Part 1, Module 2: Child Support
Module 2: Child Support
Introduction to Child Support
All parents have the obligation to support their children from birth until the child is emancipated. That is such a universal proposition that it is a standard part of the law in every state. How that proposition is enforced by law, specifically when the parents are no longer living together, is the subject of this module.
The key here is that everything in this field is geared toward the legal concept of “the best interests of the child.” That is the guiding principle of every legislature, judge and governmental agency when working in the child-oriented areas of domestic relations. While some well-off custodial parents may waive child support, that is generally frowned upon by courts. In fact, waivers of child support in prenuptial agreements are generally considered to be unenforceable.
Child support is defined as “Court-ordered payments made by one parent to the other for the support of the couple’s minor children.” Child support is paid by the parent that the child does not reside with, called the “non-custodial parent”, to the parent that the child does reside with, who is called the “custodial parent.” The custodial parent is also often called the “payee” or “obligee”, while the non-custodial parent is called the “payor” or “obligor.” Both are also called “parties” to the action.
Child support is intended to be used for the child’s food, shelter, education, medical needs, clothing, and other essentials. However, for the most part, child support payments are undifferentiated monetary payments. One of the aspects of child support that creates problems between the parties is that the non-custodial parent has no control over what the custodial parent does with the money once it is transferred. It is assumed to be put into the pool of money from which the custodial parent pays the bills as a matter of course. But the non-custodial parent has little recourse regarding how the money is spent. If the money is being spent on illegal or addictive activities, the proper recourse is a motion to change custody or change child support amounts paid, using that spending pattern as evidence. But the spending in and of itself is not actionable.
Another aspect of child support that can create problems is the notion of “in kind” contributions for the welfare of the child. These are anything that the non-custodial parent gives to the child, like food, clothing, or even money, that does not officially go through the child support process and it not paid to the custodial parent. The only payment of any kind that counts towards a child support obligation is cash paid by the non-custodial parent to the custodial parent. In-kind contributions, such as buying the child clothing, do not offset a child support obligation unless the custodial parent allows it to count against the child support obligation or unless a formal agreement allows it. For example, a child support agreement might stipulate that the non-custodial parent will purchase clothing for the children and that up to $1,000 per year of such spending counts against child support obligation.
Child support can only be assessed against a person who has legally been determined to be the parent of the child. This can be based on the circumstances of the birth, other evidence, adoption or affirmation of parentage.
First, if a child is born to a married couple, and the pregnancy took place during the marriage, the husband is legally presumed to be the father. This can presumption can only be overcome with evidence to the contrary (such as a DNA test).
If the couple is not married, but the father signs paternity papers acknowledging the paternity of the child, that is legally sufficient. Note that simply putting a name on a birth certificate is not sufficient to legally establish parentage. However, if the putative father informally holds himself out to be the child’s father, he may be barred from denying paternity. This is sometimes known as paternity by estoppel.
In the case of unmarried same-sex female parents, where one of the women carries the child, the other partner would need to sign a parentage agreement and file it with the court to legally become the parent. For same-sex male partners or females who adopt, each of the parties would need to sign a parentage agreement.
If there is a dispute about who the father is, an agency and/or court proceeding may be necessary. Relatively simply DNA testing is more than 99.9 percent accurate and can usually be used to conclusively determine parentage.
Determining Support Amounts
There was a time when determining child support amounts was more of an art than a science. The judge would attempt to balance of the needs of the child and the parents and come up with an amount that was fair to all parties.
Starting in the 1970’s, though, states started relying on economic and sociological data to formulate guidelines on the proper child support amounts, using minimum amounts in the cases of people who are unable to pay or applying various formulas. Today, every state uses guidelines, determined by state statute and variably based in each state’s economy. They are set to monthly amounts.
Models for Determining Child Support Amounts
Most states use one of three models for determining child support obligations:
--the Income Shares Model;
--the Percentage of Income Model; or
--the “Melson Formula”.
All three of these formulas and their variations have certain things in common. First, all allow the non-custodial parent a “reserve” of money that is designed to be enough to survive. Next, all these models have guidelines relating to “imputed income” or “minimum income.” The idea of a minimum income is applied by courts to a parent who reports little or no income and is usually comparable to the state or city minimum wage. A parent reporting no or very little income to the court is treated by the court as if that parent had a minimum wage job, and then that wage is applied to the formula. The underlying assumption is that almost everyone is capable of earning minimum wage if so inclined.
