Child support

In divorce cases, child support payments may be determined as part of the divorce settlement, along with other issues, such as alimony, custody and visitation. In other cases, there are several steps that must be undertaken to receive court-ordered child support. Some parents anticipating that they will receive child support may hire lawyers to oversee their child support cases for them; others may file their own applications in their local courthouses.

While procedures vary by jurisdiction, the process of filing a motion for court ordered child support typically has several basic steps.

1. One parent, or his or her attorney, must appear at the local magistrate or courthouse to file an application or complaint for the establishment of child support. The information required varies by jurisdiction, but generally collects identifying data about both parents and the child(ren) involved in the case, including their names, social security or tax identification numbers and dates of birth. Parents may also be required to furnish details relating to their marriage and divorce, if applicable, as well as documents certifying the identity and parentage of the child(ren). Local jurisdictions may charge fees for filing such applications, however, if the filing parent is receiving any sort of public assistance, these fees may be waived.[40][41][42][43]
2. The other parent is located, and served a court summons by a local sheriff, police officer, bailiff or process server. The summons informs the other parent that they are being sued for child support. Once served, the other parent must attend a mandatory court hearing to determine if they are responsible for child support payments.[41][42]
3. In cases where parentage of a child is denied, has not been established by marriage or is not listed on the birth certificate, or where paternity fraud is suspected, courts may order or require establishment of paternity. Paternity may be established voluntarily if the father signs an affidavit or may be proven through DNA testing in contested cases. Once the identity of the father is confirmed through DNA testing, the child's birth certificate may be amended to include the father's name.[17][22][43][44][45]
4. After the responsibility for child support is established and questions of paternity have been answered to the court's satisfaction, the court will notify the obligor and order that parent to make timely child support payments, fees (which may be 0, $60,[46] or more) and establish any other provisions, such as medical orders. Generally the father[47][48] will be required to pay for genetic testing.

Various approaches to calculating the amount of child support award payments exist. Many jurisdictions consider multiple sources of information when determining support, taking into account the income of the parents, the number and ages of children living in the home, basic living expenses and school fees.[49] If the child has special needs, such as treatment for a serious illness or disability, these costs may also be taken into consideration.[43][50][51][52]

Guidelines for support orders may be based on laws that require obligors to pay a flat percentage of their annual income toward their children's expenses. Often two approaches are combined. In the United Kingdom, for instance, there are four basic rates of child support based on the obligors' income, which are then modified and adjusted based on several factors.[25][32][53] In the United States, the federal government requires all states to have guideline calculations. Guidelines are either a percentage of income or more usually in the form of tables listing incomes and the amount needed to support one to six children. These computations are often performed by computer programs upon input of certain financial information including, earnings, visitation (overnights with the non-custodial parent (NCP)), health insurance costs, and several other factors.

If tables are used in the guidelines those tables are computed by economists such as Policy Studies, Inc.[54] They examine spending patterns of couples without children and couples with children in the consumer expenditure survey.[55] The amount of additional money spent on the children (for expenses such as automobile insurance; AP exams; cell phones and plans; Christmas presents; educational expenses (trips, pictures, study guides, tutoring, AP and SAT exams, books, supplies, and uniforms); laptops; music lessons; parking fees; private school tuition; sports activities; and summer camps is computed and reduced to a table. Separating parents then find their incomes in the table and how much average intact families pay on children. In the widely used income shares model that amount is divided in proportion to the parents income.[56]

Once established, child support orders typically remain static unless otherwise reviewed. Obligors and obligees reserve the right to request a court review for modification (typically six months to one year or more after the issuance of the order or if the circumstances have changed such that the child support would change significantly). For instance, if the obligor has a change in income or faces financial hardship, they may petition the court for a reduction in support payments. Examples of financial hardship include supporting other children, unemployment, extraordinary health care expenses, etc. Likewise, if the obligor is spending more time with the child, they may petition the court for a reduction or even a reversal in support payments. Conversely, if the child's expenses increase, the obligee may ask the court to increase payments to cover the new costs[57]

Although both parents have the right to petition the court for a support order adjustment, modifications are not automatic, and a judge may decide not to alter the amount of support after hearing the facts of the case. That is to say, simply because an obligors's income has decreased, a court may find that the decrease in income is of no fault of the child, and will not decrease the child's expenses, and therefore should not affect him or her financially. Likewise, a court may find that an increase in the child's expenses may have been calculated by the receiving parent and is not necessary, and therefore the support obligation of the paying parent should not increase.[31][50][58][59]

In United States law, the Bradley Amendment (1986, 42 U.S.C. § 666(a)(9)(c)) requires state courts to prohibit retroactive reduction of child support obligations. Specifically, it:

• automatically triggers a non-expiring lien whenever child support becomes past-due.
• overrides any state's statute of limitations.
• disallows any judicial discretion, even from bankruptcy judges.
• requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to promptly document changed circumstances or regard for his awareness of the need to make the notification.

