Sunday, October 4, 2009

Indiana Child Support Guidelines Amendments - Part IV, Parenting Time Credit

2015 Indiana Child Support Guidelines
review scheduled for public comment

This is my fourth posting in a series that I am doing on the Amendments to the Indiana Child Support Guidelines that will take effect 01 January 2010. Part III briefly described the definition of weekly gross income, adjustments and minimum support. Part IV details the following;

Part IV - Changes applicable to Parenting Time
A. Parenting Time Credit
B. Equal parenting time
C. Retroactive modification

A. Parenting Time Credit

It never seemed appropriate that when a noncustodial parent has a bedroom for the child, provides education materials, and also has clothing items and toys equal to those at the custodial parent's house that it is not acknowledged by the court in a credit towards support payments. The Guidelines had previously provided that "[t]he court may grant the noncustodial parent a credit toward his or her weekly child support obligation" for these duplicated expenses.

Such credit was to be applied based upon the child support calculation worksheet. They way I have understood this is that a noncustodial parent may argue that X amount of dollars are spent on these duplicated expenses. If he or she is the earner of 60% of the income then that parent would receive a credit of 40% of those duplicated expenses.

The Amendments provide for one small but substantial change. The word "should" has been added. This is one degree shy of "shall" which is a mandate. This means it still must be demanded. You or your attorney must be aware of this before proceeding in a support modification hearing.

A petitioner seeking modification of a child support order must still meet either the “substantial and continuing” change test or the twenty percent change test to be successful. But the petitioner may apply the parenting time credit to attempt to fulfill either test.  It is not a foregone conclusion that in every case, or even in most cases, that the application of the parenting time credit would result in the fulfillment of one of the applicable tests. Petitioners seeking a modification of a child support order must still meet one of the requisite statutory tests, but they may apply the parenting time credit in an attempt to do so. see Naville v. Naville, 818 NE2d 552, 555 (Ind. Ct. App. 2004).

The modification statute provides in part:
(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

The Guideline Amendments do not in and of themselves create a changed circumstance. However, they may create a change that meets the statutory requirement. You may find attorneys that will tell you that you may not seek a modification unless your circumstances have changed. Do not be discouraged at this point. I can help either you or your attorney understand how these changes affect a petition to modify and what case law will support your petition.

B. Equal parenting time

The first thing I hear from parents who are ordered to pay support when parenting time is shared equally or nearly is a scenario like this. "I don't know why I have to pay support. I have the children half the time, I have a house for them too. I buy clothing. I take them to just as many games. They still eat when they are at my house."

The Guidelines attempt to apportion support based upon income. That is if one parent earns 60% of the total income that parent should provide for the children 60% of the time. If it is only 50% then that parent must pay 5% to the other parent, the difference between the amount earned and the amount of time support is provided.

However, the calculation of support is not that simple. There are certain controlled expenses for which there must be an accounting. Costs such as school books and supplies, health insurance deductibles and other one time fees.

The Guidelines establish equal parenting time as anything where each parent has at least 181 overnights. The court must then determine who will be the parent who pays the controlled expenses. In making that determination the court should consider which parent has primarily been the one who has taken the children to medical appointments, attended or taken the child to school functions, who has traditionally paid those expenses and who has the ability to pay them in the future.

Once the determination of which parent who will pay the controlled expenses has been determined then it is a rather easy application of the guidelines to determine a support payment. It could now be determined that the custodial parent who pays those controlled expenses also pays support to the noncustodial parent.

The Guidelines previously did not provide that a low income noncustodial parent could receive payments to help with support of their children while the noncustodial parent provided care for the children.

C. Retroactive modification

The Guidelines now provide some relief from the child support obligation retroactively. The federal Bradly Amendment forbids judges from modifying support retroactively because of a change in circumstances. This is a difficulty encountered by parents who have been incarcerated or lost a job and never bothered to seek a modification. I cannot stress the importance enough of seeking a modification as soon as a major change happens.

The Indiana Court of Appeals has consistently ruled that support can be modified back to the date of the petition to modify. "It is within a trial court’s discretion to make a modification of child support relate back to the date the petition to modify is filed, or any date thereafter." Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006)

The Amendments do allow for two exceptions to the retroactive prohibition. One is when the parents have agreed to and carried out an alternative method of payment that has substantially complied with the spirit of the decree. The other is when the obliged parent takes the child into the obliged parent's home and assumes custody and provides the care for a period of time that it can be determined that a changed of custody has occurred.

You may find judges and attorneys telling you that support cannot be modified until there is a hearing and an order issued and the modification takes place from that day forward. I am currently assisting a parent who is going to seek a retroactive modification based upon one of the two described circumstances. He had already been told by an attorney "You can't do anything about what you were already ordered to pay" which simply shows the ignorance of some attorneys.

For those parties who have agreed to their child support arrangement their is still opportunity for a modification to be determined by the court. Do not feel that you are forever bound by a mutual agreement. The court In re Marriage of Kraft, 868 N.E.2d 1181, 1188 (In. Ct App. 2007) stated “In other words, the fact that a child support order has been entered pursuant to the terms of a settlement agreement, even where, as here, it is intended as forever determinative by the parties, is of no consequence to the question whether the order should subsequently be modified.”.

If you feel that your child support payments are too high then don't wait any longer to seek a modification. It may be best for you to wait until after the Guideline Amendments go into effect or to file the petition now. Please contact me if you would like an assessment of your case and for help in selecting an attorney.


Indiana Custodial Rights Advocates

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

1 comment:

Anonymous said...

I don't like the idea, I don't know I think that is not healthy to a child grow in this way, you know one day with mom other with dad, some parents consult viagra online before take a decision like that.