September 24, 2013

Child Support

In family law and government policy, child support or child maintenance is the ongoing obligation for a periodic payment made directly or indirectly by an (“obligor”) to an (“obligee”) for the financial care and support of children of a relationship or marriage that has been terminated, or in some cases never existed. Oftentimes, but not always, the obligor is a non-custodial parent. Oftentimes, but not always, the obligee is a custodial parent, caregiver or guardian, or the government. Depending on the jurisdiction, a custodial parent may pay child support to a non-custodial parent. Typically there is no gender requirement to child support, for example, a father may pay a mother or a mother may pay a father. Where there is joint custody, the child is considered to have two custodial parents and no non-custodial parents, thus a custodial parent (obligor) will be required to pay the other custodial parent (obligee). In family law, child support is often arranged as part of a divorce, marital separation, dissolution, annulment, determination of parentage or dissolution of a civil union and may supplement alimony (spousal support) arrangements.

The right to child support and the responsibilities of parents to provide such support have been internationally recognized. The 1992 United Nations Convention on the Rights of the Child, a binding convention signed by every member nation of the United Nations and formally ratified by all but two, declares that the upbringing and development of children and a standard of living adequate for the children’s development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents. Other United Nations documents and decisions related to child support enforcement include the 1956 United Nations Convention on the Recovery Abroad of Maintenance, which was ratified by the vast majority of UN member nations.

In addition, the right to child support, as well as specific implementation and enforcement measures, has been recognized by various other international entities, including the Council of Europe, the European Union and the Hague Conference.

Within individual countries, examples of legislation pertaining to, and establishing guidelines for, the implementation and collection of child maintenance include the 1975 Family Law Act (Australia), the Child Support Act (United Kingdom) and the Maintenance and Affiliation Act (Fiji) Child support in the United States, 45 C.F.R. 302.56 requires each state to establish and publish a Guideline that is presumptively (but rebuttably) correct, and Review the Guideline, at a minimum, every four (4) years. Child support laws and obligations are known to be recognized in a vast majority of world nations, including the majority of countries in Europe, North America and Australasia, as well as many in Africa, Asia and South America.
Contents

Legal theory

Child support is based on the policy that both parents are obligated to financially support their children, even when the children are not living with both parents. Child support refers to the financial support of children and not other forms of support, such as emotional support, physical care, or spiritual support.

When children live with both parents, courts rarely, if ever direct the parents how to provide financial support for their children. However, when the parents are not together, courts often order one parent to pay the other an amount set as financial support of the child. In such situations, one parent (the “obligee”) receives child support, and the other parent (the “obligor”) is ordered to pay child support. The amount of child support may be set on a case-by-case basis or by a formula estimating the amount thought that parents should pay to financially support their children.

Child support may be ordered to be paid by one parent to another when one is a non-custodial parent and the other is a custodial parent. Similarly, child support may also be ordered to be paid by one parent to another when both parents are custodial parents (joint or shared custody) and they share the child-raising responsibilities. In some cases, a parent with sole custody of his or her children may even be ordered to pay child support to the non-custodial parent to support the children while they are in the care of that parent.

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 where a de facto parent that is in loco parentis for a sufficient time to establish a permanent parental relationship with the child or children.

Child support vs. contact

While the issues of child support and visitation or contact may be decided in the same divorce or paternity settlement, in most jurisdictions the two rights and obligations are completely separate and individually enforceable. Custodial parents may not withhold contact to “punish” a noncustodial parent for failing to pay some or all child support required. Conversely, a noncustodial parent is required to pay child support even if they are partially or fully denied contact with the child.

Additionally, a non-custodial parent is responsible for child support payments even if they do not wish to have a relationship with the child. Courts have maintained that a child’s right to financial support from parents supersedes an adult’s wish not to assume a parenting role.

While child support and contact are separate issues, in some jurisdictions, the latter may influence the former. In the United Kingdom, for example, the amount of support ordered may be reduced based on the number of nights per week the child regularly spends at the non-custodial parent’s home.
Use of child support payments

All international and national child support regulations recognize that every parent has an obligation to support his or her child. Therefore, both parents are required to share the responsibility for their child(ren)’s expenses.

