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.

Mediation Rules Amended - Clarifies Mediator's Role and Duties

Today the Supreme Court published orders amending a variety of rules. Notably, the mediation rules for family law mediators were amended, effective January 1, 2010.

The Rule amendment squarely deals with a mediator's role in the preparation and review of documents:

(F) Mediator’s Preparation and Filing of Documents in Domestic Relations Cases
At the request and with the permission of all parties in a domestic relations case, an
attorney registered under ADR Rule 2.5(B) (Attorney Mediator) or a non-attorney registered
under ADR Rule 2.5(B)(2)(b) (Non-Attorney Mediator) working under the supervision of an
Attorney Mediator, may prepare or assist in the preparation of documents as set forth in this
paragraph (F).
The Mediator shall inform an unrepresented party that he or she may have an attorney of
his or her choosing (1) be present at the mediation and/or (2) review any documents prepared
during the mediation. The Mediator shall also review each document drafted during mediation
with any unrepresented parties. During the review the Mediator shall explain to unrepresented
parties that they should not view or rely on language in documents prepared by the Mediator as
legal advice. When the document(s) are finalized to the parties’ and any counsel’s satisfaction,
and at the request and with the permission of all parties and any counsel, the Mediator may also
tender to the court the documents listed below when the mediator’s report is filed.

Additionally, the mediator may prepare or assist in the preparation of only the following documents:

(1) A written mediated agreement reflecting the parties’ actual agreement,
with or without the caption in the case and “so ordered” language for the judge presiding
over the parties’ case;
(2) An order approving a mediated agreement, with the caption in the case, so
long as the order is in the form of a document that has been adopted or accepted by the
court in which the document is to be filed;
(3) A summary decree of dissolution, with the caption in the case, so long as
the decree is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the summary decree reflects the terms of the
mediated agreement;
(4) A verified waiver of final hearing, with the caption in the case, so long as
the waiver is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed;
(5) A child support calculation, including a child support worksheet and any
other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting
Time Guidelines, so long as the parties are in agreement on all the entries included in the
calculations;
(6) An income withholding order, with the caption in the case, so long as the
order is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the order reflects the terms of the mediated
agreement.

The Supreme Court also amended the appellate rules to encourge more appellate mediation. Appellate mediation has not been frequently used in family law matters. This may change.

Custody and Parenting Time

When someone says they want 'custody' or 'sole custody' what do they really mean? They usually explain that they want to be involved in decision making and want to have substantial time with the child; however, being involved and have substantial time with the child is not necessarily controlled by the title of 'custody.' This posting will try to explain the title of 'custody.'

In Indiana we have two components to custody: (1) legal custody and (2) physical custody. Legal custody refers to decision-making authority for decisions related to the child's medical care, educational placement and religious upbringing. If you and the other parent can communicate effectively on these topics you could share legal custody. What if you reach an impasse on an issue? That issue can be resolved with attorneys, a mediator or with the help of a parenting coordinator (see previous blog entry).

'Physical custody' and 'parenting time' are best expressed as "who is going to have the child and at what times?" If one parent has 'sole physical custody' we do not know what that really means unless we know how much parenting time the other parent will have. Your court order might say you have 'sole physical custody,' but it could also say that the other parent has the child three days one week and four days the next? There is nothing 'sole' about that. As a default recommendation, the Indiana Parenting Time Guidelines suggest that at a minimum the parent that has the child less should have the child every other weekend, one evening a week (this can be an overnight), and one half the summer and for alternate holidays. This equates to 25-30% of the time with the child.

What about a 50/50 split? This is sometimes a goal of a prospective client. It can work in certain circumstances, but it has to be in child's best interest as well. Logistical factors can control this:

Do you live close to each other?

Can each parent get the child to school?

Can work schedules support this?

Who will take and pick up the child to activities?

Indeed, there are certainly more factors. As you might imagine, being able to manage a 50/50 split of parenting time depends on how well the parents can work together and communicate.

Finally, let's discuss what the title of 'custody' does not control. It does not give one parent the right to decide what activities the child is involved in, whether the child should be allowed to go see the new Harry Potter movie, or whether the child should be allowed to stay up past 11 p.m. This are decisions each parent gets to make during the their respective parenting time (however, the issue of activities needs to involve communication between the parents, especially where future scheduling is needed or there is a fee for the activity that is shared). Put another way, just because you have 'custody' you do not get to micromanage all of the child's concerns.

When considering how to settle the issue of custody, don't focus on the title of 'custody,' but how to frame your settlement agreement or court order to cause you to have input into the decisions you want to share and the time you wish to have.