21 February 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
The Domestic Relations Committee [DRC] of the Indiana Judicial Center met in regular session today to discuss the process of revising the Indiana Child Support Guidelines. Dr Betson appeared and presented to the DRC on the particular subject of the Parenting Time Credit.
Dr Betson first proposed a new way of classifying parents - Parent with Primary Residency [PPR] and Parent with Secondary Residency [PSR]. This is similar to what I proposed a few years ago as a way of mitigating the impact of the Non Custodial Parent label. I am pleased to see him do this as he suggested to the DRC the need to be sensitive to these labels. I will again be pushing for adoption of such new parenting distinctions.
Most of the discussion related to the manner in which Indiana calculates support and specifically the parenting time credit. Spending as anticipated by the ICSG is divided into three sections: 1] Transferred expenses which account for 35%. These are the expenses that follow the child such as providing food, travel to school or other activities, and the other incidentals that occur while a child is with a parent; 2] Duplicated expenses which account for 50%. These are the expenses that are assumed to be incurred by both parents and are additional to what an intact family would have. This would include any extra bedroom for the child, possibly a parent who normally used public transportation needing to get an automobile large enough to transport all children, and sometimes things such as clothing and toys which are currently considered controlled expenses; and 3] Fixed expenses which account for 15%. These are the expenses that include healthcare [the 6% rule], clothing, school book fees and the like.
Overall it is assumed by the ICSG that the cost of raising children in separate households is 150% the cost incurred by intact families. Indiana uses the income shares model and a graduated parenting time credit. The credit is applied to the transferred expenses [35% of total] which can result in up to a 17.5% credit if time is equally shared. The credit begins at 52 days and is very small, just over 1%, and only reaches 15% at 96 days. It rapidly increases from there. At 116 days the credit is 32% of the transferred expenses which is about 10% of total support calculation.[fn1] At 136 days the credit is 44% and then gradually gets to 50% at 183 overnights.
While there are transferred expense for overnight parenting time up to one night a week it has been a policy decision to not provide a credit for that. The purpose there is to induce the PSR to seek additional parenting time. It is also to keep the PRR from trying to restrict to no time. After all, the PRR will get the PSR to accept some of the financial responsibility while still paying 100% of the court ordered support amount. As previously shown when the overnights gets around 116 the credit increases rapidly. This has lead to resistance of the PPR from agreeing to a higher number of overnights with the PSR. This problem is exacerbated in New Jersey where the half of the transferred expenses kicks in at 35% of overnights. Thus PSR's will often seek no less than 35% and sometimes no more than 35% while the PPR offers no more than 34%. This bright line creates a credit or loss of 17.5% of support dependent on 4 nights one way or the other. Indiana spreads it out over 131 nights, the majority of it being across about 35 nights. Upon surveying judges in Indiana there is wide discrepancy among their experiences in which they find parents trying to manipulate parenting time to affect child support payment amounts. Overall across Indiana it is not a significant factor.
Dr Betson is suggesting, and I agree, that when parenting time is at or nearly equal that some of what are considered controlled expenses – clothing, large toys – that would not reasonably always flow with the child should be included in duplicated expenses.
In 2008 the Indiana Supreme Court in Young v Young [fn2] ruled that a parent who exercises daytime responsibilities such as providing meals, travel to activities and other expenses cannot receive overnights credit as a way of compensating for that until the DRC changes policy. However, as Judge Murray – Chair of the DRC -- did on remand, as Young did not preclude her, she receiving evidence of those costs and then deviating from the bottom end support calculation rather than adjusting the number of overnights. The DRC discussed the matter and they appear to be satisfied with adding language to the ICSG to instruct practitioners on accepting evidence of support that does not include overnights. The resulting effect should be that the negotiation of parenting time focusing on overnights as a means to produce adjustments to the child support payment order should be reduced.
The DRC would like to be ready to submit their proposal to the Indiana Supreme Court by 01 July 2015. They will take public testimony on 16 May 2014 at the Indiana Supreme Court chambers on level 3 of the Indiana State House at the north end. There will also be a link provided on the Indiana Supreme Court website in the near future for the public to submit written comment.
There are numerous new members on the DRC this year which I will address in a future posting. The next meeting is scheduled for 21 March 2014 where the topic that Dr. Betson will present is how the O'bama health tax will affect the ICSG.
notes
[1] .32 x 35% = 11.2%
[2] Young, 891 N.E.2d 1045 (Ind. 2008)
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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Friday, February 21, 2014
2014 Indiana Child Support Guidelines Amendments - Parenting Time Credit
Friday, February 14, 2014
Update on amending the 2014 Indiana Child Support Guidelines
14 February 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Maybe it is my sense of sick irony or a hint of caution that I post about this subject today.
