Child Support Guidelines Issues

Agenda

• Parenting Time Order v. Actual Overnights• Adjustment for supporting other children (2009

CFSC)• Multiple/simultaneous requests for modification of

multiple orders• Imputing Potential Income (child under 30 months)• Imputing Potential Income; General Rules• Credit for Health Insurance paid by non-parents

Parenting Time Orders v. Actual Overnights

Questions/Issues:• When calculating a child support order,

should you follow the terms of a parenting time order (PTO) or should you use actual overnights?

• Does it matter if there is an agreement or dispute on the number of overnights?

Statutory Authorities

• Guidelines Statute:

Section 14-10-115, C.R.S. refers to “overnights”, “physical care” and “physical care arrangements” but never refers to a “parenting time order”

• Parenting Time/Parental Responsibility Statutes:

These statutes do not provide that they determine child support calculations

Applicable Guidelines Statute Sections

• 14-10-115(1)(b)(III), C.R.S.: child support allocated upon physical care arrangements

• 14-10-115(3)(h), C.R.S.: Shared physical care is defined as when each parent has the child at least 93 overnights per year and both contribute to the support of the child in addition to payment of child support

Applicable Guidelines Statute Sections

• 14-10-115(3)(h), C.R.S.: Split physical care is defined as when each parent has physical care of at least one child, meaning that child resides with that parent the majority of the time

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Case Law• Case law states that parenting time has to

do with custody and overnights have to do with child support; they are 2 different issues

• Leading cases Barry (unpublished) and Emerson (published)

• Child support is based on actual overnights and not a parenting time order

• See handout with list of cases

What if the parents agree to overnights different from a

Parenting Time Order?•If they agree to the number of overnights or agree to facts supporting use of certain overnights, use that number for overnights

•Encourage the parents to seek legal advice/contact the court on modification of the parenting time order

So what if the parties do not agree on the number of

overnights?• Modification: Use the number of overnights

on the existing order for the proposed order. The parties can “agree to disagree” and the current MSO (based on current overnights) will remain in effect until the court hearing

• Establishment: Consider all evidence of overnights (including an existing parenting time order) and use best judgment. A temporary order can always be entered

Things to Consider•If the parents recently obtained an initial PTO (i.e.. divorce), or a modified PTO, consider using that order to determine overnights

•This is because there has not been sufficient time to develop a different overnight arrangement since the PTO was entered

•If there is still a dispute, they should appeal the recent Parenting Time order

ResourcesParenting time Order

v Overnights

• 15-10-115, C.R.S.

• Case Law (See handout

for list of cases)

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Adjustments for Supporting Other Children

• Presentation at the • 2009 Colorado

Family Support Counsel

(sign up for e-mailed copy)• Quick review

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Two ways to Obtain the Adjustment

• Supporting a child with a child support order (use amount actually paid up to the MSO amount)

• Supporting a child without an order (the adjustment amount is calculated at 75% of the amount that a parent would pay if a child support order existed, using only the basic schedule of support, low-income adjustment and minimum order formulas and no other adjustments/credits

Adjustment without an Order

If there is no support order, a parent may obtain this adjustment in 2 different ways:

1. Child resides inside the home, or 2. Child resides outside the home

Requirements to Obtain the Adjustment

• Whether the child lives in or outside the home, the parent must show that he/she has a legal obligation to support the child (no step-children)

• If the child resides out side the home, the parent must also provide documentation of money payments sent to the caretaker of the child

Calculating the Adjustment Amount

•ACSES will calculate the adjustment amount.

•The formula is the same in both situations (child residing inside and outside the home)

•You must only enter the number of children for whom this adjustment is sought

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Multiple Requests for Review/Modification of Multiple

Orders

• Must properly handle any and all valid requests for review

• A valid request for review may or may not result in a modification of the order

• Requests for review submitted at different times should be handled in the order received

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Things to Consider Reviews Initiated by the County

CSEU / Mandatory Reviews

• Effective 1-1-09, a county child support enforcement unit may initiate a review without having to receive a request from an obligee or obligor

• Cases with an active assignment of rights must be reviewed every three years

Multiple and Simultaneous Requests for Review of Multiple

Orders

How to Handle?

• Statutory Law: None

• Case Law: None

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Multiple and Simultaneous Requests for Review of Multiple

OrdersThe Problems:• Adjusting one order, may or may not effect the

adjustment of other orders• Adjustments effecting other (maybe all) orders:

changes in income, qualifying expenses actually paid, extraordinary medical expenses incurred, change in overnights

Multiple and Simultaneous Requests for Review of Multiple

Orders

The BIG problem:

Where does it stop if modifying the first order effects the second order, which effects the third order, which effects the first order….?

When modification of one order Does Not (automatically) effect

Other Orders• Modifying the amount of monthly support

obligation (MSO) of one order does not immediately effect other orders because the adjustment is given for the amount actually paid on a child support order, not just what is ordered

• This is also true for any adjustment based on the amount actually paid, even if the ordered amount has changed (i.e., health insurance, extraordinary medical, etc)

What does that Mean?

• You must have documentation of actual payment of a different MSO amount of one order for any adjustment to effect what is currently given on another order

• This will usually mean at least a month delay in one order truly effecting calculation of another order

But what if there is a simultaneous effect on multiple

orders? • Use best judgment (but handle all requests

appropriately) • Do one round of adjustments then stop• Advise the parties of this procedure• A party can always request court review• Consider referring all cases to court for

consideration at one time

Effect of Physical Care of child under 30 months on Imputation

of Potential Income (parent has reduced work hours

to care for the child)• Statutory Authority:

Section 14-10-115, C.R.S. states that potential earnings shall not be imputed if a parent is caring for a child under 30 months if both parents of the order have a joint legal obligation to support that child

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Child Under 30 Months (cont.)

• However, if the parents of the order do not share joint legal responsibility to support the child, consider imputing potential earnings if appropriate

• The above rule applies in caretaker relative and foster care placement fee cases

Imputing Potential EarningGeneral Rules

• Impute potential earnings if voluntarily unemployed or underemployed

• Except, do not impute if Sections 14-10-115(5)(b)(I) or (III)(A-C), C.R.S. apply

• Review handout on imputing potential earnings (statutory and case law)

Credit for Payment of Health Insurance Premiums

• A party may obtain a credit for paying health insurance premiums of a child of the order if he/she or their spouse pays the premium

• No credit can be given if any other third party pays the premium (like the CP’s or NCP’s employer or other relative)

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Resources(Handout – Internet Sites)

• Section 14-10-115, C.R.S (General Assembly website)

• Procedure 7.5 (CSE website/Worker Resources/Manuals and Procedures/P & E)

• APA Manual (CSE website)

• Review and Adjustment Manual (CSE website)

Questions?

Thank You!

Robert Kurtz

303-866-4459

Robert.Kurtz@state.co.us