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Child support

From Academic Kids

In many countries, child support is the ongoing obligation for a periodic payment made by a non-custodial parent to a custodial parent, caregiver or guardian, for the care and support of children of a relationship or marriage that has broken down. In family law, child support is often arranged as part of a divorce, marital separation, dissolution, annulment or dissolution of a civil union and may supplement alimony (spousal support) arrangements.

Contents

Legal theory

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 is based on the policy that parents are obliged to pay for the support of their children, even when the children are not living with both biological parents. Though courts typically permit visitation rights to non-custodial parents, in such separations one parent is given custody and the role of primary caregiver. In such cases, the other parent still remains obligated to pay a proportion of the costs involved in raising the child. These costs are often still considered an obligation, even when the other parent has been legally limited or prevented from participating in or making decisions involving the upbringing of the child or children. It is also important to note the custodial parent still must pay a percentage of the costs incurred raising a child, even if a non-custodial parent has been ordered to make child support payments. In Massachusetts, for example,it (http://www.cse.state.ma.us/parents/cseguide.htm|)'s the responsibility of the custodial parent alone to pay the first $100 in all uninsured medical costs for each child, per year. Only then will the courts consider authorizing child-support money from a non-custodial parent to be used for said costs.

Different jurisdictions

In some jurisdictions the privilege of visitation (or access) is tied to child support. If the custodial parent refuses to allow the non-custodial parent visitation with the child, the non-custodial parent can petition the court to temporarily stop support payments. However, some jurisdictions view this as punishing the child, not the parent, and in such cases the court may order additional visitation to the non-custodial parent. Visitation, is a limited form of custody.

Child support laws vary around the world. Some jurisdictions sort the arrangements out directly between the parents. Others involve the state collecting child support payments as though it were a tax. In the United States some non-custodial parents claim there is no accountablity on the part of the custodial parent regarding how child support payments are spent and accuse the custodial parent of spending support money on non-child expenses. Depending on the jurisdiction, a custodial parent might legally be required to account for how child support money is spent. In the United States, eleven states (Colorado, Delaware, Florida, Indiana, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, Oregon, and Washington) allow courts to demand an accounting from custodial parent on how child support dollars are spent. Additionally, Alabama courts have authorized such accounting under certain specific circumstances. Despite this, some non-custodial parents in such situations still view their only recourse lies in petitioning the court for a change of custody.

"Dead-beat" parents

Non-custodial parents who avoid their child support obligations are often termed dead-beat parents. The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999). Some non-custodial parents claim their payments are too high. According to one study (http://www.acf.dhhs.gov/programs/cse/new/csr9701.htm#9701c|) 38% of Illinois non-custodial parents not paying child-support said they lacked the money to pay. Twenty-three percent used non-payment to protest a lack of visitation rights. Fourteen percent complained of no accountability over the spending of their child support money, while 13% said they didn't want their child(ren) and 12% denied parentage. Additionally, some non-custodial parents who have been subject to acrimonious divorces often see these payments as unfair and excessive. Some custodial parents who have been victimized in abusive relationships view the avoidance of child support payments as another means of their spouses perpetuating the abuse.

In the United States, many states have passed laws that suspend an individual's licenses (i.e. driver's license, business license, contractor license) if that individual has significant arrearage in support payments or does not consistently pay support. This authority does not extend to professionals who receive licensure through non-governmental agencies. In 2000, the state of Tennessee revoked (http://www.state.tn.us/humanserv/Child_sup_revoke.htm|) the driver’s licenses of 1,372 people who collectively owed more than $13 million in child support. In Texas non-custodial parents behind more than three monthsin (http://www.oag.state.tx.us/child/faq.shtml|) child-support payments can have court-ordered payments deducted from their wages, can have federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources intercepted by child support enforcement agencies, can have licenses (including hunting and fishing licenses) suspended, and a judge may sentence a nonpaying parent to jail and enter a judgment for past due child support. Some have taken the view that such penalties are unconstitutional, even alleging that "The People employed in the family courts and family court services are criminals" (http://www.livebeatdads.us/) However, on September 4, 1998, the Supreme Court of Alaska (http://www.ncsl.org/programs/cyf/briefak.htm|) upheld a law allowing state agencies to revoke driver's licenses of parents seriously delinquent in child support obligations. And in the case of United States of America v. Sage, U.S. Court of Appeals (2nd Cir., 1996), the court upheld the constitutionality of a law allowing federal fines and up to two years imprisonment for a person willfully failing to pay more than $5,000 in child support over a year or more when said child resides in a different state from that of the non-custodial parent. Child Support Recovery Act of 1992 (http://kids4kids.com/crcnyc/nycases.htm|)

Missing image
Typical_Support_Order_0001.jpg
U.S. court order issued by family division of county court garnishing typically the father's income

The U.S. law commonly known as the Bradley Amendment was passed in 1986 to automatically trigger a non expiring lien whenever child support becomes past-due.

