Category: Child Support

Can Working Parents Get Child Custody over a Stay Home Parent and There’s Good Coronavirus Information

Roughly 18% percent of parents in America stay home to raise their children, and a majority of parents are working outside the home. Does working outside the home weaken your chances to be awarded child custody over the stay-at-home parent? A Michigan court just answered that question. There’s also some good coronavirus information.

Working Child Custody

Custody in the Mitten State

In a recent Michigan case, a family judge found that a child had an established custodial environment only with the mother, Sarah, largely because Sarah “was the stay at home mom while the parties were together” and the child “is with her the majority of the time.” The other mother, Bridget, had her timesharing reduced because she worked outside the home.

Bridget and Sarah married in April 2014. They had a child using Bridget’s egg fertilized with a sperm donor and implanted in Sarah. Bridget and Sarah agreed that Sarah would stay home to raise their child while Bridget worked as a canine officer with the Eastern Michigan University Police Department.

Bridget and Sarah’s relationship began to deteriorate after the child’s birth. Money was tight and Bridget claimed that Sarah rejected Bridget’s requests that she return to work. Sarah, on the other hand, accused Bridget of belittling her role as a stay-at-home parent.

Bridget worked overtime when possible and was sometimes required to travel for work events. Bridget’s absence put a strain on the relationship. Eventually, the couple’s arguments, suspicions, and verbal mistreatment of each other took its toll and Bridget filed for divorce.

Bridget testified that during their marriage, both she and Sarah served as “primary caretaker[s]”. Bridget asserted that she “picked [her] shift at work to make it so that [she] could have the most amount of hours with the child during the day as possible.

Ultimately, the court awarded sole legal and physical custody to Sarah, with “reasonable rights parenting time” to Bridget. The court considered the best-interest factors in favor of Sarah.

In the best interest analysis, the court expressed a decided preference for Sarah as the stay-at-home caretaker because Sarah “has closer parental and emotional ties to AB than does Bridget by virtue of being able to spend significantly more time with her.

Florida Child Custody

I’ve written about child custody before – most recently about problems with the outbreak of the coronavirus pandemic. Unlike Michigan for example, Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

Similar to Michigan’s statute, in Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include similar language, The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, and the demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

Bingo Bango

The family court in Michigan held that changing primary physical custody to the working parent would destroy the established custodial environment with the non-working parent. Conversely reducing the working parent’s time sharing was not such a drastic change that it would destroy the established custodial environment.

The appeals court reversed, finding that the family judge erroneously weighed the best interest factors  in the stay at home parent’s favor by finding she “has closer parental and emotional ties to [AB] than does the working parent by virtue of being able to spend significantly more time with her.”

The court also reversed because the judge concluded the non-working parent will enable her to be far better able to provide her with love, affection and guidance than the working parent, who spends much of her days at work.

The fact that the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child.

Despite treating Bridget as a less viable parent because she chose to work outside the home, the court declined to credit Bridget for her ability and willingness to earn an income and provide health insurance for her child.

Good Coronavirus Information

The practice of quarantine began during the 14th century to protect coastal cities from the plague. Ships arriving in Venice from infected ports were required to sit at anchor for 40 days before landing. This practice, called quarantine, was derived from the Italian words quaranta giorni which mean 40 days.

After more than 40-days in quarantine, Florida and other states are ready to disembark and dip their toes into re-openings. Re-openings will happen mostly in stages in line with recommendations from many health experts and economists.

The big concern at this point is, as we creep back to normal, are which activities create the risk of a rebound?

Dr. Anthony Fauci estimated that the country is conducting approximately 1.5 million to 2 million Covid-19 tests per week, and it is likely the testing capacity could be doubled within the next several weeks.

Careful planning to manage the virus is crucial because it will likely still be one to two years before a coronavirus vaccine is developed and ready for large-scale production.

The Michigan appellate opinion is here.

 

Brazilian Child Support Fraud

Who pays child support when the two potential fathers are identical twins? With the wisdom of Solomon, a judge recently made a quick decision to avoid a child support fraud case.

Girl from Ipanema

A judge in Brazil was stumped. He had ordered a pair of identical twins to take DNA tests in a paternity case in the central Brazilian state of Goiás. Both father’s came back positive for paternity.

Neither man would admit who fathered the girl at issue. Her mother had turned to the courts seeking financial support for the child, who was born after a casual fling.

