Stuart Showalter Law Blog: Some popular Child Support and Child Custody reform proposals and why they are unlikely to be adopted

About once a week I am contacted by someone eager to change the Indiana Child Support and Child Custody laws. This past week I received one that was well structured and had been given considerable thought. Here I present it as sent to me, with some slight editing for clarity, and then provide my responses to each enumerated issue raised. A number [1] will be entered after the issue and then followed by my responses 1] in the next paragraph. Notes [en1] on my statements can be found at the end.

I feel very strongly that laws when it comes to child support and custody should be changed. They are very unfair. . . I will quickly explain my ideas to the Indiana Child Support Guidelines and the Indiana Custody Guidelines.

I will just reiterate what I have so often said; fair is a place with stinky animals, fattening foods, and amusement rides. Fair is not found in courts although there should be an opportunity to be heard [en1] and equitable treatment.[en2]

The Federal and State guidelines are allowed to be so biased towards fathers when computing a child support amount.[1] A lot of men are forced to lose their homes, vehicles, jobs and even children because they cannot afford to pay the amount of child support ordered; and I say fathers and men because courts less often order a high child support amount for non-custodial mothers. I believe the Federal and State guidelines for figuring child support should be changed![2] The Department of Human Services subtracts mandatory monthly deductions before they figure a welfare benefit, so why doesn’t child support subtract standardized monthly deductions before figuring child support?[3] Instead of figuring child support from Gross income, it should be figured by net income after subtracting child support already court ordered and standardized monthly deductions which would allow a single person to be able to afford a standard of living at poverty level.[4] [The writer included a detailed list of regular expenses -- including long distance transportation for parenting time -- and calculations of net income after those expenses and child support] By allowing for standardized monthly deductions all non-custodial parents could afford to at least enjoy a standard of living at poverty level, possibly have some money left over to see their children and do things with them, pay child support as ordered and avoid jail due to unfair child support orders. It would force more mothers to help provide for their own children instead of living off child support payments.[5] This idea truly has the best interest of all custodial and non-custodial parents and their children in mind.

1] - The Indiana Child Support Guidelines make no reference to gender when calculating support. The calculation using the ICSG is presumed to be the correct amount.[en3]
2] - The Domestic Relations Committee of the Indiana Judicial Conference is currently reviewing the ICSG. Public comment will be taken on the proposed changes in June. I have written more about that here.
3] - Indiana uses an income shares model and a formula, including parenting time considerations, to determine the share that each parent is expected to contribute to the child’s support. Because this formula considers the amount of gross income that families presumptively spend on children individualized deductions on the worksheet would be duplicative. The Guidelines are designed to help trial courts fashion child support awards that provide children, as closely as possible, with the same standard of living they would have enjoyed had the marriage not been dissolved.[en4]
4] - The Indiana Judiciary recognizes that child support should not be a means by which to deprive an obligor a level of income on which to subside.[en5]
5] - The support calculations are presumed to be valid[en3] and are held in trust for expenditures toward the support of the child.[en6] A parent is always welcome to petition the court for an accounting of the child support expenditures.[en7]

Far too often men are forced to pay child support for children who are not biologically theirs because they were married to the child’s mother at the time of birth[1] or they signed the paternity affidavit.[2] Let’s stop the wrongful and unneeded stress and financial struggles for men who are not the biological father and the innocent children this affects.

A. Support payments abated for non-biological fathers to the children.
That no matter how old a child is if a DNA test is performed on said child through the Court of jurisdiction and the DNA test results are negative ALL future child support is immediately terminated and all parental rights are immediately terminated from the date DNA test result are presented at a hearing, unless an affidavit of assumed parentage is signed by the non-biological father in the of the Court of jurisdiction at such hearing.[3]
a. If an affidavit of assumed parentage is signed assumed father shall retain all parental rights of said child.
b. If an affidavit of assumed parentage is signed assumed father shall still be responsible for child support for said child.
c. That a signed affidavit of assumed parentage shall not affect any past or future parenting time (visitation) orders.