The Domestic Relations Committee [DRC] of the Indiana Judicial Center [IJC] will meet again in regular session for the purpose of formalizing procedures for amending the Indiana Child Support Guidelines [ICSG] on Friday 21 February 2014 at the IJC. The DRC is a panel of 12 judicial officers who make recommendations to the Indiana Supreme Court [INSC] for rules relating to domestic relations cases. By federal statute each state is required to review their child support guidelines at least every four years.
As part of the review process the DRC will be taking testimony from the public in both written form and orally. This information will be posted on the INSC webpage as well as by me when I receive it. If you would like to receive updates from me just send a request to my scheduler using the link below.
I anticipate that the DRC will be taking oral testimony from members of the public on Friday 16 May 2014 beginning at 10:00a.m. In the chambers of the INSC which is on the third floor of the Indiana State House at the north end. This is not an official date. I only provide it to give you a heads up as to when it may be so that you may plan accordingly. As soon as I find out a firm date I will do another update posting. Please do not contact the IJC as you will only get referred to the INSC website.
The IJC is located at 30 South Meridian Street, Indianapolis. The DRC meetings are open to the public but are not public input sessions. At the discretion of the Chair the DRC does sometimes elicit input from visitors. Please contact my scheduler if you would like to be added to the guest list.
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, January 27, 2014
Understanding the Indiana Child Support Guidelines - 2014 Calculation Revisions
27 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
The Domestic Relations Committee [DRC] of the Indiana Judicial Center is given the charge of reviewing the Indiana Child Support Guidelines every four years pursuant to federal law.[fn1] 2014 brings about the requisite passage of time to embark upon such a review. As the DRC begins the process I will attempt to provide to you relevant information in regards to the ongoing process and your opportunity to provide input. In this posting I intend to start by providing some background for you regarding the Indiana child support payment scheme and those of other jurisdictions.
Indiana uses the income shares model developed by Robert Williams. This model provides that based upon total parental income children would account for a particular portion of total family spending. From this total amount each parent is assigned a share to pay based upon the incomes of each. This appears as Line 4 on the Indiana Child Support Obligation Worksheet [CSOW]. Indiana is one of 35 states that use this model.
11 states use the percent of income method. These states take a percent of the non-custodial parent's [NCP] and provide it to the custodial parent as a direct payment to supplement the custodial parent's spending on the child. This system poses significant problems. The percent of family resources dedicated to children are not consistent across the spectrum of income levels. While a family earning about $50,000 a year may spend 20% of that on a child a family earning that will likely spend a higher percent while those earning significantly more will spend much less. Certain constants like a child's need for nutrients is not contingent upon parents' incomes. A child who's parents earn $250K per year does not eat ten times as much as those who earn $25K per year. Similar comparisons can be made with clothing, extra-curricular activities, and rides to school.
Three states use some form of the Melson formula. Melson first provides that the parent is entitled to basic needs. After the basic needs exemption a portion of income is then attributed to the needs of the child. Remaining income is subject to a standard of living adjustment – non-essential purchases.
Of the three formulas the income shares model that Indiana uses is the most popular and I feel is the best to most accurately represent spending on children across a broad spectrum. In practice though it sometimes produces absurdities that are not nearly reflective of a family's actual spending on the children. Part of the reason for this is that the data used to determine Indiana's child support payment obligations is based upon 1972 surveys by the U.S. Department of Labor. Another flaw is the per capita application of some expenses such as housing. Using the per capita method a one bedroom apartment for a parent only would attribute a cost to the parent of $500, A $600 per month two bedroom – one for a child – would attribute a cost to the child of $300. A $750 per month three bedroom – two for the children – would attribute a cost to the children of $500. But we know the parent cannot get a one bedroom for the remaining $250. The per capita method attributes too high of a cost to the children. I have written more about that in this case where a mother was living off of child support payments. The current model that Indiana uses attributes 44% of household expenditures on a per capita basis – most of that being housing.
The purpose of the income shares model is to provide the children with the same standard of living that the children would have enjoyed had the marriage remained intact[fn2]. Implicit in this standard is that the standard of living of the parents shall be reduced from what it would have been had they remained married. This standard of living dichotomy is appropriate as it is not the children that seek divorce but it is the selfish interest of adults that lead to divorce. However, the standard of living of the NCP often seems to suffer in a disparate proportion to that of the custodial parent.
Another problem encountered by William's income shares model is that it uses gross income. This creates a disparity because of taxes and savings. Lower income earners often pay no taxes and may even receive an EIC payment from the IRS. They also may spend more than they actually earn thereby incurring debt to maintain their standard of living. By contrast, high income earners[fn3] pay a substantial percent of their income to taxes and other levies while also saving at a higher rate. Rothbarth has developed a measure that uses a net income adjustment for calculating income shares.
The DRC has secured the services of Dr. David Betson, professor of economics at the University of Notre Dame, to assist in the development of a revised child support calculator. I spoke with Dr. Betson briefly about some of the problems with the current system and ways that I feel could ensure a more just application of the ICSG to achieve the stated objective of providing the children with the same standard of living that they would have enjoyed had the marriage remained intact. I will detail some of our conversation in a future posting.
