Spartanburg Divorce Lawyer & Attorney : Stevens-MacPhail Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

Last week, the Spartanburg County Clerk of Court released a welcome orientation letter that answers some common questions about child support enforcement.  For instance, this letter specifies which caseworkers have been assigned to particular files, and it indicates that a hearing may be scheduled if the payor becomes three consecutive payments behind.  A copy of that letter can be accessed and downloaded by clicking HERE.

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Question:  When can a parent ask the Court to modify an existing amount of child support?  Does it make a difference if the person is seeking an increase or decrease?  Does it matter if the parent that is paying has made all of the required payments and has made all of the payments on time?

Answer:  In order to modify any issues pertaining to the child (including child support, custody, visitation, etc.), the person requesting the change must first prove that there has been a significant or substantial change of circumstances since the parties were last before the Court.  If such a change can be proved, the Court will then use the Child Support Guidelines to determine the current, correct amount for child support.  South Carolina's Guidelines take the following factors into account: gross monthly income (or earning capacity) of each parent; work-related child care expenses; health insurance premiums for the child; other children in the home; and other child support paid or received pursuant to a Court Order.  It does not matter whether an increase or decrease is being sought, as the same factors and numbers are used either way.  Also, the fact that all payments have been made in a timely manner will not prevent a future modification.

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The new passport requirements that complicated travel this past summer have also uncovered vast numbers of parents who owe back child support.  Through its Passport Denial Program, the State Department denies passports to noncustodial parents who owe more than $2,500 in back child support. Once the owing parent has satisfied their child support arrearage, they may reapply for a passport.

Considering that millions of additional travelers are now required to have passports to fly back from Mexico, Canada, the Caribbean, and South America, collections under the Passport Denial Program are on pace to almost double this year.  States have reported collecting at least $22.5 million through the program thus far in 2007.  Perhaps this is one program that the government has finally gotten right.

Source: "New Passport Rules Help Recover Back Child Support" by Dan Nunley, published at his Oklahoma Family Law Blog.

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For many people, conceiving a child is easy, but figuring out who should pay child support for that child can be complicated.  In South Carolina, if a child is born during a marriage, the husband is presumed to be the legal father of that child.  If the wife had an adulterous affair, the husband will need to bring add her lover as a party to the Family Court case so that the lover can be declared the legal father of that child.  Should the husband fail to do so, he could be stuck with all of the financial responsibility for that child, even though it isn't his biological child.

The National Center for Health Statistics reports that more than a third of children born in the United States are born to unwed parents.  The alleged father may (or may not) be the biological father, depending on the mother's sexual activity.  When one of my clients is alleged to be the father of a child, I typically recommend that he have a DNA paternity test conducted to be sure that the child really is his.

AskMen.com reports that there has even been a group founded to deal with such issues:  U.S. Citizens Against Paternity Fraud.  Its founder, Carnell Smith, has even proposed mandatory DNA testing upon the birth of a child, because, as he claims, “it's not a crime for someone to lie about which man is the father… [and] the mother doesn't have to return the money and rarely, if ever, is she prosecuted for perjury, for fraud."

I don't know that I would go as far as Mr. Smith has suggested, but I do believe that every child should have the right to know and have a relationship with his/her parents, as long as those parents act reasonably and responsibly.  What do you think about his proposal?

Source:  "Child Support When It's Not Yours" published at AskMen.com.

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A Pennsylvania appellate court recently held that three (3) adults were liable for the support of the same children.  In this case, a sperm donor had helped a lesbian couple conceive two children, only to find himself liable for child support, which may be the first ruling of its kind in the United States.  The case was remanded to the trial court to establish how much the donor father would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl.

"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.

The two women moved in together as a couple in 1996, and they were granted a civil-union license in Vermont in 2002.  In addition to conceiving the two children with the help of the sperm donor — a longtime friend of one of the women. 

The women's relationship later fell apart, and they separated in February of 2006.  Shortly afterward, a court required one woman to pay support to the custodial mother.  The paying mother then lost an effort to have the court force the father to contribute support, but that decision was overturned on April 30, 2007.

The custodial mother said that the the father provided some financial support over the years and gradually took a greater interest in the children.  "Part of the decision came down because he was so involved with them," she said Wednesday. "It wasn't that he went to the (sperm) bank and that was it. They called him Papa."  The process was very informal, as the child was conceived at home.

