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Child support
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In family law and government policy, child support or child maintenance is the ongoing obligation for a periodic payment made directly or indirectly by a non-custodial parent to a custodial parent, caregiver or guardian, or the government, 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.
The right to child support and the responsibilities of parents to provide such support have been internationally recognized.
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In family law and government policy, child support or child maintenance is the ongoing obligation for a periodic payment made directly or indirectly by a non-custodial parent to a custodial parent, caregiver or guardian, or the government, 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.
The right to child support and the responsibilities of parents to provide such support have been internationally recognized. The 1992 United Nations Convention on the Rights of the Child, a binding convention signed by every member nation of the United Nations and formally ratified by all but two, declares that the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents. Other United Nations documents and decisions related to child support enforcement include the 1956 United Nations Convention on the Recovery Abroad of Maintenance, which was ratified by the vast majority of UN member nations.
In addition, the right to child support, as well as specific implementation and enforcement measures, has been recognized by various other international entities, including the Council of Europe, the European Union and the Hague Conference.
Within individual countries, examples of legislation pertaining to, and establishing guidelines for, the implementation and collection of child maintenance include the 1975 Family Law Act (Australia), the Child Support Act (United Kingdom) and the Maintenance and Affiliation Act (Fiji) Child support laws and obligations are known to be recognized in a vast majority of world nations, including the majority of countries in Europe, North America and Australasia, as well as many in Africa, Asia and South America.
Legal theory
Child support is based on the policy that both parents are obligated to support 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 often awarded 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. Child support may also be ordered to be paid by one parent to another when both parents are custodial parents and they share the child raising responsibilities. In rare cases, a parent with sole custody of his or her children may be ordered to pay child support to the noncustodial parent to support the children while they are in the care of that parent.
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 vs. contact
While the issues of child support and visitation or contact may be decided in the same divorce or paternity settlement, in most jurisdictions the two rights and obligations are completely separate and individually enforceable. Custodial parents may not withhold contact to "punish" a noncustodial parent for failing to pay some or all child support required. Conversely, a noncustodial parent is required to pay child support even if he or she is partially or fully denied contact with the child.
Additionally, a non-custodial parent is responsible for child support payments even if he or she does not wish to have a relationship with his or her child. Courts have maintained that a child's right to financial support from parents supersedes an adult's wish not to assume a parenting role.
While child support and contact are separate issues, in some jurisdictions, the latter may influence the former. In the United Kingdom, for example, the amount of support ordered may be reduced based on the number of nights per week the child regularly spends at the non-custodial parent's home.
Use of child support payments
All international and national child support regulations recognize that every parent has an obligation to support his or her child. Therefore, the custodial and non-custodial parents are required to share the responsibility for their child(ren)'s expenses.
Support monies collected are expected to be used for the child's expenses, including food, shelter, clothing and educational needs. They are not meant to function as "spending money" for the child. 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.
Child support orders may earmark funds for specific items for the child, such as school fees, day care or medical expenses. In some cases, non-custodial parents may pay for these items directly. For example, they may pay tuition fees directly to their child's school, rather than remitting money for the tuition to the custodial parent. Orders may also require each parent to assume a percentage of expenses for various needs. For instance, in the U.S. state of Massachusetts, custodial parents are required to pay for the first $100 of annual uninsured medical costs incurred by each child. Only then will the courts consider authorizing child-support money from a non-custodial parent to be used for said costs.
Many American universities also consider non-custodial parents to be partially responsible for paying college costs, and will consider their income in their financial aid determinations. In certain states, non-custodial parents may be ordered by the court to assist with these expenses.
In the United States, non-custodial parents may receive a medical order that requires them to add their children to their health insurance plans. In some states both parents are responsible for providing medical insurance for the child/children. If both parents possess health coverage, the child may be added to the more beneficial plan, or use one to supplement the other. Children of active or retired members of the U.S. armed forces are also eligible for health coverage as military dependents, and may be enrolled in the DEERS program at no cost to the non-custodial parent.
Accountability regulations for child support money vary by country and state. In some jurisdictions, such as Australia and custodial parents are trusted to use support payments in the best interest of the child, and thus are not required to provide details on specific purchases. In other jurisdictions, a custodial parent might legally be required to give specific details on how child support money is spent at the request of the court or the non-custodial parent. In the United States, 10 states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon, and Washington) allow courts to demand an accounting on expenses and spending from custodial parents. Additionally, Alabama courts have authorized such accounting under certain specific circumstances.