Support monies collected are expected to be used for the child’s expenses, including food, shelter, clothing and educational needs. They are not meant to function as “spending money” for the child.  Courts have held that it is acceptable for child support payments to be used to indirectly benefit the custodial parent. For example, child support monies may be used to heat the child’s residence, even if this means that other people also benefit from living in a heated home.

Child support orders may earmark funds for specific items for the child, such as school fees, day care or medical expenses. In some cases, obligors parents may pay for these items directly. For example, they may pay tuition fees directly to their child’s school, rather than remitting money for the tuition to the obligee. Orders may also require each parent to assume a percentage of expenses for various needs. For instance, in the U.S. state of Massachusetts, custodial parents are required to pay for the first $100 of annual uninsured medical costs incurred by each child. Only then will the courts consider authorizing child-support money from a non-custodial parent to be used for said costs.

Many American universities also consider non-custodial parents to be partially responsible for paying college costs, and will consider their income in their financial aid determinations. In certain states, non-custodial parents may be ordered by the court to assist with these expenses.

In the United States, obligors may receive a medical order that requires them to add their children to their health insurance plans. In some states both parents are responsible for providing medical insurance for the child/children. If both parents possess health coverage, the child may be added to the more beneficial plan, or use one to supplement the other. Children of active or retired members of the U.S. armed forces are also eligible for health coverage as military dependents, and may be enrolled in the DEERS program at no cost to the obligor.

Accountability regulations for child support money vary by country and state. In some jurisdictions, such as Australia child support recipients are trusted to use support payments in the best interest of the child, and thus are not required to provide details on specific purchases. In California, there is no limitations, accountability, or other restriction on how the obligee spends the child support received, it is merely presumed that the money is spent on the child. However, in other jurisdictions, a child support recipient might legally be required to give specific details on how child support money is spent at the request of the court or the non-custodial parent. In the United States, 10 states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon, and Washington) allow courts to demand an accounting on expenses and spending from custodial parents. Additionally, Alabama courts have authorized such accounting under certain specific circumstances.
Obtaining child support

Child support laws and regulations vary around the world. Legal intervention is not mandatory: some parents have informal or voluntary agreements or arrangements that do not involve the courts, where financial child support and/or other expenses are provided by non-custodial parents to assist in supporting their child(ren).

A major impetus to collection of child support in many places is recovery of welfare expenditure. A resident or custodial parent receiving public assistance, as in the United States, is required to assign his or her right to child support to the Department of Welfare before cash assistance is received. Another common requirement of welfare benefits in some jurisdictions is that a custodial parent must pursue child support from the non-custodial parent.
Court procedures for obtaining Child Support

In divorce cases, child support payments may be determined as part of the divorce settlement, along with other issues, such as alimony, custody and visitation. In other cases, there are several steps that must be undertaken to receive court-ordered child support. Some parents anticipating that they will receive child support may hire lawyers to oversee their child support cases for them; others may file their own applications in their local courthouses.

While procedures vary by jurisdiction, the process of filing a motion for court ordered child support typically has several basic steps.

1. One parent, or his or her attorney, must appear at the local magistrate or courthouse to file an application or complaint for the establishment of child support. The information required varies by jurisdiction, but generally collects identifying data about both parents and the child(ren) involved in the case, including their names, social security or tax identification numbers and dates of birth. Parents may also be required to furnish details relating to their marriage and divorce, if applicable, as well as documents certifying the identity and parentage of the child(ren). Local jurisdictions may charge fees for filing such applications, however, if the filing parent is receiving any sort of public assistance, these fees may be waived.

2. The other parent is located, and served a court summons by a local sheriff, police officer, or process server. The summons informs the other parent that they are being sued for child support. Once served, the other parent must attend a mandatory court hearing to determine if they are responsible for child support payments.
3. In cases where parentage of a child is denied, has not been established by marriage or is not listed on the birth certificate, or where paternity fraud is suspected, courts may order or require establishment of paternity. Paternity may be established voluntarily if the father signs an affidavit or may be proven through DNA testing in contested cases. Once the identity of the father is confirmed through DNA testing, the child’s birth certificate may be amended to include the father’s name.

