John Schrader Law Blog

What about parents who were not husband and wife to each other when their child was born?

6/24/2015

25. Welcome back for our final Lesson! What about parents who were not husband and wife to each other when their child was born?

            Almost everything we have discussed in the first 24 Lessons applies to parents who were married to each other AND to parents who were not married to each other at the time their child was born. Let’s talk now about the particular differences.

            KRS 406 governs paternity actions. A child born during lawful wedlock, or within 10 months thereafter, is presumed to be the child of the husband and wife. We know the husband will not necessarily be the biological father of the child, and there is no presumption if the mother is not married, so DNA testing can used to determine paternity when parties do not agree by affidavit or testimony in court.

            According to KRS 406.031, a paternity action can be filed at any time before the child turns age 18, and if paternity is established, the father will be obligated to pay child support from the date of filing of the action until the child turns 18, or if still a full-time high school student, until the completion of the school year during which he turns 19.

            However, if the action is filed before the child reaches the age of 4, the mother can recover the arrearage of child support, medical expenses and childcare expenses that had accrued back to the date of birth.

            Oddly enough, the paternity statutes were enacted at a time when childbirth outside of marriage was frowned upon, and there is still a requirement that information in paternity actions is to remain confidential and not open for public inspection.

            There are custody and timesharing issues between unmarried parents that require intervention by the court, and some courts may want to transfer the confidential child support proceedings into the public custody matters so they can be heard together. I expect an appellate court to rule on the propriety of this practice in the near future unless the legislature decides to remove the confidentiality requirement.

            So, now you know a little bit about the nuances of paternity actions, and you may have completed this entire set of 25 Lessons on Kentucky law pertaining to child support.

            I hope my presentation in these Lessons has been helpful to you. Now that you are finished with this series, relax …

            And have a great day!

If Kentucky does not have jurisdiction over the other parent of my child, what is the UIFSA process to deal with establishment, enforcement and modification of child support orders?

6/17/2015

24. Welcome back! If Kentucky does not have jurisdiction over the other parent of my child, what is the UIFSA process to deal with establishment, enforcement and modification of child support orders?

            Let me employ the same disclaimer here as I mentioned in Lesson 23. I am not your lawyer! I am only offering a simple overview of the complicated nuances of UIFSA as they govern the two-step process of child support proceedings when there is no personal, or long-arm, jurisdiction in the state where the action is filed.

            So, if Mom now lives in Kentucky, she can initiate her petition here, and Kentucky is considered the “initiating tribunal.” The Kentucky court then sends 3 copies of the Petition, and the accompanying documentation, to the appropriate court in Tennessee, which is deemed to be the “responding tribunal.”

            Under that scenario, the court in Tennessee takes over, and it has the jurisdiction to issue, enforce or modify a child support order.

            If Texas has already issued a valid child support order, that order can be directly enforced in Tennessee (Dad’s state of residence), OR it can be registered in Tennessee according to a very specific set of requirements and, if not successfully contested by Dad in Tennessee, it would be confirmed there and could then be modified by the court in Tennessee if certain other circumstances are found to exist. Thus the two-state process, or what we can remember as the Texas Two-Step.

            In an effort to be fair to respondents such as Dad who now reside in Tennessee, UIFSA does not allow Mom to seek modification of the Texas order in a Kentucky court, where she now lives, unless Dad is subject to the long-arm jurisdiction we discussed in Lesson 23, or all of the parties agree for Kentucky to take over jurisdiction to enforce and modify the order.

            The really good news is that the county attorney’s office is responsible for dealing with UIFSA proceedings, so if you find yourself in the realm of interstate child support chaos, you can just call them and let them take care of the details.

            After the call, you can just relax and wait for your checks to come in the mail. (At least that's the way it is supposed to work!)

How does the law deal with enforcement of the child support order when my ex and I live in two different states?

6/17/2015

  23. Welcome back! So here’s a good one. How does the law deal with enforcement of the child support order when my ex and I live in two different states?