  • The law overrides any state's statute of limitations.
  • The law disallows any judicial discretion, even from bankruptcy judges.
  • The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification.

But, like any other past-due debt, the obligee, typically a mother, may forgive what is owed to her.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an offer in compromise.

Child support and welfare

Since enactment in 1996 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), a major impetus to collection of child support in the United States is the Welfare law. A custodial parent receiving public assistance (Temporary Aid to Needy Families or TANF) is required to assign his or her right to child support to the Department of Welfare before cash assistance is received. Another requirement is that the custodial parent must pursue child support from the non-custodial parent . Where successful, the child support is then diverted to the welfare program instead of the custodial parent as partial reimbursement of the cash assistance being paid. If the amount of child support paid equals or exceeds the assistance grant, the family is moved off the cash assistance portion of the program (they may still be eligible for food stamps and medical assistance). Other provisions of PRWORA require the custodial parent to find employment and will assist that parent in finding and maintaining such employment (such as buying new work clothes or repairing a vehicle to get them to work). If the custodial parent becomes employed, their cash assistance will be reduced based on the amount of income received. If child support is also being paid, the chances are that it will then be greater than the assistance grant and the family will move off the welfare rolls (at least as far as cash assistance is concerned) . The child support enforcement programs in all fifty states are primarily funded by the federal government through each state’s Department of Welfare. Should a state's handling of child-support enforcement not comply with PRWORA standards, that state's program funding can be reduced by five percent as a penalty.

Despite the claims of some that PRWORA and it's welfare connection are generating government income through child support collections, the US Department of Health and Human Services reportsthat (http://www.acf.hhs.gov/programs/cse/pubs/2004/reports/preliminary_data/|) in fiscal year 2003, 90% of child support collections went directly to families. In fact, the percent of payments going to families was 86% or more in 47 states and in seven states exceeded 95%. Only the remaining 5-14% reimburses taxpayers for the cost of welfare expenses. Nevertheless, half of current unpaid child support debt is owed to the government and not to families. Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement stated, "We need to be more aggressive about leveraging older debt owed to the government as an incentive to obtain more reliable payments of current support to families." Towards this end, the United States federal government, through the Social Security Administration, provides up to $4.1 billion in financial incentives to states that create support and arrearage orders, and then collect (cf. 6B, 6C, & 6D). (http://www.ssa.gov/OP_Home/ssact/title04/0458.htm)

Court services

Some claim that requiring non-custodial parents to pay child-support creates jobs to sustain the divorce industry. They point out that family court judges earn $90,000 to $160,000 per year (cf. p. 1 table) (http://www.ncsconline.org/WC/Publications/KIS_JudComJudSal040104.pdf) and each judge requires a staff. One association claims the industry consists of "60,000 professionals includes line/managerial/executive child support staff; state and local agencies; judges; court masters; hearing officers; government and private attorneys; social workers; advocates; corporations that partner with government to provide child support services and private collection agencies." (http://www.ncsea.org/) An industry of 60,000 professionals would comprise less than one-twentieth of a percent of the United State's 147.3 million person workforce.

In the United States, state courts typically maintain a child support division - essentially an accounting department recording amounts owed and paid. Some maintain that because the county clerks responsible for record keeping are not certified accountants, inaccuracies concerning child support payments are common. Some people also claim that outside auditors do not monitor the accuracy of child support reports. In many counties, like Illinois’ Cook and Kane counties, the division audits themselves. However other jurisidictions adopt different methods - for example, in 2003 independent auditors reviewed and audited the Child Support Enforcement Agency of Hawaii. The state of Texas has also conducted such an independent audit (http://www.ncsl.org/programs/cyf/PerformIB.htm|). The Clark County, Nevada district attorney's office has also been independently audited (http://www.lasvegassun.com/sunbin/stories/text/2003/dec/12/516011655.html|) (in 2003) regarding child support payment collections. And also in 2003, the state of Maryland recommended (http://www.ola.state.md.us/reportfiles/fiscal/HumanResources/csea02.pdf|) conducted outside audits on it's five metro child support enforcement operations.

While the county's reports are the official record keeper (http://www.cookcountycourt.org/rules/index.html), the state also have their support reports,cancelled (http://www.ilchildsupport.com/online_services.html) checks with relevant support orders is all the evidence needed to prove your claim.


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