4. After the responsibility for child support is established and questions of paternity have been answered to the court’s satisfaction, the court will obligor and order that parent to make timely child support payments and establish any other provisions, such as medical orders.

Calculating Child Support

Various approaches to calculating the amount of child support award payments exist. Many jurisdictions consider multiple sources of information when determining support, taking into account the income of the parents, the number and ages of children living in the home, basic living expenses and school fees. If the child has special needs, such as treatment for a serious illness or disability, these costs may also be taken into consideration.

Guidelines for support orders may be based on laws that require obligors to pay a flat percentage of their annual income toward their children’s expenses. Often two approaches are combined. In the United Kingdom, for instance, there are four basic rates of child support based on the obligors’ income, which are then modified and adjusted based on several factors.  In the United States, the federal government requires all states to have guideline calculations that can be verified and certified. These are usually computer programs based upon certain financial information including, earnings, visitation, taxes, insurance costs, and several other factors.

Once established, child support orders typically remain static unless otherwise reviewed. Obligors and obligees reserve the right to request a court review for modification (typically six months to one year or more after the issuance of the order or if the circumstances have changed such that the child support would change significantly). For instance, if the obligor has a change in income or faces financial hardship, they may petition the court for a reduction in support payments. Examples of financial hardship include supporting other children, unemployment, extraordinary health care expenses, etc. Likewise, if the obligor is spending more time with the child, they may petition the court for a reduction or even a reversal in support payments. Conversely, if the child’s expenses increase, the obligee may ask the court to increase payments to cover the new costs.

Although both parents have the right to petition the court for a support order adjustment, modifications are not automatic, and a judge may decide not to alter the amount of support after hearing the facts of the case. That is to say, simply because a obligors’s income has decreased, a court may find that the decrease in income is of no fault of the child, and will not decrease the child’s expenses, and therefore should not have an impact on him or her financially. Likewise, a court may find that an increase in the child’s expenses may have been calculated by the receiving parent and is not necessary, and therefore the support obligation of the paying parent should not increase.

Distribution and payment

Child support payments are distributed in a variety of ways. In cases where a obligor is liable for specific expenses such as school tuition, they may pay them directly instead of through the obligee.

In some jurisdictions, obligors (paying parents) are required to remit their payments to the governing federal or state child support enforcement agency. The payments are recorded, any portion required to reimburse the government is subtracted, and then the remainder is passed on to the obligee (receiving parent), either through direct deposit or checks.

The first payee for child support depends on the current welfare status of the payee. For example, if the obligee is currently receiving a monthly check from the government, all current support collected during said month is paid to the government to reimburse the monies paid to the obligee. Regarding families formerly on assistance, current support is paid to the family first, and only after said support is received, the government may then collect additional payments to reimburse itself for previously paid assistance to the obligee (receiving parent). See 42 USC 657: “(A) Current Support Payments: To the extent that the amount so collected does not exceed the amount required to be paid to the family for the month in which collected, the State shall distribute the amount so collected to the family.”.

Within the United States, a 2007 study conducted through the University of Baltimore estimates that 50% of all child support arrears are owed to the government to reimburse welfare expenses. Half of U.S. states pass along none of the child support they collect to low-income families receiving welfare and other assistance, instead reimbursing themselves and the federal government. Most of the rest only pass along $50.00 per month. The bipartisan 2006 Deficit Reduction Act and other measures have sought to reduce the amount of money claimed by the government and to ensure that more funds are accessible by children and families, noting that more obligors (paying parents) are willing to pay child support when their children directly benefit from payments.

Duration of support orders

The duration of support orders varies both by jurisdiction and by case. Requirements for support typically end when the child reaches the age of majority, which may range in age from 16 to 21 (New York State)  or graduates from high school. Some countries and states have provisions that allow support to continue past the age of majority if the child is enrolled as a full-time, degree-seeking post-secondary student. If the obligor owes back child support, they must continue to make payments until the debt is satisfied, regardless of the age of the child.

