Child support law deals with the legal obligation of non-custodial parents to contribute financially to the rearing of their children. These laws are enacted at the state level. However, because a child support order remains in effect until a child reaches the age of majority (or even longer in some instances), administration of the order can become a multi-jurisdictional issue as parents and children relocate. Determinations of child support are usually incorporated into family law cases that also cover matters such as divorce, separation, paternity, custody, and visitation. Like other family law decrees, support determinations are subject to modification when appropriate.
The obligation to pay child support is considered to be independent of any other rights or responsibilities of the non-custodial parent. For example, it is quite common for a court to decide questions of child support and visitation at the same time, and the judge’s decisions on the two issues may appear in the same order. This may lead a non-custodial parent to believe that the duty to pay support and the right to visitation are mutually dependent. They are not. Even if the custodial parent wrongfully denies visitation, support must still be paid. Withholding child support for any reason can lead to contempt of court and a host of other serious consequences.
Obtaining a Child Support Decree
Requesting child support is a relatively straightforward process. If a family law case has already been opened, the parent entitled to support can simply file a petition for support with the court. A similar filing may be submitted in a new case, although special notice rules apply for initiating the case to ensure the court can lawfully assert jurisdiction over the other parent. In some cases, the non-custodial parent may be the one to request a child support order, as that parent will need to demonstrate that he or she is actively paying support before the court will grant requests pertaining to custody or visitation.
State statutes provide specific guidelines for calculating child support. To simplify the process, most states have published worksheets that allow parties to enter income and expense information to arrive at a “presumptive” monthly payment amount. This figure is said to be presumptive because it is possible to deviate upward or downward based on unique circumstances. If the parties can agree on the final amount, then a stipulated order can be submitted for the court’s approval. If the parties cannot agree, it will be necessary to hold a hearing for the judge to decide the matter.
From a tax perspective, child support payments are a neutral event. The custodial parent need not declare the payments as income, and the non-custodial parent cannot deduct them as an expense. Payments are made to the court or a state child support agency. Parents who are obligated to pay support should refuse requests for direct payment by the recipient parent. There are numerous cases in which a parent did not receive credit for child support paid directly to the other parent. Moreover, despite the fact that the money ends up going to the custodial parent, support is meant to benefit the child. Informal agreements between the parents excusing missed payments will not be recognized.
Modification of Existing Decrees
It is extremely common for child support orders to be modified from time to time to reflect changes in the living circumstances of the parties. As the child grows up, either parent may experience a sudden increase or decrease in income. The child may develop special interests or needs that result in additional expenses. If nothing else, periodic adjustments to child support will be necessary to keep up with inflation and ordinary increases in the cost of living. These and other factors can justify a modification of the support order, but the party requesting the change has the burden of proving that the changed circumstances meet the applicable legal standard in that jurisdiction.
Child Support Enforcement
In an ideal world every non-custodial parent would pay child support voluntarily. Of course this does not always happen, and it is often necessary to take steps to enforce a support order through the court system, a local government agency, or a private attorney. Child support orders are like other types of civil judgments. They can be collected by garnishing the non-custodial parent’s wages, seizing bank accounts and other personal property, or placing a lien on real estate. Special laws also allow past support to be collected from income tax refunds. Delinquent parents may also face suspension of driving privileges, passports, and professional licenses. In severe cases, a judge may decide to impose jail time as a penalty for non-payment.
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