Child Support: Determination, Enforcement, Modification and Termination

Child Support: Determination, Enforcement, Modification and Termination

        A 2015 study found that it will cost a married, middle-class couple $284,570 to provide a child with food, shelter, and other necessities until he reaches the age of 17.[1] Raising a child is expensive. A parent’s duty to provide child support is so fundamental to the American way of life that, in some states, when a parent who is paying child support dies, his obligation can survive death and his estate must continue paying his child support obligation.[2] This presentation provides an overview of child support, from its determination to modification to enforcement and to termination.

Child Support Determination

            The process for determining child support starts with the determination of custody. The custodial parent is the parent with whom the child lives and who is primarily responsible for the day-to-day well-being of the child. Custody can be sole or joint and there are many different forms of joint custody, from arrangements whereby the child stays with each parent half the time to arrangements where in one spouse sees the child only occasionally, but where in each parent has a say in the upbringing.  

Because custodial parents need to spend money on the day-to-day well-being of the child, the parent who is not the primary caregiver is usually expected to contribute to the expenses of raising the child. Even in cases of joint custody, the parent who is better off financially may be required to assist the other parent with these expenses, under the theory that both parents have legal responsibilities to support their children.

Each state has developed guidelines to determine parents’ financial obligations to provide support.[3] In most states, the non-custodial parent’s support obligation is determined after the court approximates what the couple would have spent on raising the child if they had stayed together, and apportions that amount between the two. A court will look at how much money each parent makes from various sources of income and then adjust that amount based on various factors (such as whether one parent is paying spousal support) to determine the “adjusted gross income” of each parent. After the adjusted gross income is calculated, the court applies a specified formula to determine the child’s total “basic child support” needs.

This is not the “total child support obligation,” however. To reach the total child support obligation the court adds in the costs of providing the child with medical, dental, and vision insurance, certain educational expenses and other factors that may vary by state.

The total child support obligation is then divided between the two parents, considering their incomes, to ensure that neither is paying more than he or she can afford.[4]

Other states utilize a percentage of income model, which is a lot less complex. In this model, the court only considers the non-custodial parent’s income and applies a predetermined percentage to that income to determine that parent’s total child support obligation.[5]

Today, many states offer online calculators to facilitate a better understanding of a parent’s financial obligations to his or her children.

Child Support Order Enforcement

            Unfortunately, nearly 60% of child support ordered payments are not fully made. Every state has administrative agencies to enforce child support orders.[6]

            Pressure can be placed on a non-paying parent in several ways. The delinquent parent’s employer may be required to withhold child support payments from a paycheck, like tax withholdings. Also, federal or state income tax refunds can be diverted and used to satisfy child support obligations. Other methods of applying pressure include: [7]

·         Denying the parent’s passport;

·         Making his or her properties subject to liens; or

·         Suspending driver’s or occupational licenses.

In many jurisdictions, a delinquent parent may be held in contempt of court or criminally prosecuted for failing to make court-ordered child support payments.[8]

            Despite the plethora of enforcement options, a custodial parent cannot prevent the parent owing child support from visiting his child as a method to compel him to make payments. Similarly, the non-custodial parent cannot refuse to pay child support as retaliation for the custodial parent wrongful refusal to let her see the child.[9]

Child Support Order Modification

            Child support orders may be modified. To obtain a modification, the requesting parent should petition the court that made the initial child support determination. While the procedure for modifying the order can vary, courts will seek a change in circumstances. Some states may require a substantial change in the financial circumstances of one or both parents. Change in circumstances that may warrant changes in the amount of child support may include:

·         the loss of a job;

·         the birth of another child from a new relationship;

·         a change in the amount of time the child spends with each parent; or

·         a change in the amount of care a child requires.

Also, when one parent is incarcerated or institutionalized in a mental care facility for more than 90 days, her obligation to pay child support is suspended until she is released. However, child support is not suspended if the parent:

·         while in jail, still has the financial ability to pay the support;

·         was jailed or institutionalized for domestic violence against the child or the child’s other parent; or

·         was placed in jail for failing to pay child support.[10]

Child Support Order Termination

Parents only have a legal duty to support their children until they are no longer legally considered children, which in most states, is the age of 18. In some circumstances, however, the duty to provide child support may last until the child turns 19, 21, or 23. The duty to pay child support can also terminate when the child becomes emancipated, meaning the child has taken legal responsibility for his or her own care.[11]

While age of majority and emancipation are the two most common ways child support can be terminated, there are others. Some states will terminate child support orders under the following circumstances:

·         The non-custodial parent gets custody of the child;

·         The non-custodial and custodial parent move in together and form one household;[12]

·         The non-custodial parent terminates his parental rights;[13]

·         The child marries;

·         The child joins the military; or

·         The child dies.[14]

            Child support is not meant to be a complete solution to the custodial parent’s financial issues and is also not meant to be the only financial source for raising a child. Instead, it assumed that parental responsibilities to support their children apply regardless of the custodial arrangement. Child support is also a dynamic calculation that can be changed based on circumstances, especially the needs of the child.