Several circumstances exist which allow for the termination of a support order for a child under the age of majority. These include the child’s marriage, legal emancipation or death.

Compliance and enforcement issues
“Dead-beat” parents

When referring to child support obligors who have developed arrears with respect to their child support obligations and refuse to pay, the colloquial term dead-beat parents has been coined. While “dead-beat” is a pejorative used by some in the media and some child support advocacy groups, it is not the legal term used to describe such parents. Governmental child support agencies typically describe clients as being in compliance, not in compliance or criminally non-compliant. Compliance is judged by the paying party’s performance in meeting the terms of the legal child support court order.

Enforcement

Regulations and laws on the enforcement of child support orders vary by country and state. In some jurisdictions, such as Australia, enforcement is overseen by a national office. In others, such as Canada, the responsibility to enforce child support orders rests with individual provinces, with financial and logistical assistance from the federal government. In the United States child support enforcement is also handled largely at the state level, but non compliant parents who meet certain criteria, such as traveling across state lines to circumvent orders or owing more than two years of support payments, may be subjected to federal prosecution under the Federal Deadbeat Punishment Act.

One focus of Article 27 of the Declaration on the Rights of the Child is the establishment and strengthening of international treaties to further aid in child support order enforcement across national and international boundaries. Under these agreements, orders established in one country are considered valid and enforceable in another country, and may be pursued through local court processes. The goal of such conventions is to ensure that noncompliant parents will not be able to evade support payments by crossing an international border.

To this end, various international conventions regarding interjurisdictional enforcement of maintenance orders have been created, including the Hague Conference’s 1973 Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations and the 1956 United Nations Convention on the Recovery Abroad of Maintenance.

More than 100 nations currently have reciprocal arrangements for child support orders. Examples of reciprocal agreements include the UK Reciprocal Enforcement of Maintenance Orders (REMO) and those of Canada, Australia and New Zealand, the United States and the European Union.

Consequences of non-payment vary by jurisdiction, the length of time the parent has been noncompliant, and the amount owed. Typical penalties include wage garnishment and denial or suspension of drivers, hunting and professional licenses. In the United States, noncompliant parents who are more than $2500 in arrears may be denied passports under the Passport Denial Program. Noncompliance may also be treated as a criminal offense, and may result in prison sentences, fines and property seizure.

Child support laws in specific jurisdictions

Criticism of child support policies

Current child support guidelines and policies have been criticized by certain groups.

Melanie McCulley, a South Carolina attorney coined the term male abortion in 1998, suggesting that a father should be allowed to disclaim his obligations to an unborn child early in the pregnancy. Proponents hold that concept begins with the premise that when an unmarried woman becomes pregnant, she has the option of abortion, adoption, or parenthood; and argues, in the context of legally recognized gender equality, that in the earliest stages of pregnancy the putative (alleged) father should have the same human rights to relinquish all future parental rights and financial responsibility—leaving the informed mother with the same three options.

McCulley states:

‘When a female determines she is pregnant, she has the freedom to decide if she has the maturity level to undertake the responsibilities of motherhood, if she is financially able to support a child, if she is at a place in her career to take the time to have a child, or if she has other concerns precluding her from carrying the child to term. After weighing her options, the female may choose abortion. Once she aborts the fetus, the female’s interests in and obligations to the child are terminated. In stark contrast, the unwed father has no options. His responsibilities to the child begin at conception and can only be terminated with the female’s decision to abort the fetus or with the mother’s decision to give the child up for adoption. Thus, he must rely on the decisions of the female to determine his future. The putative father does not have the luxury, after the fact of conception, to decide that he is not ready for fatherhood. Unlike the female, he has no escape route’.

McCulley’s male abortion concept aims to equalize the legal status of unwed men and unwed women by giving the unwed man by law the ability to ‘abort’ his rights in and obligations to the child. If a woman decides to keep the child the father may choose not to by severing all ties legally.

The legal concept was tried in Dubay v. Wells and was dismissed. This was not surprising, since legislation in the various jurisdictions currently sets forth guidelines for when child support is owed as well as its amount. Accordingly legislation would be required to change the law to implement McCulley’s concept.