1. Child Support
Chapter 8

2. On-going Parental Obligation
Both parents expected to provide economic support to their children
Many states had guidelines, but left the determination up to the courts on a case-by-case basis
Discretionary guidelines proved to be too low, or evenly applied by courts

3. Family Support Act of 1988 Statutes were enacted to standardize awards
These became rebuttable presumptions, requiring special circumstances for a judicial over-ride
Deviation criteria identify appropriate circumstances

4. Parent’s Obligation Each parent has a set obligation
Worksheets help determine the share
“Shared-” or “combined-income” models
Set up by formula applied to the total available income
Statutory charts are established in some states
Fathers & mothers pay support in a ratio to the total amount of support determined by formula or chart:
F’s income/total income = F’s support/total support
M’s income/total income = M’s support/total support

5. New Family
Remarriage can factor into the amount of income available for support:
“to the extent that such income [the new spouse’s] is used directly to reduce the costs of a party’s actual expenses.”
Rosenbloom v. Bauchet, 654 So.2d 877 (La. App. 1995)

6. Establishing Support By an agreement
Will still be reviewed in light of state standards
Any deviation must be justified on the record
By court order, based on statutory guidelines
Continues through the age of majority, emancipation, or through the completion of High School in the case of some 18 year olds
May continue past these points if the adult off-spring requires a continuing guardianship

7. Calculating Support Sources of income determined by statute
Support determined by formula or according to the charts
Electronic worksheets available in many jurisdictions
Inputting income results in an automatic calculation of support

8. Deviations
Child has extraordinary needs due to mental or physical problems
Existing support court orders for one party
Earning capacity
Imputed income possible
Under- or unemployed voluntarily
Local economic conditions considered
Variable income (commissions, contingent fees) & under-the-table income can be scrutinized if life style deviates dramatically from reported income

9. Deviation, cont. Extraordinary expenses incurred for visitation
Shared or joint custody, resulting in significant amounts of time in each parents’ custody
Income exceeds the statutory guidelines

10. Modification Substantial change in circumstances warrants modification
Needs of the child
Loss or increase in income
May be set by statutes, e.g., 10% variance or periodic review (3 years)
Consent modifications reducing support must be reflected in court orders to avoid later claims of arrearages

11. Enforcement Support is ordered by judgment:
Private enforcement (hiring investigators, attorney)
Administrative assistance – Child Support Enforcement Agency (CSEA)
Available to non-publicly-supported parents for a fee
Designed to prevent the need for public assistance
Overburdened

12. Public Assistance Conditions may include:
Identifying putative fathers
Locating non-custodial parents
Assigning collection rights to the state
Once located, payments of support and arrearages may be divided between the recipient parent and the state (pay back for prior support)

13. Administrative Enforcement
Bureaus or Agencies for Support Enforcement (IV-D agencies)
Pursuant to Child Support Enforcement & Establishment of Paternity Act
Parent locator services
I.R.S.
Social Security
Motor vehicle registration
Support Enforcement Tracking System (SETS) links state records

14. Administrative Enforcement
Other services
Establishing paternity through DNA testing
Facilitating entry of orders in the payor parent’s jurisdiction
Enforcement of existing orders

15. Means of Enforcement Wage garnishment Negative credit report
Tax refund interception
Denial of U.S. passport
Obtaining a judgment & attaching property
Bank accounts, real property, cars, etc.
Requiring a cash bond
Denial or revocation of a professional or occupational license

16. Civil Contempt Can file a petition for civil contempt
Must establish the court ordered support and allege the failure to comply
A CSEA’s records may make this easier
Non-appearance may result in a capias being issued
Payor in arrearage can be sent directly to jail
Payment can “buy” release & probation
Often triggers a request (or motion) to modify the support level based on changed circumstances (can be heard concurrently in many jurisdictions)

17. Criminal Prosecution Violation of state criminal non-support statutes
Hearing can result in incarceration, or
Probation, as long as the support is brought current & there is no further arrearage

18. Interstate Enforcement
Full faith & credit makes “forum shopping” for lower rates less possible
Final orders entered in an initial action will be honored by subsequent states
A variety of Uniform laws have been passed to try to prevent children from being deprived of necessary support

19. Uniform Reciprocal Enforcement of Support (URESA)
Criminal enforcement
Extradition of non-paying parent to recipient’s state (the state where judgment was originally entered)
Criminal non-support statutes are applied
Civil enforcement
Action brought in custodial parent’s state
Determination of whether other parent has a duty to pay
If so, a judgment is entered
Forwarded to non-custodial parent’s state
A hearing can be conducted
Enforcement against the non-custodial parent in his/her state

20. Revision of URESA
Custodial parent’s state now forwards all evidence needed to support the reciprocal judgment
Recipient parent can bring an action directly in payor parent’s state

21. Uniform Interstate Family Support Act (UIFSA)
Continuing exclusive jurisdiction in the original state
Only the original state may modify it’s own order, unless both parties:
Agree
Have moved to the same, new state, which will now assume jurisdiction

22. UIFSA Custodial parent files a petition in his/her home state
That state court petitions the non-custodial parent’s home state
There will be a hearing to enforce the original order
System is currently overwhelmed by volume of claims, creating serious support arrearages

23. Visitation
Generally, the courts feel that children have two distinct rights:
The right to have both parents in their lives
The right to adequate financial support
If the custodial parent deprives the child of visitation by the other parent (blocks visitation), it is still in the child’s best interest to provide the child with adequate support.
The remedy is judicial, not “self-help”

24. Visitation, cont.
Conversely, if the non-custodial parent deprives the child of support, it is still in the child’s best interest to permit visitation.
Again, the remedy should be judicial, not self-help

25. Remarriage of parents Custodial parent remarriage:
Although the step-parent has no obligation to support a child he or she hasn’t adopted, there may be enough change in circumstances to warrant modification:
Household expenses are shared
Contributions to family finances are considered
If a stepparent (or other non-related adult) voluntarily assumes the responsibility of support, the doctrine of equitable estoppel may convert that voluntary assumption of support into a legal obligation

26. Modification of Support
Frequently accompanies a response to a civil contempt charge
Generally income-, not expense-driven
Although income of a subsequent spouse is generally not considered in a parent’s support obligation, courts tend to interpret “…gross income broadly so as to include items that increase the amount of income available for support purposes….”
Unklebach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998)

27. Equitable or Promissory Estoppel
Based upon reliance and the best interest of the child
“The elements of equitable or promissory estoppel are: (1) a promise; (2) that the promisor should reasonable have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced it injustice is to be avoided….”
Nygard v. Nygard, 156 Mich. App. 94, 401 N.W.2d 323 (1986)

28. Men’s Rights to Reproductive Choice
Can Roe v. Wade be extended to men’s “right to choose”?
Is this an violation of equal rights provisions?
The federal court said, no, called the claim frivolous, dismissed the claim and awarded attorney’s fees for the need to defend against an unwarranted action

29. Additional Support Orders
May include other provisions besides direct monetary support:
Tuition
Medical coverage
Postmajority support
Finishing high school
Special health needs

30. College Clauses A few states require some sort of provision
In the child’s best interest
According to the parents’ ability to pay
“Expectation” analysis
What would the child have expected in an intact family?
Family history
Parents’ actions (savings, etc.)
Aptitude of the child

31. College Provisions May be:
Tied into the tuition of a state institution
May specify a particular number of years, degree
Should identify covered expenses
Will it be pro rated between the parents, based upon their ability to pay?
Is the child still expected to seek scholarships, grants, loans?