            We now live in a very mobile society, and I don't have to tell you this causes incredible complications in the world of child support. So, for purposes of our example here, let's say Mom and Dad lived in Texas when they had Sissy and Jr. Mom has since moved to Kentucky and Dad has moved to Tennessee.

            Fortunately, Congress has enacted the Uniform Interstate Family Support Act (UIFSA) to prevent total chaos in child support matters as parents like the Mom and Dad in this series of lessons move from state to state. All 50 states have adopted UIFSA, so we can effectively deal with these issues and determine which state has jurisdiction to establish, enforce, or to modify, a child support order according to a standard set of procedures. Kentucky’s UIFSA laws are found in KRS 407.

            I cannot possibly do justice to all of the terms of UIFSA in a this Lesson, and as these jurisdictional questions get very complicated, I should now reiterate that I am not your lawyer, but am simply offering an overview of the law for your edification.

            That being said, I can tell you that in the most basic and general terms, for purposes of establishment, enforcement or modification of a child support order, UIFSA provides for Kentucky, for example, to assert “long-arm” personal jurisdiction over Dad, a non-resident of KY, if one of 8 specific circumstances exist.

            KRS 407.5201 provides for jurisdiction if:

            (1) The individual is personally served with summons, or notice within this state;

            (2) The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive pleading having the effect of waiving any contest to personal jurisdiction;

            (3) The individual resided with the child in this state;

            (4) The individual resided in this state and provided prenatal expenses or support for the child;

            (5) The child resides in this state as a result of the acts or directives of the individual;

            (6) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;

            (7) The individual asserted parentage in the putative father registry maintained in this state by the Cabinet for Health and Family Services; or

            (8) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

            So, if Kentucky has jurisdiction over Tennessee Dad through one of these criteria, the child support litigation can be initiated in Kentucky if there is no child support proceeding pending in any other state. This is considered to be the “One State” proceeding. Kentucky could then, according to KRS 407.5205(1), enforce or modify its own child support order as long as one or both parents, or the child, remains a resident of Kentucky, or until both parents file written consents for a court in another state to modify the order and assume its own continuing, exclusive jurisdiction over the matter.

            On the other hand, if Kentucky does not have long-arm jurisdiction over Dad, or there is already an ongoing proceeding in Tennessee or some other state about the child support for Jr., a separate set of rules and procedures are used to decide which state should take the case.    That is considered the “Two State” process, or we could even call it the Texas Two-Step. Let’s talk about that in Lesson 24.

            Now you know how to determine whether Kentucky has jurisdiction over a non-resident for the purpose of conducting child support proceedings here. As you ponder this further, I hope you at least see that because all of Dad's exes live in Texas, hey may have reason to hang his hat in Tennessee!

What is involved in collection of child support?

6/17/2015

22. Welcome back! Let’s talk some more about collection of unpaid child support. Unfortunately, child support ordered does not necessarily result in child support paid. What is involved in collection of child support?

            KRS 403.240(2) provides that the failure of either party, without good cause, to comply with a provision of an order, shall constitute contempt of court, “and the court shall remedy the failure to comply.” So, from time to time, it may be helpful to tactfully remind the judge of his or her duty to remedy the failure to pay child support ordered to be paid.

            As a family court judge, I had over 100 cases on my Wednesday afternoon dockets involving people who had failed to comply with my orders to pay child support. Contempt of court is tricky. As jail time is a possibility, the defendant is entitled to counsel at a contempt hearing. He or she must be shown to have the ability to have complied with the order; otherwise, there would be good cause for the failure to comply. When a guy is in jail or prison, child support continues to accrue, but he generally has no ability to make the payments!

            If a finding can be made that he failed to pay without good cause, he is subject to sanctions. That could involve jail time, but again, he can’t pay while he is in jail. It could involve probated jail time, and the law requires that he has the opportunity and ability to comply with the terms of probation, so that means he has to have a job or can get a job in order to make payments.

            One effective approach to this problem is requiring the defendant to go to specific substance abuse treatment, mental health treatment, or job placement programs. This generally takes time, and arrearages continue to accrue while he deals with the problems that caused the contempt.