Federal regulations and many states also require that all child support orders have provisions to cover the children’s medical expenses, and they all have formulas to make that happen. Most of these state formulas also have provisions that account for actual expenses as well, including child care expenses, the acknowledgement of other children not the product of this relationship and extraordinary expenses of various kinds relating to the children.
Also note that the formulas that we will focus on are applied when there are distinct custodial and non-custodial parents. There are other formulas and models that are applied when there is a shared parenting agreement or split custody. Some formulas accommodate “extraordinary visitation”, such as when child visits an out-of-state parent for the summer. While they arrive at the bottom line in different manners, these approaches typically lead to similar bottom lines.
Income Shares Model
The Income Shares Model tries to create a living situation for the child that reflects the income of both parents. In this model, the child receives the benefit of same percentage of income that she would have received had the parents continued to live together. It tries to balance income, expenses, medical costs, and so on, and can include the cost of education and long-term care for disabled children, or any other expenses the couple agrees on or are required to be paid under the law.
This model is determined by totaling the income of the parents, creating an income ratio of each parent to the total, and then applying that percentage to the amount for each child on a sliding scale. We will go over this in detail and look at examples in the last module of this course.
The income shares model is far and away the most popular model in the US.
Percentage of Income Model
The Percentage of Income Model only considers the income of the non-custodial parent and sets a percentage of that income as the child support obligation, though the percentage varies based on the circumstances. There are two variations of this model: The Flat Percentage Model, which applies a strict formula, and the Variable Percentage Model, which accommodates different financial circumstances of the parents on a sliding scale.
The Melson Formula
Back in the days when each court had a free hand to develop his own child support guidelines, a Delaware judge named Elwood F. Melson developed a formula which used the basic principles behind the Income Shares Model and added some other considerations, including accommodating each parents’ basic needs. Three states have adopted this formula.
The District of Columbia has developed its own formula, which is based on a percentage of income, reduced by a formula based on the custodial parent’s income.
Enforcement of Child Support Orders
Each state has a child support enforcement agency, responsible for collecting and distributing child support from the non-custodial parent to the custodial parent. The agencies also track the locations and employment of the parties and are themselves parties to child support actions. While these agencies are state-bound, they do engage in helping other states in cross-state enforcement of the laws.
Any failure to pay the child support payment on time results in an arrearage, which is the amount owed from the non-custodial parent to the custodial parent because of non-payment. That amount can be collected in the same ways that other debts can be collected—by attaching property or wages. For example, the money can be collected by attaching the wages of the non-custodial parent and then transferring that money directly to the custodial parent’s bank account.
But there are additional statutes that come into play with harsher legal penalties for child support arrearages than for nonpayment of other debts. We will cover those in the fourth module.
Children on public assistance where the non-custodial parent does not pay child support for whatever reason are in a category of their own. If the custodial parent receives public assistance for the child due to the necessity borne of the nonpayment, the non-custodial parent who failed to pay is liable to indemnify the state up to the amount of state assistance.
Changing or Terminating Child Support Obligations
Change of Circumstances
Either party can move to change the child support amount by showing a change of circumstances in the lives of the parties, including the child, although many courts limit the number of times that motion can be filed and heard (often once a year).
A change of circumstances can be change of income of any party (which usually must be at least 10 percent), change in legitimate expenses of any party, change in visitation hours that effectively change where the child lives or other changes that definitively affect the lives of the parties. In most courts, a motion to modify the child support order based on change of circumstances is filed with the court along with supporting documentation. The motion is often first heard by a magistrate, who makes a recommendation to the judge.
The obligation to pay child support continues until the child dies or reaches the “age of emancipation.” That age is determined by state statute, and it usually parallels the time when a person can legally sign a contract.
Emancipation in most states (33 of them) happens on the child’s 18th birthday. This is called the “age of majority.” That is the date on which parents are no longer responsible for their children’s actions. However, some states set the age of majority at 19, 20 or 21, some have various other circumstantial restrictions, and some have different ages or circumstances for majority and emancipation.
Exceptions to Emancipation
The statutory exceptions to emancipation at the age of majority are of two varieties: before or after the child reaches that age.