In his written opinion requiring the father to help pay for the child's support, the Superior Court Judge noted that the father spent thousands of dollars on the children, including purchases of toys and clothing.  The children knew he was their biological father, but he opposed the effort to compel support from him.

His lawyer, Matthew Aaron Smith said, "We made the argument that, according to Pennsylvania law as it stands, there can really only be two adult individuals that can be held liable for support in a child-custody case."  The paying mother's attorney, Heather Z. Reynosa, wants the father's support obligation to be made retroactive to when the custodial mother first filed for support.  The father died during the pendency of the litigation, and his Social Security survivor benefits may also help reduce the paying mother's monthly obligation.

It is unclear how the child support guidelines, which assume two parents, will be adapted to account for three parents.  "That's what's going to be interesting, because there's not a whole lot of guidance out there," Ms. Reynosa said.  The state Supreme Court is currently considering a similar case, in which a sperm donor wants to enforce a promise made by the mother that he would not have to be involved in the child's life. That biological father was ordered to pay $1,520 in monthly support.  About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.

Note:  The above was compiled from various news articles.  The full appellate decision can be ready by clicking HERE.

Source:  "Sperm Donor and Both Parents Liable for Support (Pennsylvania)" by Alexander R. Rhoads, published at his Iowa Family Law blog.

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Question:  What is the Biggest Mistake Fathers Make in Paternity Cases?

Answer:   Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.

Source:  "What is the Biggest Mistake Fathers Make in Paternity Cases?" by Trent Wilcox, published at his Arizona Divorce & Family Law blog.

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Parents in Illinois owe $3 billion in child support, while the nationwide debt totals $100 billion. According to state records, the worst deadbeat dad in Illinois is a Chicago resident, who owes his ex-wife and daughters $367,000 in child support.  At least 20 Illinois "deadbeat dads" owe their families over $100,000. 

Source:  "State's Deadbeat Dads Owe $3 Bil." by Abdon M. Pallasch, published in the Chicago Sun-Times.

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The Child Enforcement Agency in Butler County, Ohio is working with three Cincinnati area pizza parlors to add wanted posters of parents accused of skipping out on child support on pizza boxes.   Each box of pizza is plastered with a poster with the names, photos, and last known addresses of ten parents who are not paying court-ordered support, along with a toll-free number that pizza-eaters can call to report the deadbeat parent.

At least one attorney calls these tactics "horrible."  Maury Beaulier, who practices in Eden Prairie, Minnesota, says "It's just a way of shaming people."  He points out that there are many circumstances that can cause people to get behind in support payments, which doesn't make them deadbeats.

Michael McCormick, executive director of the American Coalition for Fathers and Children, believes that widespread public shaming can devastate the children.  "Think how children feel to see a parent on a wanted poster and know their friends might see it," he said.

Other states have implemented other creative ways to try to enforce child support orders.  Officials in Kern County, California can auction parents' vehicles and give the proceeds to the children.  Virginia subpoenas cell-phone records from service providers to aid in their collection efforts.  Other states have included fliers in water and sewer bills, using the same theory as with the pizza parlors.

Sources:  "Take A Slice Out Of Child Support" published at KTHV; "Wanted in Ohio: Two Pizzas and a Deadbeat Parent" published at Yahoo News; "Pizza Boxes Spotlight Child-Support Suspects" published at KLTV.

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This year, the deadline is April 17 for federal and state returns.

If you were recently divorced and are paying or receiving alimony under a divorce decree or agreement, you need to consider the tax implication for your 2006 federal income tax return.

Alimony payments received from your spouse or former spouse are taxable to you in the year you receive them. Because no taxes are withheld from alimony payments, you may need to make estimated tax payments or increase the amount withheld from your paycheck.

Alimony payments you make under a divorce or separation instrument are deductible if certain requirements are met. Any payments not required by such a decree or agreement do not qualify as deductible alimony payments.

Child support is never deductible. If your divorce decree or other written instrument or agreement calls for alimony and child support, and you pay less than the total required, the payments apply first to child support. Any remaining amount is then considered alimony.

For more information, go to www.irs.gov.

Source:  "Tax tip | Divorce Can Impact Taxes" published at The State.  Thanks to Warren R. Shiell of the Los Angeles Divorce and Family Law blog for his post about this article.