1] 42USC§667(a)
2] Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).
3] Households or families with weekly gross combined incomes of $4,000 or greater are considered high income earners.
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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Saturday, January 18, 2014
Bill to Amend Non-Support of a Dependent Child Statute IC 35-46-1-5 - Child Support 2014 Indiana Senate Bill 63
17 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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review scheduled for public comment
Senator Michael Young, Chair of the Committee on Corrections & Criminal Law, has introduced a bill that will bring greater continuity to and increase the level of equity in cases of non-support of a dependent as a criminal offense. The current statute has plagued courts, practitioners and defendants because of the perceived ambiguity of the statute through inclusion of a dollar amount in the sentencing enhancement portion of the statute.
The synopsis of the bill is;
Nonsupport of a child. Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)
Here is the portion of the bill that would affect the charge of criminal non-support of a dependent - IC 35-46-1-5;
[strike]if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).[close] [insert]the person has a previous conviction under this section.[close]
The inclusion of “fifteen thousand dollars” as well as the phrase “due and owing” has led to confusion about whether this section applies to civil child support payment orders. However, the statute is clear and unambiguous in that it does not include court ordered child support payments. IC 35-46-1-1 provides a clear definition of “support” as “food, clothing, shelter, or medical care ” Under the application of statutory construction the “fifteen thousand dollars” and “due and owing” cannot represent a child support payment amount. Expressio unius est exclusio alterius deems child support payments to be specifically excluded from the “support” contemplated by the legislature when this law was crafted. Expressio unius est exclusio alterius is a latin legal phrase [called a maxim] which means – that which is not included is excluded. The legislature was specific in proscribing only four categories of support that qualify as inclusive of the domain in which criminal accountability is contemplated. Thus, lack of “emotional support” or “learning aides” are not within the purview of IC 35-46-1-5. Educational neglect is specified under IC 35-46-1-4(a)(4) while emotional abuse may fall within the auspices of general abuse and neglect under IC 35-46-1-4(a)(1).
The only logical application of “fifteen thousand dollars” or the phrase “due and owing” would be to medical bills as it is highly unlikely that food, clothing or shelter would be provided on credit for any amount that could come close to $15,000. This can create a great disparity in application of the law. While one parent could regularly take a child for treatment at a hospital emergency room and not pay for five visits while not breaching the $15,000 threshold, another could breach that limit from one severe trauma such as an open cranial TBI. There was also no requirement that the person must have had the ability to pay the outstanding bills. I find that to be a substantive due process issue.
The remainder of the bill applies to the sentencing portion and post execution reduction of the offense level.
The bill adds the following section to IC 35-50-2-6 that replaces the existing language which was not as precise and was more discretionary in the process.
(c) Notwithstanding subsections (a) and (b), if a person commits nonsupport of a child as a Class C felony (for a crime committed before July 1, 2014) or a Level 5 felony (for a crime committed after June 30, 2014) under IC 35-46-1-5, the sentencing court may convert the Class C felony conviction to a Class D felony conviction or a Level 5 felony conviction to a Level 6 felony conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing in which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person has successfully completed probation as required by the person's sentence.
(2) The person has satisfied other obligations imposed on the person as required by the person's sentence.
(3) The person has paid in full all child support arrearages due that are named in the information.
(4) The person has not been convicted of another felony since the person was sentenced for the underlying nonsupport of a child felony.
(5) There are no criminal charges pending against the person.
(6) The prosecuting attorney agrees to the reduction of the penalty.
(d) A petition filed under subsection (c) must be verified and set forth the following:
(1) A statement that the person was convicted of nonsupport of a child under IC 35-46-1-5.
(2) The date of the conviction.
(3) The date the person completed the person's sentence.
(4) The amount of the child support arrearage due at the time of conviction.
(5) The date the child support arrearage was paid in full.
(6) A verified statement that no further child support arrearage is due.
(7) Any other obligations imposed on the person as part of the person's sentence.
(8) The date the obligations were satisfied.
(9) A verified statement that there are no criminal charges pending against the person.
(e) A person whose conviction has been converted to a lower penalty under this section is eligible to seek expungement under IC 35-38-9-4 with the date of conversion used as the date of conviction to calculate time frames under IC 35-38-9.
In the last session of the general assembly the criminal offenses were re-codified and offense levels were changed from alphabetical to numerical designations. The prior Class D felony has been split into two levels consisting of Level 5 and Level 6.
The term for a Level 5 felony is found in Indiana Code 35-50-2-6(c) ver. b
A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being two (2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
The term for a Level 6 felony is found in Indiana Code 35-50-2-7(b) ver. c
A person who commits a Level 6 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year. In addition, the person may be fined not more than ten thousand dollars ($10,000).
This bill was referred to the Committee on Corrections & Criminal Law where it passed 6-0 and went on to the full Senate. It is set for second reading on Tuesday 21 January 2014 at 1:30 p.m.
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
11 November 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