To be emancipated before the statutory age of majority, the child must be leading a completely independent life. That would include active service in the military, marriage, graduation from high school with a job before the age of majority, proof that the child is living independently away from the home of the custodial parent, the child’s deportation, or any other circumstance in which the court decides that the child is better off being emancipated or in which a court terminates the parental rights of the non-custodial parents. This category also includes the death of the child and/or of the non-custodial parent. However, if the child has a job but remains in the home, that is usually not enough of an indicator of independence to emancipate the child.
After the child reaches the statutory age of majority birthday, the presumption is that the child will be emancipated. However, this can be altered by agreement of the parties or by statute. For instance, child support could continue through the child’s college career if the parents agree to that. There are some cases where child support may continue almost indefinitely, such as when the child has physical or mental challenges that make it impossible for that child to have an independent life. A judge may also, for example, determine that based on the family’s lifestyle and resources, it is reasonable to force the parent to contribute to a college education.
Termination of Parental Rights
A judge can terminate a parent’s rights to a child in some extreme circumstances. These include where the parent is a clear and constant danger to the child through child abuse or drug addiction or a parent who has completely disappeared from the child’s life. A motion to terminate parental rights can come from the other parent or from a social service or child support agency. Once parental rights are terminated, so are child support obligations.
There are some cases where a child is adopted by a new parent after the custodial parent remarries. Adoption of a child by a third party terminates the rights and obligations of the non-custodial birth parent, and so terminates the child support obligations of the biological actual parent. The non-custodial parent loses all rights to and obligations for the child, as an adoption has the same legal affect as if the child had never been born to the parent who is not a party to the adoption. Still, adoption does not wipe out the child support arrearages of the original parent.
By motion of the parties
As in the case of modification of the child support amount, either party can move to terminate child support at any time. Each state handles this differently, but some of the grounds could be that the custodial parent has remarried and no longer needs the money or that the child has moved in with the non-custodial parent. Depending on the state, a motion with the court or filling out an administrative form will trigger an investigation by the support agency, which will make a determination or recommendation to the court.
Formally Terminating the Support Obligation
Once a child is emancipated, the non-custodial parent’s child support obligation is terminated. But that is not necessarily the end of the story. If there are any child support arrearages at that point, they still need to be paid, and failure to pay past-due support even after emancipation will have the same consequences as before emancipation.
Even though the agreement, applicable statute or court order will contain language indicating at what point the child is emancipated, the parties will sometimes need to take steps to legally terminate the financial obligation. Depending on the state, there may need to be a separate court order terminating the child support, but it is always incumbent on the parties to at least notify the court and the appropriate agencies when that time has come. The parties should not count on the child support agency acting of its own accord to terminate the order and stop a wage levy on the non-custodial parent. Depending on the state, the parties will probably need to notify the court and/or the child support agency that a child is emancipated. At that point, the agency will take the necessary steps to end the non-custodial parent’s wage attachment. However, this may take a while, so the best advice is always to file the paperwork with the support agency several months before the emancipation date.
Next, we will turn to spousal support, the other important class of monetary obligations that follow the breakup of a marriage (or, in some cases, of a long-term relationship).
 See, for ex. Cal Family Code Sec. 4053: “A parent’s first and principal obligation is to support his or her minor children….”
 See for ex. Ohio Rev. Code Sec. 3111.03 (A)(1).
 See for ex. New York Consolidated Laws FCT Sec. 418(a).
 The states and territories that use this model are: Alabama, Arizona, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming, Guam, Virgin Islands.
 The states that use this model are: Alaska, Mississippi, Nevada and Wisconsin.
 The states that use this model are: Arkansas, North Dakota, and Texas.
 Delaware, Hawaii and Montana.
 See ex. Illinois: 750 ILCS 5/510.
 For ex. Florida: F.S. 39.01(12) “‘Child’ or ‘youth’ means any unmarried person under the age of 18 years who has not been emancipated by order of the court.”
 See ex. Michigan: Michigan Compiled Laws Sec. 722.4.
 For ex. New York: N.Y. Dom. Rel. Law § 110
 See ex. Colorado: C.R.S.14-10-115-13(a).
 See ex. Section 9-12-312 of the Arkansas state code.