11 November 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
As the time approaches for the Domestic Relations Committee [DRC] of the Indiana Judicial Center to begin the process of receiving public input concerning changes to the Indiana Child Support Guidelines [ICSG] I want to provide you with some background information. Today I begin with the guidelines promulgated by the federal government for the various states to use in their child support scheme. As with most federal programs the Title IV-D child support scheme is not a mandate. Thus, the states are not required to adopt the federal procedures. This comes with the usual caveat though – the state will be deprived of tax monies paid to the federal government by its citizens unless the state complies with the feds “suggestion”. It's the equivalent of withholding food from your child until he voluntarily accepts your rules.
Any suggestion that contravenes the guidelines set forth by the federal government has little likelihood of being adopted by the DRC. I will attempt to explain the meaning and effect of the federal guidelines to better help you understand the limits of modifying Indiana's current child support scheme. I imagine that as you read this you are likely doing so through the lens of your own child support case whether you be the custodial or non-custodial parent. What I find from applicants for my services or those seeking to have me change Indiana's child support payment scheme is that the amount set is reasonable, reflects their ability to pay or actually gets paid. Much of what is revealed in these anecdotes is not a fundamental flaw with the scheme itself but in the manner in which it is applied. This, I believe, is due primarily to a failure by judicial officers and practitioners to fully understand their obligation to devise the “correct amount of child support to be awarded.” For that reason I will attempt here to explain the existing federal and state statutes, and guidelines used in determining that “correct amount of child support to be awarded.” This is so your time expended on this issue is not a futile application where it will have no effect or need not be applied.
The United States Code at 42 § 667 State Guidelines for Child Support Awards is as follows;
(a) Establishment of guidelines; method
Each State, as a condition for having its State plan approved under this part, must establish guidelines for child support award amounts within the State. The guidelines may be established by law or by judicial or administrative action, and shall be reviewed at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts.
(b) Availability of guidelines; rebuttable presumption
(1) The guidelines established pursuant to subsection (a) of this section shall be made available to all judges and other officials who have the power to determine child support awards within such State.
(2) There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
(c) Technical assistance to States; State to furnish Secretary with copies
The Secretary shall furnish technical assistance to the States for establishing the guidelines, and each State shall furnish the Secretary with copies of its guidelines.
The federal statutory guidelines is more explicitly set forth under the Code of Federal Regulations at 45 § 302.56 Guidelines for Setting Child Support Awards is as follows;
(a) Effective October 13, 1989, as a condition of approval of its State plan, the State shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State.
(b) The State shall have procedures for making the guidelines available to all persons in the State whose duty it is to set child support award amounts.
(c) The guidelines established under paragraph (a) of this section must at a minimum:
(1) Take into consideration all earnings and income of the noncustodial parent;
(2) Be based on specific descriptive and numeric criteria and result in a computation of the support obligation; and
(3) Address how the parents will provide for the child(ren)'s health care needs through health insurance coverage and/or through cash medical support in accordance with §303.31 of this chapter.
(d) The State must include a copy of the guidelines in its State plan.
(e) The State must review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts.
(f) Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.
(g) A written finding or specific finding on the record of a judicial or administrative proceeding for the award of child support that the application of the guidelines established under paragraph (a) of this section would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, as determined under criteria established by the State. Such criteria must take into consideration the best interest of the child. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include justification of why the order varies from the guidelines.
(h) As part of the review of a State's guidelines required under paragraph (e) of this section, a State must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from, the guidelines. The analysis of the data must be used in the State's review of the guidelines to ensure that deviations from the guidelines are limited.
Section (c) of CFR 45 § 302.56 requires that in calculating the support amount a court must at a minimum “take into consideration all earnings and income” of the NCP. The criteria established by Indiana found at IC 31-16-6-1 is a bit broader. It reads;
[T]he court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:
(1) the financial resources of the custodial parent;
(2) the standard of living the child would have enjoyed if:
(A) the marriage had not been dissolved;
(B) the separation had not been ordered; or
(C) in the case of a paternity action, the parents had been married and remained married to each other;
(3) the physical or mental condition of the child and the child's educational needs; and
(4) the financial resources and needs of the noncustodial parent
This adds that the “financial resources” of both parents should be considered as well as the “needs” of the NCP. This is an area that is often neglected in the judicial process. It requires a full evidentiary hearing and considered judgment on the part of the lawyers and judge involved. Here is the commentary to the ICSG for determining weekly gross income.
