parties incorporated in a court's decree (should be tied to the parties' actual financial circumstances)

Modifying a Child Support Award Based on proof of a substantial change in circumstances (usually the change must have been unforeseeable) The burden of proof is on the petitioner and may be satisfied by a showing that there is a specific level of difference between the award and the current guidelines amount (such as 15% in some states).

Modifying a Child Support Award Based on proof of a substantial change in circumstances (usually the change must have been unforeseeable) See Paralegal Application 10.4 on pages 383 and 384 re: incarceration as a change

Modifying a Child Support Award Based on a periodic review and adjustment of orders by the state's IV-D agency

Modifying a Child Support Award The modification action can be brought by a party or by the state's IV-D agency. The petition is not always granted but may be if the court is persuaded the prior award is inequitable and the change is in the best interests of the child.

Enforcing Child Support Awards Based on a self-executing provision in an agreement of the parties Once an award is made it can be enforced in any state where the obligor or his or her assets are located.

Enforcing Child Support Awards If the obligor is a nonresident, the obligee can travel to the defendant's state to seek enforcement or he or she can use the IV-D agency in his or her state (the initiating state) to "register" the order in the defendant's state (the responding state) for enforcement.

Enforcement Methods Contempt actions (civil or criminal) Income withholding (the most effective) Criminal prosecution under federal or state law Seizure of assets Tax refund intercepts

Enforcement Methods Unemployment compensation intercepts License denials or revocations Passport denials or revocations Credit reporting

Tax Implications of Child Support Child support is a tax-neutral event, neither deductible to the payor nor includable in the recipient's income.

Tax Implications of Child Support The general rule is that the custodial parent is entitled to claim the child as a dependent for tax purposes resulting in an adjustment to that party's gross income. The parties may agree to an alternative arrangement.

Tax Implications of Child Support The parent claiming the exemption is also entitled to the child tax credit resulting in a credit against his or her tax liability rather than an adjustment to gross income.

The Paralegal's Role in Child Support Cases They complete child support guidelines worksheets for review. They research governing law including any pertinent jurisdictional issues. They gather information and documents pertaining to financial resources, income, children's needs, standards of living, parenting plans, expectations and motivations, etc.

The Paralegal's Role in Child Support Cases They draft child support provisions for inclusion in separation agreements. See Paralegal Application 10.7 on pages 393 and 394 of the text: Drafting Pointers for a Child Support Provision in a Separation Agreement or Parenting Plan.

The Paralegal's Role in Child Support Cases They draft complaints/petitions, affidavits, responsive pleadings, proposed orders, materials in preparation for trial, etc. They draft discovery requests.

The Paralegal's Role in Child Support Cases Assist with preparation for temporary hearings or trials on the merits Tracking the progress of the case to be certain timelines are met Draft Title IV-D correspondence and forms Making sure the client is kept informed of progress and upcoming deadlines, hearings, etc.