New Child Support Guidelines - Excessive Arrearages Are Not in Child's Best Interest

One of the more interesting additions to the child support guidelines, effective January 1, 2010, is the inclusion of language cautioning that high child support arrearages have the effect of 'chasing away' noncustodial parents from their children. Here is the language:

Attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interests of the child(ren). Research shows that on average more noncustodial parental involvement is associated with greater child educational attainment and lower juvenile delinquency. Ordering support for low-income parents at levels they can reasonably pay may improve noncustodial parent-child contact; and in turn, the outcomes for their children.

In other words, a noncustodial parent may be less likely to have contact with the child if he/she is harassed to pay back a large child support arrearage. The counter-argument is that the noncustodial parent made his/her own bed when he/she failed to pay support and now they must lie in it. By including this language the Supreme Court is not favoring custodial or noncustodial parents, but rather the children involved.

There remains plenty of opportunity for either a custodial or noncustodial parent to argue their own position with support from the guidelines and other applicable law; however, it is clear that the Supreme Court wants attorneys, judges and parents to be cognizant of the concern that high arrearages may, for whatever reason, have the effect of chilling the parent-child relationship, and this is not in the child's best interest.

For more on the policy concerns behind excessive child support arrearages click here.

"All Things Family Law" featured in the Fort Wayne Gazette

Click here for article.

New Child Support Guidelines - "Negative Support Orders"

While the amended child support guidelines are not effective until January 1, 2010, expect "negative support orders", where the custodial parent pays the noncustodial parent, to be more common immediately. Why? Because now that we know what the guidelines will presume in a few months it makes sense to apply the concepts now.

Negative support orders are appropriate under the current guidelines. There were a series of appeal cases under the title Grant v. Hager (first Court of Appeals opinion here, Supreme Court opinion here, and second Court of Appeals opinion here) that addressed whether such an order is allowable. After going back and forth it was decided that courts should be allowed to order the custodial parent to pay the noncustodial parent support if the economics and parenting time suggest that such a payment is equitable. However, such orders were not presumed, but rather, were allowable. In legal matters, this is an important distinction as having a presumption gives a movant big advantage. Now, negative support orders will be presumed to be the proper amount of support.

The Court of Appeals discussed the policy concerns involved:

There are advantages and disadvantages to allowing child support pay-ments to run from a custodial to a noncustodial parent. On the one hand, to do so encourages a noncustodial parent to participate more in his or her children’s lives following divorce, and it results in more similar living environments for children when they go from one parent’s home to the other’s. On the other hand, it also has the potential to increase custody disputes by providing an incentive for a cus-todial parent to fight shared parenting time, and it takes money from the custodial parent, thereby reducing the likelihood that he or she will be able to provide a home more similar to that which the children would have enjoyed had the marriage remained intact.

With the new amendments the former policy interest won out, as the Supreme Court amended the guidelines with the following langugage - The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support, if application of the parenting time credit would so require. For example, if the custodial parent makes $100,000 annually, and the noncustodial parent makes $20,000 annually, and the noncustodial parent exercises enough parenting time with the child, there will be a negative support order. To figure out if this change might effect you, contact an attorney.

Since negative support orders are allowable under the current guidelines, and we know they will mandated under the guidelines on January 1, 2010, expect attorneys and courts to start applying this change now.

For more on the new guidelines, see the September 16, 2009 blog posting.