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Rhode Island family law attorney Christopher A. Pearsall recently published an article on his blog, which analyzed the concept of labeling "deadbeat dads."  I think that Mr. Pearsall's article is very insightful and causes one to pause to think about how that term is haphazardly thrown around.  Here is his article:

Deadbeat Dads is a term that I hear fairly frequently in my travels with countless cases before the Rhode Island family court. I’ve used the phrase myself on an occasion or two in order to get my point across to one judge or another when the facts support the proposition that the father is intentionally taking steps to avoid paying the child support ordered for the support of his children.

Unfortunately, this is a term that is often overused, misused and even abused both by attorneys and by mothers who are simply angered that they are not receiving the funds the court ordered for the support of the child or children regardless of the circumstances. If the truth be told, there is no real definition of a “deadbeat dad” as the phrase has been coined. Yet the term is thrown around not simply descriptively but with the intent to injure the father or otherwise taint the court’s opinion. There’s no doubt that just hearing the words “He’s a deadbeat dad.” conjure up a vision of a father is intentionally avoiding his obligation to his children.

It has not been, nor will it ever be acceptable to be a deadbeat dad, but who makes that call. In the Rhode Island Divorce and Family Court System it is presumably the judge of the family court. Unfortunately this phrase is normally flung out by an offended party long before the Rhode Island Family Court judge ever makes his or her ruling.

In truth, there are many fathers who are struggling, financially, personally, emotionally and mentally. Not surprisingly, there are also many women out there with a the mentality that it matters little what happens to a father as long as she receives the child support set by an arbitrary schedule of numbers created by a committee. This is by no means a rebuke of the Rhode Island Child Support Guidelines, which are a necessary framework for the operation of the family court system and the provision of child support for children. It is, however, a unique commentary on a woman’s expectation and entitlement mentality toward the child support which is for the child and not her personal enjoyment or support.

Just in the way that children are entitled to be supported by their parents, aren’t parents entitled to survive at a minimal standard and with the understanding that we all run upon tough times and that sometimes the rule of law should bend to the factual consequences of the human condition and a father who just might be a victim of circumstance.

Language can be hard, hateful and injurious on a personal and legal level. The next time you hear someone refer to someone else as a “deadbeat dad”, stop and think about what you have heard, consider the source, and make a conscious decision to determine for yourself whether there’s enough proof to justify such a harsh accusation.

Source:  "Deadbeat Dads . . . Overused and abused. . ." by Christopher A. Pearsall, published at his Providence Rhode Island Legal Solutions blog.

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The South Carolina Supreme Court recently issued a decision which addressed problems that can arise for both parties and their attorneys when dealing with multi-state child support issues.  Specifically, it addresses what can happen when two different states issue child support orders and the second one does not specifically nullify the first one.

In this case, the parties were divorce in California in 1986, and an order was issued there requiring the father to pay child support to the mother.  The father later moved to South Carolina, and the mother filed a support petition here pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), S.C. Code Sections 20-7-960 to -1170.

Prior to the hearing, the parties reached an agreement, and an Order approving their agreement was issued in 1990.  The SC Order referred to the prior California order but did not explicitly nullify it.  In 2003, the father was found in contempt of court here in SC for his failure to pay support pursuant to the 1986 California Order.  The father argued that the 1990 SC order modified the 1986 California order.

The problem the father encountered was that URESA contains an "anti-nullification clause" (found at S.C. Code Section 20-7-1110 states that a “support order made by a court of this State pursuant to this subarticle does not nullify and is not nullified by … a support order made by a court of any other state … unless otherwise specifically provided by the court.” 

Citing that statute, the Court of Appeals held that the 1986 California order remained independently enforceable in South Carolina because the 1990 South Carolina order did not indicate it was intended to nullify the California order.  The Supreme Court affirmed the Court of Appeals' decision on that same basis.

You can read the full text of SCDSS v. Martin by clicking HERE.

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Breaking with every other state that has considered the issue, the New Hampshire Supreme Court recently held that employer-provided housing, vehicle, and receipt of other in-kind benefits were not includable in "gross income" under its child support guidelines for purposes of calculating a child support obligation.  The Court found that since these benefits were not paid in money, they did not share one of the primary attributes of items listed as "gross income" in the guidelines. The receipt of such items may be considered as the special circumstances and be sufficient cause for deviation.  You can download a copy of In re Clark by clicking HERE.

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