1] - This appears to propose that if a DNA test shows that the putative father through marriage is not the biological parent of the child who is subject of the support that support and parenting rights are terminated unless the putative father voluntarily assumes parentage. These matters have been addressed by our courts and procedural due process is well established through statutory law and case law. The child of the marriage statute and case law state that a man who has acted as a father to the child has assumed responsibility for the child. I have written about why it is improper to give the child the status of filius nullius in Petition to Rescind or Vacate an Indiana Paternity Affidavit which addresses children of marriage.
2 - This appears to propose that if a DNA test shows that the putative father through execution of a paternity affidavit is not the biological parent of the child who is subject of the support that support and parenting rights are terminated unless the putative father voluntarily assumes parentage. It has been well-established through the statutory law and case law that there is a narrow time limit in which paternity can be rescinded except upon the showing of fraud, mistake of fact or duress.[en8] I also had provisions put into the paternity affidavit law to allow for the affidavit to be voided if a DNA test proved the putative father to not be the biological father.
3 - I recently wrote about why child support payments should not terminate nor should the parent-child relationship be dissolved because of incongruity in DNA. The matter of paternity will be a main topic at this year’s Spring Judicial Conference.

B. For child support actions:
a. That before child support through a divorce is granted and/or ordered all minor children shall be given a DNA test.[1]
b. That before any child support through a paternity action is granted and/or ordered all minor children shall be given a DNA test.[2]
c. That if a DNA test is negative there will be no child support award for the child for which the DNA test result was negative.[3]
d. That if a DNA test result is negative the non-biological fathers name shall immediately be removed from said childs birth certificate.[4]
e. That if DNA test results are negative mother shall pay for DNA testing; if test results are positive the party whom petitioned the Court shall pay for DNA testing unless otherwise agreed.[5]
f. That no child support award shall be granted for any time before the results of DNA testing.[6]

1] - Currently a father may petition the court for DNA testing to confirm or disconfirm paternity. However, disconfirming paternity is usually of little consequence although in some cases the presumptive father may escape paying support.[en9]
2] - I do have a senator who supports mandatory testing at birth if the father is accepting paternity at that time. The State of Indiana currently contracts for three-way paternity test at sixty nine dollars. This is a proposition that will be receiving more attention as the cost of testing is much less that the burden on the court system.
3] - When support was provided by a father prior to DNA testing it was based upon a filial attachment not genetics. To terminate support upon notice of lack of a genetic link would be abandonment of the child. It would be no more proper to abandon a child based upon a DNA test than it would be to use lack of a genetic link as a basis to abandon a child who was adopted. If a father has not voluntarily assumed a parenting role prior to a paternity action and is disconfirmed as the father then a support order would not be authorized.
4] - Again, this is wanton abandonment of the child and hints at spitefulness toward the child for not being genetically linked to the father.
5] - Generally we follow the American Rule where each side pays his own litigation costs. There are statutory provisions as well as court rules which provide for the recovery of costs. This should fall under that umbrella rather than by statutorily proscribed.
6] - Again, it is improper to abandon a child upon learning of lack of a genetic link. Much of what is proposed in sections b through f are already available to litigants in a paternity proceeding.

C. Mandatory DNA testing at birth
a. A child born in a marriage or out of wedlock shall immediately be given a DNA test before being released from hospital of birth.[1]
b. Until DNA test result there shall be no father named on said child’s birth certificate.[1]
c. After a positive DNA test result the biological father shall be given 10 days to sign said child’s birth certificate at said child’s hospital of birth.
d. A mother has the right to waive the DNA test, however doing so will result in no child support until biological father is established at mothers expense; no welfare benefits for mother until biological father is established, unless claim of good cause if filed with Court of jurisdiction or DHS office along with evidence supporting that fact.[2]
e. A father has the right to waive the DNA test, however doing so shall subject him to all Court expenses pertaining to paternity and child support until he obtains DNA test results. [3]
f. In the case where a waiver of DNA is signed by mother or father, child support obligation will only revert back to the date of DNA test result.[4]

1] - Any mandatory testing is going to receive pushback although cost is coming down and likely could be added to regular hospital charges covered by insurance as there is a medical benefit to correctly identifying parents. Privacy advocates will also object although this could be resolved by an independent lab performing the test and providing a report of the results as probability of paternity and then destroying the samples. 2] - Under Title IV-D paternity is supposed to be established or attempted as a qualification to receive benefits. 3] - That is the currently reality through presumption of parentage based upon marriage or signing a paternity affidavit. 4] - Retroactive support is covered by statute[en10] and caselaw.[en11]