Child support payments are distributed in a variety of ways. In cases where an obligor is liable for specific expenses such as school tuition, they may pay them directly instead of through the obligee.[27]

In some jurisdictions,[60] obligors (paying parents) are required to remit their payments to the governing federal or state child support enforcement agency (State Disbursement Unit). The payments are recorded, any portion required to reimburse the government is subtracted, and then the remainder is passed on to the obligee (receiving parent), either through direct deposit or checks.[61][62][63][64]

The first payee for child support depends on the current welfare status of the payee. For example, if the obligee is currently receiving a monthly check from the government, all current support collected during said month is paid to the government to reimburse the monies paid to the obligee. Regarding families formerly on assistance, current support is paid to the family first, and only after said support is received, the government may then collect additional payments to reimburse itself for previously paid assistance to the obligee (receiving parent). See 42 USC 657: "(A) Current Support Payments: To the extent that the amount so collected does not exceed the amount required to be paid to the family for the month in which collected, the State shall distribute the amount so collected to the family.".[65]

Within the United States, a 2007 study conducted through the University of Baltimore estimates that 50% of all child support arrears are owed to the government to reimburse welfare expenses. Half of U.S. states pass along none of the child support they collect to low-income families receiving welfare and other assistance, instead reimbursing themselves and the federal government. Most of the rest only pass along $50.00 per month. The bipartisan 2006 Deficit Reduction Act and other measures have sought to reduce the amount of money claimed by the government and to ensure that more funds are accessible by children and families, noting that more obligors (paying parents) are willing to pay child support when their children directly benefit from payments.[66]

Most U.S. states deliver child support benefits through direct deposit, but many states make payments to recipients who do not have a bank account through a prepaid debit card. State use of prepaid cards has helped increase the popularity of federal benefit debit cards, such as the Direct Express Debit MasterCard prepaid debit card offered by MasterCard, Visa, Chase,[67] and Comerica Bank.

The duration of support orders varies both by jurisdiction and by case. Requirements for support typically end when the child reaches the age of majority, which may range in age from 16[68] to 23 (Massachusetts and Hawaii)[69][70][71] or graduates from high school. Some countries and states have provisions that allow support to continue past the age of majority if the child is enrolled as a full-time, degree-seeking post-secondary student.[69][70][72] If the obligor owes back child support, they must continue to make payments until the debt is satisfied, regardless of the age of the child.

Several circumstances exist which allow for the termination of a support order for a child under the age of majority. These include the child's marriage, legal emancipation or death.[73][74]

With respect to child support obligations, a dead-beat parent is one who has refused to provide child support payments or expenses.

US Governmental child support agencies typically refer to clients as being in compliance, not in compliance or criminally non-compliant. Compliance is judged by the paying party's performance in meeting the financial terms of the legal child support court order. In some circumstances, obligors found "not in compliance" or "criminally non-compliant" have even had their professional (e.g. doctors, lawyers, dentists, etc.) and other (e.g. driver's) licenses suspended or revoked in an effort to collect monies for support and shared expenses.

While the US has an extremely negotiable system, Canadian laws are fairly automatic and "No-Fault". Child support is determined by the number of children and the obligor's income.

Regulations and laws on the enforcement of child support orders vary by country and state. In some jurisdictions, such as Australia, enforcement is overseen by a national office. In others, such as Canada, the responsibility to enforce child support orders rests with individual provinces, with financial and logistical assistance from the federal government.[75] In the United States child support enforcement is also handled largely at the state level, but non compliant parents who meet certain criteria, such as traveling across state lines to circumvent orders or owing more than two years of support payments, may be subjected to federal prosecution under the Federal Deadbeat Punishment Act.[76]

One focus of Article 27 of the Declaration of the Rights of the Child is the establishment and strengthening of international treaties to further aid in child support order enforcement across national and international boundaries.[77] Under these agreements, orders established in one country are considered valid and enforceable in another country, and may be pursued through local court processes. The goal of such conventions is to ensure that noncompliant parents will not be able to evade support payments by crossing an international border.

To this end, various international conventions regarding interjurisdictional enforcement of maintenance orders have been created, including the 1956 United Nations Convention on the Recovery Abroad of Maintenance,[12] the Hague Conference's 1973 Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations[15] and the 1956 United Nations Convention on the Recovery Abroad of Maintenance[12] and the 2007 Hague Maintenance Convention.

More than 100 nations currently have reciprocal arrangements for child support orders. Examples of reciprocal agreements include the UK Reciprocal Enforcement of Maintenance Orders (REMO)[20] and those of Canada,[78] Australia and New Zealand,[79] the United States[19] and the European Union.[14]

Consequences of non-payment vary by jurisdiction, the length of time the parent has been noncompliant, and the amount owed. Typical penalties include wage garnishment and denial or suspension of drivers, hunting and professional licenses.[78][80][81] In the United States, noncompliant parents who are more than $2500 in arrears may be denied passports under the Passport Denial Program.[82] Australia, Austria, and Finland do not imprison persons for failure to pay child-support arrears.[83] In the U.S., in contrast, non-payment of child support may be treated as a criminal offense or a civil offense, and it can result in a prison or jail term. In New York, continuous failure to provide child support is an E felony punishable by up to 4 years in prison. In addition, child-support debtors are subject to fines and property seizure.[84][85][86]

Since the duty to provide child support is separate from the civil requirement to obey a court order regarding visitation, it is exceptionally rare for a parent to be jailed for violating that part of the court order.[87]

In jurisdictions where child support is reduced or partially reduced when care is provided by both parents, there may be a financial incentive for the resident parent to restrict the amount of time the other parent can see the children. If a parent seeks a custody order with the goal of maximizing child support, the effect could be to reduce the amount of contact that the children have with the other parent without regard to their needs or wishes.

