A Child’s Right, A Parent’s Duty
Every parent has a legal responsibility to provide adequate support until their child reaches the age of emancipation. Divorce does not end this legal obligation. While a marriage has been dissolved, the child remains entitled to financial support. Child support laws were designed to address the financial aspect of raising a child and to fairly distribute the financial responsibility among the parents. Support payments also ensure that a child can live in a similar economic circumstance as that which existed prior to the divorce. If you are one of the estimated 40 million parents nationwide involved a child support matter, this article will help explain your legal rights.
Child Support Defined
Child support can be defined as the payment by one parent (usually the “non-custodial parent”) to the other parent to support their common child. Essentially, one parent pays the other parent, who in turn, pays the child’s day to day expenses. In New York, parents, are financially obligated until the child reaches emancipation at the age of 21; in New Jersey parents are responsible until the child reaches 18 (with certain exceptions). This financial obligation holds true regardless of whether the child’s parents live apart, never lived together, or were never married. A Child Support Order is always part of the divorce decree or paternity judgment and is issued by the court to specify the payment amount and schedule.
In addition to the standard payment set by the court, support may also include childcare costs, uninsured medical and education expenses, and other costs such as private schooling, special needs of gifted or disabled children, and visitation transportation expenses. Most states, including
New Jersey and New York, have established formulas to calculate the amount of the support payment. Support is not tax-deductible, and the courts generally make their support determination based on income after taxes. A number of factors are used to determine the payment amount:
- The needs of the child,
- The circumstances of both parents and their standard of living,
- Income and assets of each parent,
- Liabilities and debt of each parent,
- Earning potential of each parent,
- Age and health of the child,
- Child’s education, including college, and
- Other factors that the court feels are relevant.
The amount of child support does not have to be decided by a court. A pretrial agreement can be developed in lieu of using the state’s guidelines, and the court will often award the payment based on this agreement. Working with their attorneys, parents identify the requirements of their child and help develop an agreement that is truly “in the best interests of their child”.
Child Support Enforced
Unfortunately, many parents who have been awarded support on behalf of their child do not receive it. Some parents who are required to pay, cannot. Others ignore or deny legally enforceable payments for various reasons – so called “Deadbeat” parents or those who believe they can stop payments because visitation of their child has been restricted by the custodial parent. Finally, a question of paternity may be used by an alleged father to deny payment.
Paternity becomes an issue in child support cases when the alleged father claims that the child is not his. In these cases, genetic or DNA tests can be ordered by the court to establish paternity. Once paternity is proven, the father may owe support payments retroactive to the date when the child was born. Last year, approximately 1.6 million fathers’ paternity was established and acknowledged. Nearly 700,000 paternities were voluntarily acknowledged by the father in a hospital at the time of birth.
The spouse who is deprived of court ordered support payments can seek legal remedy. Congress established the federal Child Support Enforcement Program (CSE) to offer services that include locating the non-custodial parent, establishing paternity, establishing support orders and collecting support payments. Last year the CSE’s child support caseload was over 17 million. Technological advances, cooperative interstate laws and the New Hire Registry have provided the CSE with a high-success rate in collecting payments (including retroactive amounts), garnished wages and other sanctions.
It is the children who suffer most when child support obligations are not met or payments are inadequate. Federal and state laws were developed to ensure that parents do not shirk their responsibility towards their children, and that the parent with physical custody of the child is able to adequately provide for their child’s needs.