Fathers should be given equal parenting rights as mothers. Every child deserves equal time with both their parents.[1] It is not the child’s decision to be born or who to live with, children suffer enough when their parents separate or divorce and the hardship is made worse when the child is used as a pawn against a parent and/or alienated from a parent. Far too often women are given sole custody based on the fact that they are women, women have tendencies to slander, claim false allegations of abuse and/or alienate the child from the father during the course of the proceedings so the child fears the father when visitation is allowed.[2] All custody cases should be determined the same way.[3]
a. Custody is joint physical/joint legal with no less than 14 days per month with each parent.[4]
b. There shall be no child support award.[5]
c. That slander, perjury, false swearing, false allegations of abuse, false protection orders, parental alienation, interference with custody shall be prosecuted. [6]
d. All parenting times shall exchange alternate Fridays at 6:00 pm. unless otherwise agreed.[7]
e. If the parents live more than forty five (45) minutes apart the parent who is better fit shall receive primary custody and the other parent shall receive parenting time of every weekend; every summer, spring and fall break from school; alternating holidays.[8]
f. If distance is a major factor the parent who is better fit shall receive primary custody and the other parent shall receive parenting time of one weekend per month (if applicable); every summer, spring and fall break from school; alternating holidays.[9]
g. In all cases transportation shall be split fifty/fifty (50/50).[10]
h. In any case where there has been substantiated domestic violence and/or protection order(s) parenting time shall restricted not be terminated; one hour every other week of family therapeutic counseling with the parent (perpetrator) and the minor child should be ordered; after perpetrator has enrolled in anger management and parenting education classes at their expense.[11]
i. In all cases where there has been substantiated domestic violence and/or protection order(s) counseling shall last six (6) months with a parenting time review hearing during the sixth (6th) month; or until completion of anger management and parenting education classes with a parenting time review hearing after completion of classes.[12]

1] - I have been adamant in my opposition to mandatory parenting time proposals and other encumbrances upon judicial discretion in crafting parenting time and custody orders. Children and families have varying dynamics that make equal parenting time impractical or impossible. Our courts have addressed cases of disabled parents, long haul truck drivers, mental illness, abandonment, neglect, and other scenarios in which deviations from the IPTG was appropriate. Some upward and some downward from the Guideline minimum.
2] - I have seen cases of alienation perpetrated by fathers quite often. The effects are at times more noticeable from women because through parenting time allocation they usually have more access to the child.
3] - If the same way refers to factors considered then that is already covered by law [IC 31-17-2-8; IC 31-14-14-4]. If by applying a broad ruling to all cases then that is clearly against the best interest of the children and contravenes substantial long-standing case law.
4] - Mandating parenting time, especially anything that leaves little discretion, is highly contradictory to a child’s best interest even if both parents are determined to be fit.
5] - Child support is held in trust for the benefit of the child. The purpose of child support is for the child to be able to maintain continuity in the standard of living between the two should the parents had remained living in the same household. I have read numerous cases where one parent earns in excess of 95% of total income. To deprive that child of a life above poverty in one household would be detrimental.
6] - Prosecutors have absolute discretion whether to prosecute. This was not formally established under the 1789 Judiciary Act but the separation of powers doctrine became more strictly applied in the late nineteenth century vesting prosecutorial authority solely within the Executive.
7] - Parenting time exchange times are presumptively established through the Indiana Parenting Time Guidelines unless modified by the court or agreement of the parties.
8] - Bright-line distinctions ubiquitously applied in child custody and parenting time matters are inappropriate. The most fit parent may have moved away from the marital residence to an area that makes it inconvenient for the child to see friends, receive ongoing medical treatment. The IPTG provide suitable guidance for parents, practitioners and judges to craft appropriate parenting plans.
9] - Same matters apply as in previous response.
10] - I do suggest that the person who is receiving the child provide transportation. This gives the parent and child time to reacquaint themselves prior to spending time in the home. Transportation is just another of the numerous fact sensitive matters that should be decided on an individual basis.
11] - Unnecessary obligations or encumberances, especially those which interfere with the parent-child relationship, can exacerbate hostilities or Domestic Violence. If the child has not been the target of Domestic Violence or exposed to it then there is no valid basis to restrict parenting time.
12] - Same matters apply as in previous response.

Many children suffer more heartache when parents are removed from them instead of allowing parents who are trying to work their problems out while still being allowed to be involved in their Childs life. Children are often times lied to and alienated from a parent due to lack of involvement and the Courts removing the parent completely from the child. It is harder for the child to understand why it is not ok to see their parent for a period of time, and then all of a sudden it is ok to see that parent. And many times custodial parents teach their children that the non-custodial parent is a bad person and the child is often scared of their non-custodial parent for no reason other than the manipulation from the custodial parent.