Obtaining child support
Child support laws and regulations vary around the world. Legal intervention is not mandatory: some parents have informal or voluntary agreements or arrangements that do not involve the courts, where financial child support and/or other expenses are provided by non-custodial parents to assist in supporting their child(ren).
A major impetus to collection of child support in many places is recovery of welfare expenditure. A resident or custodial parent receiving public assistance, as in the United States, is required to assign his or her right to child support to the Department of Welfare before cash assistance is received. Another common requirement of welfare benefits in some jurisdictions is that the custodial parent must pursue child support from the non-custodial parent.
Court procedures for obtaining 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 custodial parents 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.
- The custodial 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 custodial parent is receiving any sort of public assistance, these fees may be waived.
- Once the non-custodial parent is located, he or she will be visited by a local sheriff, police officer or process server and served with a court summons. The summons informs the non-custodial parent that she or he is being sued for child support. Once served, the non-custodial parent must attend a mandatory court hearing to determine if he or she is responsible for child support payments.
- 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.
- After the responsibility for child support is established and questions of paternity have been answered to the court's satisfaction, the court will order the non-custodial parent to make timely child support payments and any other provisions, such as medical orders, will be established.
Calculating Child Support
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. If the child has special needs, such as treatment for a serious illness or disability, these costs may also be taken into consideration.
Guidelines for support orders may be based on laws which require non-custodial parents 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 non-custodial parents' income, which are then modified and adjusted based on several factors. 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.
Once established, child support orders remain static unless otherwise reviewed. Custodial and non-custodial parents reserve the right to request a court review for modification (typically one year or more after the issuance of the order). For instance, if the non-custodial parent becomes unemployed or faces financial hardship, he or she may petition the court for a reduction in support payments. Conversely, if the child's expenses increase, the custodial parent may ask the court to increase payments to cover the new costs. 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 a non-custodial parent'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 have an impact on him or her financially. Likewise, a court may find that an increase in the child's expenses may have been calculated by the custodial parent and is not necessary, and therefore the support obligation of the non-custodial parent should not increase.
Distribution and payment
Child support payments are distributed in a variety of ways. In cases where a non-custodial parent is liable for specific expenses such as school tuition, he or she may pay them directly instead of through the custodial parent.
In some jurisdictions, non-custodial parents are required to remit their payments to the governing federal or state child support enforcement agency. The payments are recorded, any portion required to reimburse the government is subtracted, and then the remainder is passed on to the custodial parent, either through direct deposit or checks.
The first payee for child support depends on the current welfare status of the payee. For example, if the custodial parent 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 custodial parent. 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 custodial 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.".
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 non-custodial parents are willing to pay child support when their children directly benefit from payments.
Duration of support orders
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 to 19 or graduates from high school, whichever happens later. Some countries and states have provisions which allow support to continue past the age of majority if the child is enrolled as a full-time, degree-seeking post-secondary student.If the non-custodial parent owes back child support, he or she 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.
Compliance and enforcement issues
"Dead-beat" parents
Non-custodial parents who have developed arrears with respect to their child support obligations have been termed dead-beat parents. While "dead-beat" is a pejorative used by some government officials, by the media and by child support advocacy groups, it is not the legal term used to describe such parents. Child support agencies typically describe clients as being in compliance, not in compliance or criminally non-compliant. Compliance is judged by the paying party's performance in meeting the terms of the legal child support court order.
Enforcement
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. 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.
One focus of Article 27 of the Declaration on 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. 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 Hague Conference's 1973 Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations and the 1956 United Nations Convention on the Recovery Abroad of Maintenance.
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) and those of Canada, Australia and New Zealand, the United States and the European Union.
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. In the United States, noncompliant parents who are more than $2500 in arrears may be denied passports under the Passport Denial Program. Noncompliance may also be treated as a criminal offense, and may result in prison sentences, fines and property seizure.
Child support laws in specific jurisdictions
For information on child support policies in specific countries, including Australia, New Zealand, the United Kingdom and the United States, please see Child support by country.
Criticism of child support policies
Current child support guidelines and policies have been criticized by certain groups. For more information and rationale, see the main articles.
See also
External links
- - includes calculators and guides for separated parents
- - child support enforcement
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