Payment is not made to children but between parents and the payee is not required to account for how child support money is spent. Critics of child support argue that, as a result, the support payments do not need to be used to support the child and can be regarded as a punishment to the parent who is paying child support. The response to that criticism is that if a parent is caring for the children, that parent will incur costs in providing that support, even if they have no duty to account for their expenditures in support of the child.

Critics of child support, such as father's rights groups, complain that in most US states, and the United Kingdom, there is no requirement that the child support money be used for the child.[88][89] Barring unusual circumstances, most jurisdictions do not require accountings on the request of a child support payor.[90] The custodial parent also has a duty to support the children[2][3][4][5][6][7][8] and child support payments on average are significantly less than the cost of raising a child.[91][92][93] In ten U.S. states, an accounting of child support money can be required under certain circumstances.[94]

Critics of child support suggest that support orders carry the threat of state violence to give the resident parent a degree of financial control over the non-resident parent, and even that the enforcement of child support can be considered domestic violence or abuse. No jurisdiction has accepted that argument, and a parent ordered to pay child support will not face any legal consequence if payments are made as ordered by the court.

Some parents argue that they should be permitted to directly provide for their children, with those provisions being credited against child support or taking the place of any payment to the other parent. Some argue that being ordered to pay child support reduces their ability to directly provide for their children. However, courts uniformly recognize that the custodial parent will incur expenses for the care of children that a non-custodial parent might prefer not to pay, and that giving the non-custodial parent direct control over how child support is used would in many cases result in abusive or controlling behavior by the child support payor.

Some child support laws and formulas do not adequately reflect the extent to which the child support payor supports the children, and the expenses the payor incurs in caring for the children. For example, in the UK no account taken of the "resident" parents income and a "non-resident" parent caring for the children 174 nights a year have to pay the other parent (4/7) 57% of the maintenance they would have paid if they had provided no care.[95] Thus, a "non-resident" parent may have virtually equal costs, needing to house, clothe and transport the children, but may be obligated to pay up to 17% (31%*4/7) of his or her income as child support. Many jurisdictions have tried to develop child support formulas and models that take into account the extent to which parents share custody, and adjust child support amounts in shared parenting arrangements in relation to the division of parenting time.

In the United States, each state receives money from the federal government to offset some of the expenses it incurs in processing paternity, spousal support and child support cases.[96] It has been argued that this creates an incentive for each state to enforce larger than necessary support orders, since doing so creates a larger financial incentive for each state. However, as a matter of law, when the federal government mandates state action it is broadly required to reimburse the state for the cost of the required action. It has also been argued that a Defendant in a child support matter cannot get a fair trial due to the fact that the Courts have a financial interest in keeping child support orders higher than necessary. However, there has never been a showing that states have created or modified their child support formulas in such a manner, nor would doing so actually increase federal reimbursements.

Child support policies have been criticized by fathers' rights advocacy groups, as well as by some feminists, who state that child support policy violates gender equality and deny reproductive choice to men.[97][98][99][100] States have claimed to have found no gender discrimination in the child support system, as child support is based upon income and custody arrangements and not on gender. As child support is for the benefit of the child, not the parent, courts are not sympathetic to the idea that a parent should be able to refuse to support a child by claiming that he would have preferred that the child not be born.

Child support guidelines and policies have also been criticized for requiring boys and men that are victims of sexual assault to pay child support to the women who sexually assaulted them.[101]

Melanie McCulley, a South Carolina attorney coined the term male abortion in 1998, suggesting that a father should be allowed to disclaim his obligations to an unborn child early in the pregnancy.[102] Proponents hold that concept begins with the premise that when an unmarried woman becomes pregnant, she has the option of abortion, adoption, or parenthood; and argues, in the context of legally recognized gender equality, that in the earliest stages of pregnancy the putative (alleged) father should have the same human rights to relinquish all future parental rights and financial responsibility—leaving the informed mother with the same three options. McCulley's male abortion concept aims to equalize the legal status of unwed men and unwed women by giving the unwed man by law the ability to 'abort' his rights in and obligations to the child. If a woman decides to keep the child the father may choose not to by severing all ties legally.

This same concept has been supported by a former president of the feminist organization National Organization for Women, attorney Karen DeCrow, who wrote that "if a woman makes a unilateral decision to bring pregnancy to term, and the biological father does not, and cannot, share in this decision, he should not be liable for 21 years of support...autonomous women making independent decisions about their lives should not expect men to finance their choice."[97]

The legal concept was tried in the case of Dubay v. Wells and was rejected by the court, since legislation in the various jurisdictions currently sets forth guidelines for when child support is owed as well as its amount. Accordingly, legislation would be required to change the law to implement McCulley's concept.