            Far too often, just when we get a guy ready to get a job, he fathers another child, relapses on drugs, and gets arrested on some other charge.

            For a thorough overview of the problems related to contempt of court for failure to pay child support, read the Kentucky Court of Appeals case of Ivy v. Barnes, 702 SW3d 838.

            The realities are that far too often, child support will never be collected, regardless of contempt of court. You may share my frustration on collection of child support, but at least you know a little bit more about the process.

            Have a great day!

What does the court do about child support when the child spends a considerable amount of time with both parents?

6/10/2015

21. Welcome back! What does the court do about child support when the child spends a considerable amount of time with both parents?

            When the Kentucky child support guidelines were enacted over 25 years ago, the child would generally live with the mother and visit with the father on alternate weekends. When children spend much more time with the "non-residential" parent, the courts have recognized that a deviation from the strict application of the guidelines is required. In order to equitably determine child support when the child spends a considerable time with both parents and they share expenses, the courts have adopted the Colorado Child Support Commission formula. This formula assumes it will cost considerably more (typically 1.5 times more) for both parents to raise the child due to duplication of items such as clothing, supplies, housing expense and the like.

            The calculations required under the Colorado formula may seem complicated, but as you can see from the worksheet I have prepared for this Lesson, it is just a matter of moving from A to Z! Both a blank worksheet and an example of how the formula works are shown below:

            We start with steps A - D, inserting each parent's monthly gross income and calculating their respective percentages, just as before. Then, insert the amount (E) from the Kentucky Child Support Guideline found in the table in KRS 403.212, and multiply by 1.5. That will determine the Base Monthly Support (F), which is allocated between the parents according to their incomes (G) and (H).

            Then, the average number of nights spent per month in each parent's home (I and J) is used to calculate the respective percentage of parenting time (K and L.) This is not always simple to determine, considering holidays, birthdays, spring break, summer vacations, etc., but to apply this formula, the total number of overnights in the year can be divided by 12 months.

            The parents' retained obligations (M and N) are obtained by multiplying their respective Share of Base Monthly Support by their percentage of Parenting Time. On our sample worksheet, the mother's retained obligation is (K X G) or 60 % X $724.28.

            Then, the adjusted obligations are calculated. On the sample worksheet, the mother's adjusted obligation (O), for example, is G minus M, or $724.28 minus $434.52, or $289.76. The father's adjusted obligation is calculated the same way, and then the net child support can be calculated. On the sample worksheet, the father would have a monthly net child support obligation only of $580.15.

            The allocation of health insurance and childcare expense is allocated only according to income, with no adjustment for the amount of time the child spends with each parent. So, on our sample worksheet, father is providing health insurance (S) and mother is paying the childcare provider (T). Adjustments are made based on their respective allocations of those expenses (V and X), and net adjustments in W and Y.

            Finally, adding the child support only from Q to the net adjustment for childcare and health insurance (Y), we finally get to Z, the total net obligation owed.

            Take your time getting through this. It really does make sense if you go through all of the steps, A - Z. Now, whether you are in Colorado or Kentucky, you know a little bit about calculating child support when the child spends a considerable time with each parent!

Is a Wage Assignment Order required for child support in Kentucky?

6/10/2015

20. In the last Lesson, we mentioned termination of a Wage Assignment Order. Is a Wage Assignment Order required for child support in Kentucky?

            Generally speaking, yes. FCRPP 9(2) clearly requires utilization of a form, AOC-152, upon entry of a court order directing the payment of child support (See Exhibit 20.) There is a link to this form through the Kentucky Court of Justice website. It is pretty straight-forward, and I should note that the rule provides that the social security numbers of the parties and the child or children are to be included on the form without redaction, notwithstanding the restriction against publication of personal identifiers.

            Along with AOC-152, another Order (Exhibit 20A), form OMB 0970-0154 (known as the Income Withholding Order or IWO), is to be prepared and presented to the judge. This form is ultimately sent, along with AOC-152, to the employer to require the withholding of support from the employee’s wages. OMB 0970-0154 is a bit more complicated than AOC-152, but helpful instructions for completing it can be found online. A copy of the forms should also be sent to the office of Kentucky Child Support Enforcement at the appropriate local address.

