Child Support
Collection Statistics
Total number of custodial parents (mothers and fathers) entitled to child support:
Total amount due these parents for child support: billion
Total amount these parents actually receive: billion
This indicates a significant gap of approximately billion dollars between the child support owed and the amount actually collected, highlighting challenges in enforcement and payment.
Who Must Pay?
Both parents have an equal obligation to support their children, recognizing that this shared responsibility is fundamental, regardless of marital status or custodial arrangements. The specific financial contributions are typically determined by child support guidelines that consider each parent's income, resources, and ability to pay, aiming for proportional rather than strictly contributions.
A grandparent, stepparent, coparent, or sperm donor generally does not have an automatic duty of financial support for a child. This duty may arise under specific circumstances:
Statutory Requirement: If a state law explicitly imposes such a duty, which is rare but can occur in situations like a stepparent adopting the child or assuming parental roles under specific state-defined conditions.
Express or Implied Agreement: If the individual formally agrees to provide support, often through a written contract or other legal documentation, or through actions that clearly indicate an intent to support.
Doctrine of In Loco Parentis: This applies when an individual voluntarily assumes the obligations and rights of a parent, acting "in the place of a parent" by taking on significant parental responsibilities with the intent to parent the child without formal adoption.
Equitable Estoppel: This doctrine prevents a person from denying parental duties if they have, by their words or conduct, led a child to believe they are their parent, and the child has relied on this representation to their detriment (e.g., forming a strong parent-child bond, foregoing seeking support from a biological parent).
Presumed Parent Under the Parentage Act (UPA)
Under the UPA, a person can be a presumed parent without being biologically related to the child and without being married to the biological parent.
The key criteria is receiving the child into the home and holding the child out as one’s natural child. This often involves openly acknowledging paternity or maternity, providing care, and engaging in traditional parental activities over a sustained period, thereby creating a legal presumption of parentage that can be difficult to rebut.
For How Long?
In general, the duty of support ends upon the age of majority (typically or depending on the state) or legal emancipation of the child. Emancipation means the child is legally recognized as an adult, usually through marriage, military service, or a court order, even if under the age of majority.
States differ significantly on whether a parent has an obligation to pay for a child’s college education. Some states may extend support if it is deemed a continuation of parental duty, especially if the child is still dependent or if there was a prior agreement between parents.
In most states, the duty extends beyond the age of majority if the child is physically or mentally disabled and remains dependent on the parent for support.
Should a Parent Send Their Child to College?
Pro
In today’s society college is often viewed not as a luxury but as a necessity for securing meaningful employment and economic stability, thus falling within a broader interpretation of a child's needs.
Some courts will require support as long as the child’s need for support continues (e.g., due to mental or physical disability, or if college is deemed essential for a child's reasonable future).
If a court is going to require a parent to send a child to college, they will look at:
Ability to pay: The financial resources of the non-custodial parent, including income, assets, and other financial obligations.
Capacity to learn: The child's academic aptitude, motivation, and likelihood of succeeding in higher education.
Prior agreements: Any existing agreements between the parents regarding college expenses.
Standard of living: The pre-divorce standard of living and whether the child would have likely attended college if the parents remained married.
Con
A parent’s duty to support is traditionally limited to the necessities (food, shelter, clothing). College is often argued to be a luxury, not a necessity.
The legal duty to support typically stops at the age of majority, and extending it for college is seen by some as an overreach of judicial authority.
Children of married parents have no right to force a parent to attend or pay for college, so it's argued that divorced parents should not be subject to a different, more extensive obligation.
Agreements on Child Support
Parents can agree on the amount of child support a child will receive, however:
An agreement to absolve a parent of the duty of child support altogether is not enforceable, as the duty primarily belongs to the child.
An agreement for an amount lower than required by the child-support guidelines is generally not enforceable, unless the court finds that the deviation is justified and in the child's best interest. This provision protects the child's right to adequate support.
How Much? The child-support guidelines set the presumptively correct amount of support that is due. These guidelines are calculations based on statutory formulas, typically considering parental income, number of children, and other factors, designed to ensure fairness and consistency.
