Thursday, February 26, 2009

Minnesota Shared Parenting Report - Part VI

Fiscal Impact of Adopting a Joint Physical Child Custody Presumption

Today's presentation brings us to what will be the most relevant consideration to whether presumptive joint physical custody has any chance of becoming law. Those of us who advocate for and love children will find the answer to what is most relevant to be easily answered; that is, what is best for the children and their parents. When we enter the realm of government policy we will find that what we consider relevant gets pushed far down the ladder and something else will be paramount. Specifically, that issue will become what will be the financial impact. A committee was appointed to compile information concerning potential financial impacts of adopting a joint physical custody presumption.

The committee report was prepared by Melissa Froehle, J.D., Jill Olson, J.D., and James Street, J.D. It specifically addresses fiscal impacts for families, the Department of Human Resources, and Minnesota Courts. There are two very important findings in this section of the report. One is that joint physical custody of children is in their best interest and the other is that it will cost taxpayers more money. Legislators will be faced with making the decision or what is in children's best interest of what will cost taxpayers more money.

The report opens by stating that many of the financial impacts would be lessened if the status quo was maintained, that is, if a presumption of joint physical custody avoids an exact division of parenting time with each parent.

The first scare tactic used was to say that the presumption has the potential of decreasing child support awards to families and children potentially in need. If child support is calculated using a presumption of equal or nearly equal time, both parties are given a significant credit. This credit is based on parenting time they are presumed to be exercising and expenses they are presumed to be incurring while exercising that parenting time, thus reducing the amount of child support paid by the obligor. Although not explicitly stated what this report is saying is that one parent who would have received a high support award will no longer be receiving that and will have to start contributing to paying for the care and support of the children as an equal partner rather than a lottery winner.

In general, the current income shares child support model presumes that regardless of the custodial label, unless the parties have equal time, equal incomes and are sharing expenses equally, there will be an award of child support from one party to the other. The guidelines are applied with the purported goal of getting the same proportion of parental income to the child that he/she would have received if his/her parents lived together. However, as applied, the child support guidelines have never closely sought to achieve hat goal but have instead been used to create a financial windfall for the custodial parent. Opponents of ensuring children their right to access to both parents state that this goal may not be attained and necessary support may not get to children if a presumption of joint custody is created and defined in a manner that is not compatible with the current guidelines. Specifically, they want one parent to still be labeled a NCP and forced to pay support.

A parent who gets more parenting time due to implementation of a presumption of joint physical custody could have increased costs such as food and transportation, while the parent who has less parenting time due to a presumption of joint physical custody could have decreased costs for food and transportation. This would be offset by the NCP paying less in support and the CP having less to pay in expenses. If child support payments truly reflect the cost of providing support to a child then neither parent would notice a difference in their income and expenses applied to supporting the children.

The eligibility for public benefits would need to be adjusted for the parenting time situations in equal joint custody. In general, the benefits system is not set-up to accommodate both parents in low-income families where the parents live apart but each is significantly involved in parenting the child and providing a home for the child. Currently the parent that applies first for public assistance is the eligible parent. The system may need to be changed to where benefits are pro rated to the amount of time a parent has custody. That is, a parent with the child 50% of the time would receive 50% of the eligible food stamps while the other parent would get the other 50% instead of whomever applies first getting 100%. The same could be done for public benefits such as housing, child care and Had Start. Similar adjustments may need to be made for income tax deductions and the Earned Income Tax Credit (EITC). This could easily be accomplished through assignment years such as the mother gets credits on odd numbered years and father gets even numbered years.

The report states that "Increased costs to the Department of Human Services is a major concern" but that the emotional well-being of children is not a major concern. To be eligible for public assistance recipients must assign their right to child support payments to the State which provides the assistance. The State of Minnesota, as Indiana and many other states do, opposes a presumption of equal Shared Parenting. In those instances in which there is a presumption of joint physical custody, that requires the parties to share parenting time equally, the amount of child support ordered in these cases would drop dramatically. Because receipt of child support results in a dollar for dollar offset in public assistance payments, lower child support payments will result in higher assistance payments from the State, and a heavier burden on taxpayers.

The report also indicates that the state would see a reduced rate of public assistance arrears collection owed to the State. When establishing a child support order on behalf of a public assistance recipient, the State, through the County and County Attorney, can also seek reimbursement for periods of time public assistance was furnished by the State for the benefit of a child. The report claims that a parent, not both parents, of a child is liable for the amount of public assistance furnished to and for the benefit of the child, which the parent has the ability to pay, for two years immediately proceeding the commencement of the action.

Under current Minnesota law the Recognition of Parentage does not give any custody or parenting time rights to the father as the rights of the child guaranteed through the United States Constitution require. Therefore, the custodial mother has property rights to the child and becomes sole legal and sole physical custodian until a court orders otherwise. Thus, currently, in such cases, an order is issued and the custodial mother receives a child support award under the guidelines as a sole physical custodian.

However, no such mandate is applied to married parents. Thus, the State , in order to get reimbursed for public funds expended on welfare assistance, seeks to completely separate the child from one or his or her parents so that parent can be ordered to pay the maximum child support allowable which the State can then intercept and keep. The report cautions legislators that if they allow a presumption of equal Shared Parenting then child support orders will be lower and the rate of collection will also be lower as the State’s collection is limited to 20% of a smaller amount. This will presumably result in a cash flow issue for the State.

The report cautions that the courts may face a challenge by the strategy I have developed and have been pushing parents to use as a tool to achieve the rights for their children that they deserve. The Report specifically states that, as is in my plan, the Courts would have an increased burden from unrepresented parties who may dispute custody if a presumption is enacted. With significant numbers of unrepresented parents and decreasing court resources available to help set a parenting time schedule, the judge may need to step in and use hearing time to assist the parties in presenting evidence or testimony to accomplish a schedule. As a result, an increase of custody cases in district court, coupled with significant numbers of unrepresented parties and decreasing court resources, could result in increased costs to the court system.

This is a very important observation and admission in the Report. I am currently in school seeking a law degree as are other members of our organization. It is our goal to teach law to the masses of parents whose children are being denied access to their parents. Once we have enough litigators organized in a common plan we can control the courts. In Boone County Indiana we have already managed to get criminal cases dismissed by demanding jury trials and filling the courts with other civil litigation. The Court's simply do not have the resources. This is how we will win this battle.

The Report concludes by stating that there is no reason to believe that a Joint Physical Custody presumption would create more thoughtful orders. Without specific intervention by the court, or more available court resources, we could expect orders to include such phrases as “joint physical custody as the parties agree.” The consequences to children and parties of such vague language when it relates to custody arrangements are more significant than when it relates to parenting time, and more likely will result with increased motions to court to sort it out later.

Therefore, any presumption of Shared Parenting law needs to clearly define what that presumption is. Not forcing judges to adhere to the due process rights of all parties will result in increased litigation and court costs as the Report has indicated. We have seen from this section of the Report that if a presumption of Shared Parenting is passed then more children will be in equal joint custody living arrangements based upon their best interest. But also, that the State will not be able to intercept and retain child support payments in as great of an amount as has been done in the past. A very important admission that was made in the Report is that self-represented litigants can overburden the courts by paperstorm. That is the filing of continuous motions and seeking hearings on them.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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