Tuesday, April 5, 2011

Mother lives on Child Support - Court knows it

Often we hear the same cries of custodial and non custodial parents; I don't get enough child support to pay the bills and I can't pay my bills because I pay too much child support.

At the outset I first note that there is an assumption, within policy, that it will cost 50% more to raise a child in a fractured family. Additionally both parents are obligated to provide support.

Subsequent to this and inclusive in the child support calculations is an allocation of "fixed costs". For example; If a one bedroom apartment and utilities is $600 per month that is the fixed costs of the apartment. If an upgrade to a $750 per month two bedroom is made because of the need for a child to have his own room then the child's share is $150 [$750 - fixed cost of $600].

The child support calculator does not ration costs based upon this logical principle, rather the calculator uses a share based model. The child represents a one half share of the people in the apartment and is thus apportioned a cost of $375 of the rent and utilities rather than $150.

In 1989, the Indiana Supreme Court adopted the Child Support Guidelines to facilitate adequate support awards for children, to make awards more equitable by ensuring consistent treatment of persons in similar circumstances, and to improve the efficiency of the process of determining support. Ind. Child Support Guideline 1 & Commentary; Garrod v. Garrod, 655 N.E.2d 336, 338 (Ind. 1995). There is a “rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” Ind. Child Support Rule 2*. See Matula v. Bower, 634 N.E.2d 537, 539 (Ind. Ct. App. 1994), trans. denied.

From what we already know about how the calculation is formulated it is not based upon a logical application of the actual costs of supporting a child. In fact, often times the amount ordered to be paid by one parents exceeds the total expenses for the child. If this is true then that presumption should be easy to overcome. Yet, most often the courts simply order the amount arrived at through the application of the Indiana child support calculator. This may be based upon the prior rulings upholding that the Guidelines provide a presumption of correctness.

Although a trial court does have discretion on issues pertaining to child support, its decision is nonetheless governed by the Indiana Child Support Rules and Guidelines, which provide a rebuttable presumption that the correct amount of child support results from applying the guidelines. D.W. v. L.W., 917 N.E.2d 725, 727 (Ind. Ct. App. 2009)

It may still be inappropriate though for a court to use an amount arrived at through application of the Guidelines. Trial courts must avoid the pitfall of blind adherence to the computation for support without giving careful consideration to the variables which require a flexible application of the guidelines. Talarico v. Smithson (1991), Ind. App., 579 N.E.2d 671, 673.

There may be times where a deviation from the Guidelines is appropriate based upon the actual support that a parent provides. A parent's nonmonetary contribution to a child's care may be counted as support. M.W. v. A.W. (In re N.W.), 933 N.E.2d 909, 914 (Ind. Ct. App. 2010). Absent a deviation the child would then be entitled to a higher standard of living. Quite possibly greater than that of the custodial parent.

This is because child support is not paid to the custodial parent. A custodial parent merely acts as the executor of the child support trust account. Just as any executor that parent is not entitled to transfer those funds to his or her personal use. The executor /parent has a fiduciary responsibility to the child in managing the child's finances for his or her personal support. [T]he right to child support lies exclusively with the child, and a parent merely holds child support payments in trust for the benefit of the child. Hamiter v. Torrence, 717 N.E.2d 1249, 1255 (Ind. Ct. App. 1999).

Technically then it should not be possible for a parent to live solely off of child support. Yet we know it happens. It is actually the intent of the Indiana Child Support Guidelines that child support payments be used in lieu of spousal support or that the custodial parent is acting in the position of and being compensated as a nanny.

This is one of the reasons that when I was going through my divorce that I never wanted child support payments. I was wanting and willing to provide support for my child because I had a desire to provide for him not that I was getting paid to.

In the case of Ro. C and Ry. C. decided 31 March 2011 Mother appealed the denial of her request to relocate the child from Indiana to New York.

In finding that Mother did not have a legitimate reason to relocate the Indiana Court of Appeals found that there were no findings supporting a relocation but noted the following "Finding" from the trial court;
3. The evidence of the trial presented [sic] proved [Mother] has been unemployed since the date of dissolution and up until her filing of [the] Petition to Relocate to Western New York to work in a company where her [m]other is the Vice-President and that [Mother] never obtained employment and is living on the current child support that [Father] pays. [Mother] seeks to move to Stockton, New York, and claims to have been accepted at Jamestown [Community College] to study nursing. She has testified that she is eligible for a Pell Grant and Obama Grant and can receive nursing school free books and tuition in the fall. [Mother] claims she will work for $12 per hour on a part-time basis in Stockton, New York.

The panel concluded that 3 was not a "finding". I am not going to get into the legal basis for the denial of the relocation of the child but, instead, want to focus on the highlighted portion of the "finding" - [Mother] never obtained employment and is living on the current child support that [Father] pays.

This clearly demonstrates that the Court is aware that Mother is stealing money from the "trust account" of the child and using for her own personal gain. Does the Court make a sua sponte modification of the child support payment order? No. Will Father be able to sue Mother and recover the stolen funds for the child? No. Will the prosecutor charge Mother with conversion or some other crime for stealing this money from the child? No. Will a court order be put into place requiring Mother to provide an accounting of how the child's trust money is spent? No. Do courts in every jurisdiction know that child support money is being stolen from children and being spent by the fiduciaries for their own personal gain? Yes.

So the necessary question becomes - Why aren't policy makers in Indiana requiring that fiduciaries of child support payment monies e an accounting of how the child's money is spent?

The simple answer is because the system wasn't designed to provide support for the child. Instead it was designed to transfer wealth and increase spending.

Some of the largest consumer corporations in American lobby heavily at the federal level through various organizations to ensure that maximum child support payment orders are issued and enforced. The greater the amount of money transfered from an earner to a spender without restriction then the more likely it is that the money will end up in the pockets of Corporate America.

*Support Rule 2. Presumption
In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.

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