Reasons for deviations from the guidelines can be considered by a court if they are in the child's best interest and can include:
Medical costs: Extraordinary medical expenses not covered by insurance.
Private-school costs: If a child attended private school prior to divorce or if it's deemed in the child's best interest.
High parental income: In cases where strict application of guidelines would result in an excessive amount, sometimes called the "three-pony rule" scenario.
The existence of other families that the parents must support: Obligations to other children or spouses can be a factor in adjusting support.
The amount of time the child spends with each parent: Significant variations in physical custody arrangements can lead to adjustments.
Special needs: A child's unique physical, emotional, or educational needs.
Child-Support Guidelines
Income-shares model: This model calculates the total amount of child support as if the parents and children were still living in an intact household. This total is then allocated between the parents based on their proportionate share of their combined gross or net income.
Percentage-of-income model: This model calculates child support as a percentage of the non-custodial parent's income, with the percentage often varying based on the number of children.
Three-Pony Rule
Child support for children of parents with very high incomes should be adjusted so that payments do not go beyond what is reasonably and rationally related to the realistic needs of the child. This rule is applied to prevent windfalls to children living in lavish lifestyles at the expense of fairness, recognizing that even wealthy children have limits to their reasonable needs (e.g., they don't "need three ponies" just because a parent can afford it).
Imputed Income
When parents improperly reduce their income capacity (e.g., voluntarily quitting a job, taking a lower-paying job, or failing to seek employment suitable for their skills), a court can treat the amount of the reduction as if it was actually earned, that is, as imputed income. This is done to prevent parents from intentionally avoiding their child support obligations and ensures that support is based on their earning potential, not just their actual earnings.
IV-D Agency Services
(IV-D refers to Title IV-D of the Social Security Act, which created the federal-state child support enforcement program.)
Help to locate an absent parent: Using various tools like federal parent locator services, state new hire directories, and other databases.
Help to establish paternity: Through genetic testing and legal proceedings, if paternity has not been legally established.
Help to establish a child-support order: Assisting custodial parents in obtaining initial court orders for support.
Help to establish a medical-support order: Ensuring that children have health insurance coverage, often designating one parent to provide it or allocating costs.
Help to modify a support order: Reviewing and adjusting existing orders when there has been a substantial change in circumstances.
Arrange for the withholding of the obligor’s wages: Implementing income withholding orders (IWO), where child support payments are automatically deducted from an obligor's paycheck by their employer.
IV-D Agency Services (continued)
Intercept: Intercept federal and state tax refunds to make them available for support. This is a common and effective method for collecting past-due child support (arrears).
Arrange: Arrange for the withholding of the obligor’s passive income, which can include unemployment benefits, workers’ compensation, disability payments, and sometimes even lottery winnings, to ensure ongoing support collection.
Help: Help collect child support if the obligor is in another state by utilizing the agency’s Interstate Central Registry under the Uniform Interstate Family Support Act (UIFSA). This ensures that support orders can be enforced across state lines.
New Hire Reporting
Employers are required to report information about all newly hired employees to a State Directory of New Hires (SDNH) shortly after the hire date (typically within days). This national system allows child support agencies to quickly locate non-custodial parents who are obligated to pay child support when they start new jobs, facilitating the establishment or enforcement of wage withholding orders.
The information must include the new employee’s name, address, and social security number.
Enforcement Options
(A wide array of tools and legal processes used to compel compliance with child support orders, particularly for delinquent obligors):
Civil contempt: A court order forcing an obligor to comply with the support order, often carrying the threat of incarceration until the arrears are paid or a payment plan is established.
Criminal nonsupport prosecution: Legal charges brought for willful failure to pay child support, which can result in fines or imprisonment.
Execution: A court order to seize and sell an obligor's property to satisfy a debt.
Income withholding: Automatic deduction of support payments from wages or other income sources (e.g., unemployment).
Garnishment: A legal procedure allowing a creditor (in this case, the obligee) to seize a portion of a debtor's wages or assets held by a third party (like a bank).
