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Child support is an emotional subject. Parents who are supposed to receive it on behalf of their children often do not. Parents who are supposed to pay it often cannot, or choose not to for a variety of reasons that are not legally recognized. It is the children who suffer the most when child support levels are inadequate or obligations are not met. Therefore, the trend in all states is to increase child support levels and the ways child support obligations can be enforced.
1. How long must parents support their children?
Biological parents and adoptive parents must support their children until:
- the children reach the age of majority (and sometimes longer if the children have special needs)
- the children go on active military duty, or
- the parents' rights and responsibilities are terminated (such as when a child is adopted).
Parents are not required to support children who have been declared emancipated by a court. Emancipation can occur when a minor has demonstrated freedom from parental control or support and an ability to be self-supporting.
2. How are child support obligations affected by a divorce?
When one parent is awarded sole custody in a divorce, the other parent typically is required to fulfill his or her child support obligation by making payments to the custodial parent. The custodial parent, however, meets his or her support obligation through the custody itself. When parents are awarded joint physical custody in a divorce, the support obligation of each is often based on the ratio of each parent's income to their combined incomes, and the percentage of time the child spends with each parent.
3. Are fathers who never married the mother still required to pay child support?
The short answer to this question is yes. When a mother is not married, however, it's not always clear who the father is. An "acknowledged father" is any biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. Acknowledged fathers are required to pay child support.
Additionally, a man who never married may be presumed to be the father of a child if he welcomes the child into his home and openly holds the child out as his own. In some states, the presumption of paternity is considered conclusive, which means it cannot be disproved, even with contradictory blood tests.
4. Do unmarried fathers have to pay child support even if none has been ordered by a court?
Yes. The obligation to pay child support does not depend on marriage or a court order. Where most unmarried fathers encounter this principle is when the mother seeks public assistance. Sooner or later the welfare department will pursue the father for reimbursement based on his support obligation. Sometimes this happens many years later, and the father is required to pay thousands of dollars in back support that he never knew he owed because there was no court order.
5. Is a stepfather obligated to support the children of the woman to whom he is married?
No, unless he legally adopts the children.
6. What factors are used to calculate child support?
Under the federal Child Support Enforcement Act of 1984, each state must develop guidelines to calculate a range of child support to be paid, based on the parents' incomes and expenses. These guidelines vary considerably from state to state, which means that in virtually identical situations the child support ordered in one state may be far more or less than that ordered in another state. Most states allow their judges considerable leeway in setting the actual amount, as long as the general state guidelines are followed. A few states, including California, do not trust their judges to be consistent and therefore impose very strict guidelines that leave the judges very little latitude.
Regardless of how much latitude judges are given, the guidelines in effect in most states specify factors which must be considered in determining who pays child support, and how much. These factors usually include:
- the needs of the child - including health insurance, educational needs, day care and special needs
- the needs of the custodial parent
- the paying parent's ability to pay, and
- the standard of living of the child before divorce.
7. Can my child support payments be based on a my ability to earn rather than on my actual income?
In most states, the judge is authorized to examine a parent's ability to earn as well as what he or she is actually earning, and order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person's ability to earn, but are not conclusive where there is evidence that a person could earn more if she chose to do so. For example, assume a parent with an obligation to pay child support leaves his current job and enrolls in medical or law school, takes a job with lower pay but good potential for higher pay in the future, or takes a lower paying job that provides better job satisfaction. In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children's current needs take priority over the parent's career plans and desires.
8. What happens I fall behind on my child support payments?
Each installment of court-ordered child support is to be paid according to the date set out in the order. When a person does not comply with the order, the overdue payments are called arrearages or arrears. Judges have become very strict about enforcing child support orders and collecting arrearages. While the person with arrears can ask a judge for a downward modification of future payments, the judge will usually insist that the arrearage be paid in full, either immediately or in installments. In fact, judges in most states are prohibited by law from retroactively modifying a child support obligation. Assume, for example, that Joe has a child support obligation of $300 per month. Joe is laid off of his job, and six months pass before he finds another one with comparable pay. Although Joe could seek a temporary decrease on the grounds of diminished income, he lets the matter slide and fails to pay any support during the six-month period. Joe's ex-wife later brings Joe into court to collect the $1,800 arrearage; Joe cannot obtain a retroactive ruling excusing him from making the earlier payments.
9. My ex-spouse is refusing to pay court ordered child support. How can I see to it that the order is enforced?
Under the Child Support Enforcement Act of 1984, the district attorneys
(or state's attorneys) of every state must help you collect the child support owed by your ex. Sometimes this means that the D.A. will serve your ex with papers requiring him to meet with the D.A. and arrange a payment schedule, and telling him that if he refuses to meet or pay, he could go to jail. If your ex has moved out of state, you or the D.A. can use legal procedures to locate him and seek payment. Federal and state parent locator services can also assist in locating missing parents.
Federal laws permit the interception of tax refunds to enforce child support orders. Other methods of enforcement include wage attachments, seizing property, suspending the business license of a payer who is behind on child support or - in some states - going after the payer's driver's license. Your state's D.A. may employ any one of these methods in an attempt to help you collect from your ex.
If you and your ex live in different states, you may use the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) to seek payment. Under that law, the court in the state where you live contacts a court in your ex-spouse's state, which in turn requires him to pay. This procedure will be provided to you free of charge. Unfortunately, however, it often falls short of its stated goals due to the complexity of the process and the low priority frequently assigned to these cases by the courts and law enforcement officers which are involved.
As a last resort, the court that has issued the child support order can hold your ex in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term. This contempt power is exercised sparingly in most states, primarily because most judges would rather keep the payer out of jail where he has a chance of earning the income necessary to pay the support.
10. I think our existing child support order is unfair. How can I change it?
You and your former spouse may agree to modify the child support terms, but even an agreed-upon modification for child support must be approved by a judge to be legally enforceable.
If you and your ex can't agree on a change, you must request the court to hold a hearing in which each of you can argue the pros and cons of the proposed modification. As a general rule, the court will not modify an existing order unless the parent proposing the modification can show changed circumstances. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that frequently support temporary modification orders are:
- a child's medical emergency
- the payer's temporary inability to pay (for instance, because of illness or an additional financial burden such as a medical emergency or job loss), or
- temporary economic or medical hardship on the part of the parent to whom child support is owed.
A permanent modification may be awarded under one of the following circumstances:
- either parent receives additional income from remarriage
- changes in the child support laws
- job change of either parent
- cost of living increase
- disability of either parent, or
- needs of the child.
A permanent modification of a child support order will remain in effect until support is no longer required or the order is modified again at a later time.
11. Do I have to pay child support if my ex keeps me away from my kids?
Yes. Child support should not be confused with custody and visitation. Every parent has an obligation to support his or her children. With one narrow exception, no state allows a parent to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the noncustodial parent's duty to pay child support may be considered temporarily suspended.
No matter what the circumstances, if you believe that your visitation rights are being interfered with, the appropriate remedy is to go back to court to have your rights enforced rather than stop making support payments.
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