March 31, 2011

More Things a Non-Custodial Parent Should Know

Posted in Child Support tagged at 1:16 pm by demetriagraves

A common question I’m asked as a family law attorney is regarding the rights of a non-custodial parent who is paying child support. What are the rights of the noncustodial parent who believes that the money he or she is paying is not actually supporting the child but is perhaps padding the pockets of the custodial parent? What recourse does that parent have, and what happens if he or she does not obey a court order to pay?

Because U.S. child support laws are state-specific, this article is intended to give you a general idea of what to do and what to expect if you have one of these questions. For specific guidance on your rights and obligations, please check with a family law attorney or child support enforcement agency in your jurisdiction.

Here are ten things to know:

1. WHAT CAN I DO IF I THINK I AM NOT THE PARENT?

If you have been served with a complaint or petition for child support and you believe that you are not the child’s parent, you have a right to request a blood or DNA test. It is important that you request a blood or DNA test immediately. Should you fail to do so, you could still be liable to pay child support. If the test results are negative, the court will dismiss any case against you.

2. THE SHERIFF HAS PERSONALLY DELIVERED A SUMMONS AND COMPLAINT TO MY HOME. I AM BEING SUED FOR CHILD SUPPORT, WHAT CAN I DO?

You or your attorney must answer the complaint for child support within the specified time period for answering the complaint. Failure to do so could result in a default judgment against you. If a default judgment is awarded against you, you could be responsible for paying support even though paternity has not been established. In some jurisdictions, failure to answer the complaint automatically establishes you as the parent.

3. I HAVE BEEN PAYING CHILD SUPPORT FOR YEARS BUT HAVE DISCOVERED THAT THE CHILD IS NOT MINE, WHAT SHOULD I DO?

Unfortunately, if you have been paying child support for a child that turns out not to be yours, you may still be obligated to pay child support. Although controversial in nature, in these cases the courts in every jurisdiction will recognize the child’s interest over that of the non-biological father. In almost every jurisdiction the courts recognize the child as the victim not the non-biological father. In doing so, the courts have coined the legal term “Parentage by Estoppel.” This means that because you took on the duty to provide support to a child for so long, it would be unfair to the child for you to eliminate payments altogether. Because courts must ask the question, “What is in the best interest of the child?” the courts believe that the father must continue to pay child support so as not to interrupt financial assistance to the child. This does not mean that you can never stop making support payments. The courts vary in each state as to how they treat this issue based upon the facts. This is why it is so important to challenge paternity early in the process even if only the slightest chance exists that you may not be the father. If you believe that this situation may apply to you, it is imperative that you consult an attorney.

4. I HAVE NO INTENTION OF PAYING CHILD SUPPORT; WHAT IS THE WORSE THAT CAN HAPPEN?

Failure to pay child support is a crime under federal law (Child Support Recovery Act of 1992). You can be prosecuted for any willful failure to pay under a support order where there is evidence that you had the financial means to pay and failed to do so. You can be prosecuted if you are more than $5,000 in arrears and have failed to pay support for more than one year. Failure to pay child support could result in suspension of your driver’s license, loss of your security clearance (for government jobs), loss of your job, and it could make it harder for you to obtain a new job. It could also make it harder for you to obtain licensure to continue your career (e.g., license to practice law).

5. I AM BEHIND IN MY CHILD SUPPORT PAYMENTS, WHAT IS THE WORSE THAT CAN HAPPEN?

You will be held in contempt of court. A warrant for your arrest could be provided to law enforcement, and this could lead to your being prosecuted under the Child Support Recovery Act of 1992, which could lead to jail time. The court could also grant the custodial parent the rights to seize your real or personal property and/or garnish your wages.

6. I AM MAKING MY SUPPORT PAYMENTS BUT I HAVE REASON TO BELIEVE THAT THE MONEY IS NOT BEING USED FOR MY CHILD, WHAT CAN I DO?

As a parent, you have every right to ensure that the financial assistance that you provide is in fact being used for your child’s care. If you have reason to believe that the custodial parent is taking advantage of you by misapplying support funds, you or your attorney have the right to petition the court for an accurate accounting of the funds and how they are being applied. Nevertheless, you have the burden of proving that the custodial parent is misapplying your support payments.

7. I HAVE OTHER KIDS TO SUPPORT, HOW MUCH CHILD SUPPORT DO I HAVE TO PAY FOR THIS ONE?

Your monthly support obligation will always take into account the children that you are actively supporting. Your state’s child support guidelines will likely reduce your monthly support payments if you can prove that you actively support other children. If you are already making child support payments under a previous support order and have been sued again for child support by another parent, you may seek a modification of your existing child support order from the court.

8. I LOST MY JOB. DO I STILL HAVE TO PAY CHILD SUPPORT? WHAT CAN I DO?

Once parentage has been established, you will always be liable for child support. But if you are unable to pay child support because you lost your job, you must make the court aware of your material change in circumstances. The court will reassess your situation on the basis of evidence you provide that illustrates that you are unable to pay. You or your attorney can file a motion to modify existing support obligations. However, if you are entitled to unemployment insurance compensation, the custodial parent has a right to tap into a limited percentage of those funds.

9. HOW IS THE AMOUNT OF CHILD SUPPORT I HAVE TO PAY DETERMINED?

The amount of child support you pay is determined by guidelines developed and followed by your state. The guidelines take into account, among other things, your net monthly income, the number of kids you actively support, and your monthly expenses. The guidelines provide the court with a way to accurately assess what you should be able to pay on a monthly basis. Your support order is based primarily on these guidelines. Should your monthly expenses and income change, the court will reassess what you are able to pay once it becomes aware of your material change in circumstances.

10. I INTEND TO LEAVE THE COUNTRY, AM I STILL OBLIGATED TO PAY CHILD SUPPORT?

You are still obligated to pay child support because most countries have reciprocity agreements with the United States. These agreements allow you to be sued for child support even though that you are no longer living in the United States.

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