Please consider making a much needed change to the child custody laws!

I personally abhor any attempts to mandate a bright line determination of parenthood based upon DNA. To do this places the child in the position of presumptively being property which is attached by a genetic deed. Such a distinction contravenes the moral consciousness of a great many people, most notably our state’s policy makers. The very notion of attaching support only to our biological progeny goes against the long established ethos of our society all the way back to the general welfare provisions of the United States Constitution. When proposing changes to the child custody and support legal framework any mention of automatically binding either to results of a DNA test will preempt all other matters, however well presented or valid, from consideration.

The most fundamental problem with child custody and support proceedings is the people that come before the court. I regularly speak to judges who are frustrated by parents appearing pro se who are completely unprepared. Parents who have not read the law, the guidelines, or reviewed any of the videos on the Indiana Supreme Court’s self-service webpage. This includes after being directed to do so by the court. Often it is the parents who have created their own problems who scream the loudest for reform.

The obligation of the court is to provide an opportunity for a parent to plead his or her case. Some of these judges admittedly violate neutrality by advocating for an ill-prepared parent by eliciting information or making suggestions on presenting evidence. It is the obligation of a parent to set aside his or her personal interest and instead advocate for the interest of the child. A parent who professes to be too busy or somehow incapable of dedicating the time to becoming informed and prepared for a custody hearing is thus woefully incapable of taking on the much greater responsibility of additional child-rearing time and duties.

While I do dedicate a considerable amount of time to making adjustments to the policies relating to child custody and support in Indiana it is working with the minds of parents, especially those in high conflict cases, that produces the greatest results.

notes
[1] Mathews v. Eldridge, 424 U.S. 319 (1976)
[2] Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Commentary to Canon I of the Code Of Conduct For United States Judges.
[3] D.W. v L.W., 917 N.E. 2d 725, 727 (Ind. Ct. App. 2009)
[4] Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).
[5] Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997). The Indiana Court of Appeals held that an award of child support which leveraged a mother’s standard of living at the expense of a father’s standard of living was contrary to public policy.
[6] Straub v B.M.T. by Todd, 645 N.E. 2d 608, 613 (1980) “[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.” see also Roop v Buchanan, 999 N.E. 2d 457, 460 (Ind. Ct. App. 2013)
[7] The Indiana Legislature recognized that an accounting may sometimes be needed when it enacted [Ind. Code § 31-16-9-6].” Id. Indiana Code § 31-16-9-6 states that: At the time of entering an order for support or at any subsequent time, the court may order, upon a proper showing of necessity, the spouse or other person receiving support payments to provide an accounting to the court of future expenditures upon such terms and conditions as the court decrees. (emphasis added). Krampen v. Krampen, 997 N.E.2d 73, 83 (Ind. Ct. App. 2013) citing Olive v. Olive, 650 N.E.2d 766 (Ind. Ct. App. 1995).
[8] Indiana Code 16-37-2-2.1 (k) Notwithstanding any other law, a man who is a party to a paternity affidavit executed under this section may, within sixty (60) days of the date that a paternity affidavit is executed under this section, file an action in a court with jurisdiction over paternity to request an order for a genetic test. (l) A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court: (1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and (2) at the request of a man described in subsection (k), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.
[9] “[I]n the unique circumstances of this case, paternity was actually established in another man, K.G. K.G. is now the legal father of D.L. D.L. has two legal parents, Mother and K.G. C.L. is now not a legal parent of D.L. As we noted in our opinion, Mother herself argued that a motion to disestablish paternity was unnecessary because paternity was established in K.G. see In Re Paternity of D.L., 938 N.E.2d 1221, 1225 (Ind. Ct. App. 2010). Implicit in this argument is the recognition that C.L.’s paternity has been disestablished. The trial court also implicitly recognized that C.L.’s paternity was disestablished when it found that C.L. should not be responsible for any further child support for D.L.” In Re Paternity of D.L. 943 N.E.2d 1284, (Ind. Ct. Ap. 2011)
[10] The support order: (1) may include the period dating from the birth of the child; I.C. 31-14-11-5
[11] A trial court may order support retroactive to any date after the filing of the petition to modify support. Haley v Haley, 771 N.E. 2d 743, 753 (Ind. Ct. App. 2002)

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