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Child support

Child support
In many countries, child support or child maintenance 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 been terminated. 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.

Legal theory

Child support is based on the policy that parents are obligated 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 is 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.

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.

Different jurisdictions

In very few 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. In most jurisdictions the two rights and obligations are completely separate and individually enforceable as some jurisdictions view the withholding of support 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, 10 states (Colorado, Delaware, Florida, Indiana, 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.

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.

Determining Child Support

There are two approaches to calculating child support. One, based on the costs of supporting a child, the other related to the capacity of parents to contribute to the support. 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.

United States

In the United States, each individual state is responsible for developing its own "guidelines" for determining child support. Federal IV-D Regulations require uniform application of the child support guidelines throughout a state, but each state can determine its own method of calculating support. Most states have therefore adopted its own "Child Support Guidelines Worksheet" which local courts and state Child Support Enforcement Offices use for determining the "standard calculation" of child support in that state. The court may choose to deviate from this standard calculation in any particular case.

"Dead-beat" parents

Non-custodial parents who avoid their child support obligations are often termed dead-beat parents. The typical non-custodial parent is the father, thus the common reference to "deadbeat dads". This prejudicial characterization of parents ignores the fact that many non-custodial parents are simply unable to pay at the rates they have been assessed. The US Department of Health and Human Services estimates that 68% of child support cases had arrears owed in 2003 (a figure up from 53% in 1999). Many of these arrearage cases are due to administrative practices such as imputing income to parents where it does not exist and issuing default orders of support. Some non-custodial parents claim their payments are too high. According to one study 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.

In the United States, many states 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 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 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" However, on September 4, 1998, the Supreme Court of Alaska 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.

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.

A note about the term "Dead-beat parent" this a descriptive term used more by Child Support advocacy groups than by Child Support Agencies. Child Support Agencies described clients either as in compliance, not in compliance or criminally non compliant. Compliance is judged by the paying party's performance in meeting the terms of the Child Support court order.

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, like Temporary Assistance for Needy Families (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 50 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 5% as a penalty.
Despite the claims of some that PRWORA and its welfare connection are generating government income through child support collections, the US Department of Health and Human Services reportsthat 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.

Housing and common wages

The Out of Reach report produced by the Nation Low Income Housing Coalition report states that 30% of household income is affordable for housing costs. Some states, like California, will automatically garnish 50% of a pesons income to pay child support. That leaves only 20% of an obligor's income to pay for taxes, utilities, food, clothes, gas, car payments, health insurance, other expenses, and other children that are not a part of the support order but live with the obligor.

To use California as an example, the Fair Market Rent (FMR) for a two-bedroom apartment is $1,149. In order to afford this level of rent and utilities, without paying more than 30% of income on housing, a household must earn $3,829 monthly or $45,950 annually. Assuming a 40-hour work week, 52 weeks per year, this level of income translates into a Housing Wage of $22.09. At minimum wage, an obligor only earns an hourly wage of $6.75. In order to afford the FMR for a two-bedroom apartment without child support payments, a minimum wage earner must work 131 hours per week, 52 weeks per year. Or, a household must include 3.3 minimum wage earner(s) working 40 hours per week year-round in order to make the two bedroom FMR affordable. In order to afford the FMR for a two-bedroom apartment with child support payments, we can assume the 50% automatic garnishment, and we essentially have found that an obligor takes home about $3.36 an hour or $540 a month. With a child support obligor that works a regular full-time job at minimum wage, $162 in monthly rent is affordable, while the FMR for a one-bedroom is $942.

Federal and state laws require state child support agencies to develop guidelines to ensure that support awards are fair and appropriate, and to review these guidelines at four year intervals. Rather than conduct locally-relevant research into state wage levels and costs of living, many states have contracted with a handful of for-profit companies to develop their guidelines.



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