            Termination of an Income Withholding Order is accomplished by a similar order by checking the appropriate termination information on a new form OMB 0970-0154.

            Technicalities for sure, but now you know a little bit about what is involved with the AOC-152 and the OMB 0970-0154.

When does child support terminate?

6/10/2015

19. Welcome back! When does child support terminate?

            KRS 403.213(3) tells us “unless otherwise agreed in writing”, the provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of 18. Parents can’t agree for child support to stop before the child turns 18, as the support accrues for the benefit of the child, not the custodial parent.

            Can you agree to pay child support through college? Yes, but hindsight is 20/20. Do you want to be 60 years old and under court orders to support that last child who is out there burning couches on campus?

            In cases where the child becomes emancipated because of age, but not due to marriage, while he or she is still a high school student, child support shall continue while the child is a high school student, but not beyond completion of the school year during which the child turns 19.

            Termination of child support due to emancipation of the child, for example when the child moves out of the home and is self-sufficient, should require a court finding to avoid any question about the support, and the child may be un-emancipated if he or she loses that job or apartment and again needs parental support.

            There may be issues about the obligation to pay child support for a home-schooled student, but my interpretation of the caselaw suggests that a home-schooled child can qualify as a “high school student” so long as it is not a sham operation and provides an education substantially equivalent to public high school.

            Bankruptcy does not cause a termination of child support or discharge an arrearage owed for child support.

            Child support continues even if the child is removed from the parents by reason of neglect or abuse, but then it is to be paid to the state instead of the other parent.

            Termination of parental rights means termination of future child support, but any arrearages will still be owing.

            What if a parent dies? The child support obligation can continue on, and the judge decides whether to modify it, revoke it, or set a lump-sum payment to be paid to the other parent – whatever is “just and appropriate”.

            The obligation to pay child support does at least terminate upon the death of the child. However, the death would not eliminate any arrearage in child support that had accrued.

            Lastly, regardless of the reason child support is terminating, the wage withholdings do not stop automatically. A court order is required to set aside the Wage Assignment Order. We will talk further about that in the next Lesson.

How do I get a modification of child support in Kentucky?

6/3/2015

18. Welcome back! We all like change, right? How do I get a modification of child support in Kentucky?

            KRS 403.213 deals with the modification of a child support order. There are two important considerations here. First, the statute provides that a child support order may be modified only as to installments accruing after the filing of a motion for modification. This is not negotiable. The judge won’t modify back to the time you start talking about modification, or whenever the circumstances may have changed. No motion, no modification.

            Second, the child support order will not be subject to modification unless there is a showing (by evidence) of a material change in circumstances that is substantial and continuing.

            Since we are dealing in dollars, the statute tells us that a change of 15 % or more in the amount calculated under the child support guidelines constitutes a rebuttable presumption of a material change in circumstances. So, do the calculations. If there is a 15 % change in child support, you can probably count on a modification.

            Now, let’s go back once again to the worksheet. The 15 % change applies to the child support only - the amount calculated on Line 7 above the red line, not the bottom line which may also include an allocation of health insurance and childcare expense. The allocation of childcare expenses and health insurance can (and should) be modified as the parties' gross income changes, without a 15 % requirement.

            If you have a 15 % change in child support only, you qualify for a modification, and you should go back to FCRPP 9. The same procedures apply.

            Now you see when and how child support can be modified, and in the next Lesson you will learn about when child support is terminated.

<<Previous

What about parents who were not husband and wife to each other when their child was born?

If Kentucky does not have jurisdiction over the other parent of my child, what is the UIFSA process to deal with establishment, enforcement and modification of child support orders?

How does the law deal with enforcement of the child support order when my ex and I live in two different states?

What is involved in collection of child support?

What does the court do about child support when the child spends a considerable amount of time with both parents?

Is a Wage Assignment Order required for child support in Kentucky?

When does child support terminate?

How do I get a modification of child support in Kentucky?

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