License and registration denial, delay, or revocation: State agencies can suspend or revoke professional, driver's, hunting, or fishing licenses for unpaid child support.
Passport denial, revocation, or restriction: The U.S. State Department can deny, revoke, or restrict passports for obligors owing over a certain threshold (), preventing international travel.
Tax-refund offset: Interception of federal and state income tax refunds to pay arrears.
IRS full collection: In some cases, the IRS can be authorized to collect child support arrears.
Unemployment compensation and workers’-compensation intercept: Deducting child support from these benefits.
Qualified domestic-relations order (QDRO): A court order that allows for the division of retirement plans or pensions to pay child support, alimony, or marital property.
Qualified medical child-support order (QMCSO): Ensures that a child receives medical benefits as part of a child support order, often requiring a parent's employer-sponsored health plan to cover the child.
Credit-bureau referral (credit clouding): Reporting child support arrears to credit agencies can negatively impact an obligor's credit score.
Financial-institution data match (FIDM) (freeze and seizure): State child support agencies can match delinquent obligors with financial institution accounts and seize funds to satisfy arrears.
Liens: A legal claim against an obligor's property (real estate, vehicles) that must be satisfied before the property can be sold or transferred.
Post security: A court may require an obligor to post a bond or other security to guarantee future child support payments.
Wheel boot; wanted posters: More severe or historical methods, where a vehicle can be immobilized, or public notices issued to locate severely delinquent obligors.
Attorney Representation
Indigent, delinquent obligors are generally not entitled to free attorney representation when charged with civil contempt for failing to pay child support, with some narrow exceptions:
If the obligee (the parent receiving support) is unrepresented, potentially balancing the legal playing field.
If the state provides crucial procedural protections, such as an opportunity to be heard, the right to present evidence, and clear notice that imprisonment will not be ordered if the obligor can demonstrate an inability to pay (not merely an unwillingness). The focus in civil contempt is often on compelling future compliance, not punishment.
Jurisdiction for a Child-Support Order
A court must have personal jurisdiction over a defendant (the obligor) to order him or her to pay child support. Personal jurisdiction typically means the defendant has sufficient connection to the state (e.g., residing there, working there, or having assets there) such that it is fair for the court to exercise authority over them.
Modifications of a Child-Support Order
A child-support order can be modified if a substantial change of circumstances has occurred since the court granted the original order, making the current order inequitable. This 'substantial change' is a high bar and can include significant changes in income for either parent, a change in the child's needs, or a significant alteration in custody arrangements.
No modification will be ordered:
If a parent voluntarily reduces his or her income-earning capacity in order to avoid paying support (as this would lead to imputed income).
If the modification would result in harm to the child, such as depriving the child of basic necessities.
In some states, after the guidelines are applied to the new financial facts, a court will apply a presumption that the amount should not be changed unless the result would be an increase or decrease of more than percent (or another specified percentage) of the amount originally ordered by the court. This threshold prevents frequent, minor modifications.
If the obligor takes on a new family (remarries and has more children), many courts will take this into consideration when deciding whether to modify the support order downward, so long as the first family is not left destitute thereby. The new family's needs are balanced against the existing obligations to the first family.
Courts differ on whether a man can avoid child support by proving that he is not the biological father of the child, especially if paternity was previously established through a court order or if doctrines like equitable estoppel apply.
Modifying Out-of-State Orders
The Uniform Interstate Family Support Act (UIFSA) and the Full Faith and Credit for Child Support Orders Act (FFCCSOA) are federal and state laws designed to prevent multiple states from modifying an out-of-state child-support order, thus giving priority to the state that initially made the order. This creates a uniform approach to interstate child support enforcement.
Under UIFSA and FFCCSOA, “the state that initially made the order has continuing exclusive jurisdiction (CEJ), which all other states must respect, so long as the custodial parent, or the child continues to reside in that state.” This means that only the state with CEJ can modify its own order. If all parties move out of the issuing state, another state can then acquire CEJ and modify the order.