Determination of Weekly Gross Income.
Weekly Gross Income is the starting point in determining the child support obligation, and it must be calculated for both parents. If one or both parents have no income, then potential income may be calculated and used as Weekly Gross Income. Likewise, imputed income may be substituted for, or added to, other income in arriving at Weekly Gross Income. It includes such items as free housing, a company car that may be used for personal travel, and reimbursed meals or other items received by the obligor that reduce his or her living expenses.
The Child Support Obligation Worksheet does not include space to calculate Weekly Gross Income. It must be calculated separately and the result entered on the worksheet.
In calculating Weekly Gross Income, it is helpful to begin with total income from all sources. This figure may not be the same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means-tested public assistance programs (those based on income) are excluded from the computation of Weekly Gross Income, but other government payments, such as Social Security benefits and veterans pensions, should be included. However, survivor benefits paid to or for the benefit of their children are not included. In cases where a custodial parent is receiving, as a representative payee for a prior born child, Social Security survivor benefits because of the death of the prior born child’s parent, the court should carefully consider Line 1 C of the basic child support obligation worksheet, Legal Duty of Support for Prior-born Children. Because the deceased parent’s contribution for the support of the prior born child is being partially paid by Social Security survivor benefits that are excluded from Weekly Gross Income, the court should not enter, on Line 1C, an amount that represents 100% of the cost of support for the prior born child. The income of the spouses of the parties is not included in Weekly Gross Income
Here I believe that there is room for revision, especially in stressing to practitioners the overarching requirements that the amount of the support award be consistent with “the best interest of the child” while concurrently considering the “needs of the noncustodial parent”. Section (c) goes on to further say that support should be “based on specific descriptive and numeric criteria” In essence this is the requirement for the child support obligation worksheet [CSOW]. This is an area that can be modified to a great extent to effectuate the dual goal of ensuring “the best interest of the child” and that the “needs of the noncustodial parent” are still met. As you can see from the preceding commentary to the ICSG there are various restrictions or inclusion for determining allocation of financial resources to children that are not treated in the same manner by an intact family.
Section (f) of CFR 45 § 302.56 requires “that there shall be a rebuttable presumption” that the amount of the child support award “would result from the application of the guidelines”. Key here is that it is “rebuttable” which again requires greater effort on behalf of the attorney and may necessitate a full evidentiary hearing. There are numerous ways to do this of which nearly all are case sensitive. As for the ICSG, again this is an area in which practitioners and judicial officers should be encouraged to look at case specifics, not just the amount calculated using the CSOW. There may need to be more information elicited by the CSOW.
Section (g) of CFR 45 § 302.56 requires that the judicial officer make a “written finding or specific finding on the record” that the application of the guidelines “would be unjust or inappropriate” to rebut the presumption as “determined under criteria established by the State.” What this says is that the guideline amount is not mandated but that effort must be put forth to establish and justify a deviation from that amount. Thus, it can be done although the lazy or hurried participants will resist such attempts. One situation in which deviation may be necessary is when parental income is not proportional to lifestyle. Most often this is seen in imputing income where a parent's income has declined and is no longer sufficient to maintain the standard of living the child, although that is not required. The court is to “consider” the “standard of living the child would have enjoyed” if the parents were residing together. The opposite of reduced income can also be true though – a parent's income is higher than that which was needed to maintain the child's standard of living or would have been available as disposable income. An example would be when a parent has income in a stock account that is reinvested. Dividends, interest or other capital distributions that were never withdrawn, while being taxable income, should not be counted as income for the purpose of calculating a child support payment. Likewise, business income rarely reflects disposable income to the owner. This is common in retail or real estate businesses and to a lesser extent services. While a business may produce an income [X] for the parent this is often offset by common business practices. Such would be if the inventory has been expanded by $10,000 each year. That parent's income for child support payment purposes would then be X minus $10,000 rather than X.
While there is room for substantial improvement in Indiana's child support payment scheme some of those that seem obvious are going to be either case specific or presumptively precluded by federal statute and regulation. However, through diligent research, logical argument and the willingness of all participants to undertake the effort to accomplish the goal of a more just and manageable child support payment system I believe it can be done.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Monday, November 11, 2013
Federal Statute Considerations for 2014 Indiana Child Support Guidelines Amendments
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