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Handbook on Child Support Enforcement
Answers to Your Questions
Department of Health and Human Services
IX. NONCUSTODIAL PARENTS' RIGHTS AND RESPONSIBILITIES
Both research and observation give clear and convincing evidence that children benefit greatly if both parents are actively involved in their lives. It is critical to children as they grow and develop. Bringing a child into the world means making a commitment to care for him or her throughout childhood – ensuring the best possible environment to grow in. Children need safe places to live, nourishing food, education, and a solid foundation of values. Mothers and fathers bring different, but equally important, qualities to their children. In a divorce or non-marital situation, either parent may be granted custody of the child -- or both may share equally in the physical custody and/or decision-making responsibilities.
Because traditionally men are less likely to have custody, and because the role of fathers is so important, the Department of Health and Human Services (HHS) has established a Fatherhood website at: http://fatherhood.hhs.gov/index.shtml
A noncustodial parent can apply for child support services if the case is not being enforced through the Child Support Enforcement (CSE) program, unless the support order requires you to pay her directly. Since January 1994, support orders must include a provision for income withholding unless both parents and the courts agree on another payment method. If your order does not call for income withholding, you can request this service. If you do, you will have a record that you have made payments as required. If you are self-employed, you may be able to arrange for an automatic transfer of funds to the child support agency through electronic funds transfer (EFT). Either parent can apply for CSE services, which include collecting and distributing payments.
I'm the noncustodial parent. I love my kids. I pay my child support. About half the time when I go to pick them up for my weekend, my ex-wife has made other plans for them. It's not fair that the state will enforce my child support obligation but not do anything about my right to see my kids.
Although the CSE Program lacks authority to enforce visitation, many state or local governments have developed procedures for enforcing visitation orders. Also, the Federal government has made funding available to states for developing model programs to ensure that children will be able to have the continuing care and emotional support of both parents. Check with your local CSE agency and clerk of court to see what resources are available to you and to find out about laws that address custody and visitation.
Either parent can request a review, and adjustment, if appropriate, of a child support obligation at least every 36 months, or sooner if there has been a substantial change in circumstances such as reduced income of the obligated parent or a change in medical support provisions. Check with your CSE office to see if your child support obligation is in line with state guidelines and ask how to request a review.
If your case does not meet the state's standards for review, either because the order has been reviewed within your state's review period or the change in income is smaller than would merit an adjustment under state standards, you may still be able to petition the courts for a hearing. In this case, it may be helpful to have the services of an attorney. Your local legal aid society may be able to advise you about finding low-cost counsel if you cannot afford a private attorney. Also, a number of states have information about how to handle your case pro se (a legal term for representing yourself) to have the courts determine if your support obligation should be changed. Contact your local CSE office or the clerk of the court for more information.
The amount that can be withheld from an employee's wages is limited by the Federal Consumer Credit Protection Act (FCCPA) to 50 percent of disposable income if an obligated parent has a second family and 60 percent if there is no second family. These limits are each increased by 5 percent (to 55% and 65%) if payments are in arrears for a period equal to 12 weeks or more. State law may further limit the amount that can be taken from a wage earner's paycheck.
One of the services of the Office of Child Support Enforcement is helping to locate children in parental kidnapping cases. Federal law allows the use of the Federal Parent Locator Service (FPLS) in parental kidnapping or child custody cases (including cases in which the custodial parent has hidden the child in violation of a visitation order) if: 1) a civil action to make or enforce a custody order has been filed in the state courts; or 2) a criminal custodial interference case is being investigated or prosecuted.
Requests for information from the FPLS in custody and parental kidnapping cases must come from a state CSE agency. State CSE agency telephone numbers and addresses are at: http://www.acf.hhs.gov/programs/cse/extinf.html (English) http://www.acf.hhs.gov/programs/cse/fct/hispanic.htm (Spanish).
State CSE agency web site links are available on our web site at: http://www.acf.hhs.gov/programs/cse/extinf.html
States may collect a fee from people using the service to cover processing costs.
If you have received papers naming you as the father of a child, and providing information about attending a hearing, contacting the CSE agency or some other tribunal, or other action that you must take, it is very important to follow up as required by the document you received. Check with the CSE agency to see how to request genetic testing, or to learn about paternity establishment in your state.
There are cases in which a man can be determined to be the father of a child if he was “properly served” notice of a paternity hearing but did not go. What constitutes “proper service” is determined by the state – it may be in the form of a registered letter, a notice delivered to the person's legal residence, or even a notice published in the newspaper. Check with the CSE agency in the state where paternity was established to see what can be done. If the paternity was established by fraud, duress, or material mistake of fact, it may be possible, depending on state law, to challenge the paternity finding.
Also, there are cases in which the alleged father is misidentified – if names are closely similar, for example. There, too, your best information about resolving this will come from the state CSE agency. Contact information is at the end of this Handbook if it was not provided in the notice that you received about the paternity.
Emancipation and the age of majority for termination of child support are determined by the states. Some states have provision for child support payments while a child is in college.
You can also check with the state CSE agency. Telephone numbers and addresses are listed.
For particular situations -- if a child leaves school before reaching the age of majority, is still in school but is emancipated, or is enrolled but not attending classes, for example -- check with the child support agency to see how the state handles them.
If a child is handicapped, parents may be required to pay support after that child becomes an adult. Also, if a child was determined to be disabled before reaching the age of majority, states can still collect arrearages through tax refund offset.
Under domestic relations tax provisions set forth by the Internal Revenue Code, for divorced or separated parents, the parent who has custody for a greater portion of the calendar year is entitled to the dependency exemption for the child (See 26 U.S.C. 152(e). In some cases, a court or administrator will address the issue of who can claim the dependency. Also, the parent with custody can provide the other parent with a written statement that he/she may take the exemption for a given year. The noncustodial parent can then attach the statement to the income tax form, using IRS Form 8332, and claim the child(ren) as dependents for a given tax year. To obtain IRS Form 8332 and other IRS Forms and Publications, visit the IRS Web site at http://www.irs.gov/formspubs/index.html
In the case of parents who have never married, the IRS gives information about who can be claimed as a dependent in their Form 501:
Generally, that would be a child for whom you had provided more than 50% of the support over the year.
If a couple filed a joint return and only one of them is liable for child support payments, in non-community property states the other spouse can file an amended return to receive his or her share of the tax refund. The person who is not responsible for the child support debt can file tax Form 8379, the Injured Spouse Claim and Allocation. You can get Form 8379 by calling the IRS (listed in your telephone directory) or by visiting the Treasury Department's website at: http://www.irs.gov/. Follow the instructions on Form 8379 carefully and provide the required documents.
If you do not know which state certified your case, or if you have never owed back child support, check the list provided with the Department of State denial letter for the contact information it gives for the state where you currently live. If you don't have the list, staff in the state agency can check with the Federal Office of Child Support Enforcement to see which state certified the case and can get you contact information for resolving any problem. State agency addresses and telephone numbers are listed.
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