The woman said she could not say for sure which of the two men she had slept with.

So, Judge Filipe Luis Peruca opted to punish both twins. In a ruling made public on Monday, he chided the men for acting in “bad faith” and ordered that each pay child support for the girl, who is now 9.

Florida Paternity Tests

The problem of child support fraud is not limited to Brazil. A DNA test can answer almost all questions about paternity, but there is one situation where DNA paternity testing may not give answers: when the two alleged fathers are identical twins.

Identical twins share identical DNA, so a standard DNA test cannot identify which of the twins is truly the biological father of a child.

However, each twin father will have a few mutations in his DNA that are unique to him. A full DNA test will find spots on the DNA that one twin shares with the child but not with the other twin.  With enough of these, the child’s DNA will be a better match to the twin that is her dad.

But Florida’s standard paternity test cannot tell the difference because the test relies only on 15 or so markers for comparison. A more comprehensive test – that looks at billions of markers – will find the unique markers proving which identical twin is the real dad.

Florida Child Support

Establishing paternity is an important first step in before calculating child support. I’ve written about child support issues in Florida before. Calculating child support in Florida used to be entirely at the judge’s discretion, based on a parent’s ability to pay, and the child’s needs.

Florida established child support guidelines which follows the income shares model. The guidelines provide the amount you pay can be adjusted upward or downward after considering relevant factors.

Additionally, the statute authorizes deviations by more than 5 percent, pursuant to a list of 10 enumerated factors, and one equitable factor. Finally, the statue mandates use of a gross-up calculation of support for substantial time-sharing.

In Florida, parents are allowed a gross-up calculation because when exercising substantial time-sharing, they incur their own child care expenses, and may duplicate payment for items already included in their child support.

Without adjustments for substantial time-sharing, parents can be paying twice for a child’s expense, making time-sharing prohibitively expensive. Accordingly, in 2008, the statute was amended to expand the meaning of substantial time-sharing to equalize the child support obligation.

Brazilian Samba or Saga?

The mother, whose name is redacted in court documents, initially sought financial help from just one of the twins, whose identities were also not disclosed.

When a DNA test came back positive, that man denied being the child’s father. The court then ordered that his twin brother undergo a test. When that test also came back positive, neither man would acknowledge being the father.

Judge Peruca, who is based in Cachoeira Alta, a small municipality in an area where cattle farms are the dominant industry, wrote in his decision that the men’s child support fraud was part of a long pattern of deceit.

“It’s evident that the defendants, from adolescence, took advantage — and continue to take advantage! — of the fact that they are identical twins . . . they used each other’s name to attract as many women as possible and hide instances of betrayal in their relationships.”

The judge ordered that the names of both men be added to the child’s birth certificate. He also ordered each man to pay the woman 30 percent of a minimum wage in Brazil, and they must collectively cover 50 percent of the child’s school and medical expenses.

The New York Times article is here.

Winning Child Support Modification

If ‘money talks’, actor Charlie Sheen is talking a lot about how he can no longer afford child support after being “blacklisted” in Hollywood, according to court documents obtained by People and Us Weekly. What would the entertainer have to prove to get a child support modification in Florida?

child support modification

Defeat is not an option

The “Two and a Half Men” star, 52, filed requests to modify his child support payments to ex-wives Denise Richards and Brooke Mueller, the news sites report.

Sheen shares twin sons, 9, with Mueller, to whom he was married between 2008 and 2011; and daughters 14, 13, with Richards. That marriage lasted from 2002 to 2006.

Florida Child Support

I’ve written about child support issues before. For famous actors such as Sheen, and other high-income parents, the child support guidelines can award support far exceeding any child’s needs.

Because of this problem, the guidelines expressly provide the amounts can be adjusted upward or downward. Florida allows deviations by up to 5 percent after considering relevant factors. And the statute authorizes deviations by more than 5 percent, pursuant to a list of enumerated factors.

Not on Wall Street Anymore

Sheen’s case is ironic: the famous and flamboyant actor – surrounded by “goddesses”, infused with “tiger blood”, and bragging about “winning”, claims he can’t afford his child support payments.

If Sheen is asking for a modification of his child support, he would have to prove a substantial change in circumstances, the change was not contemplated at the time of final judgment, and the change is sufficient, material, involuntary, and permanent in nature.

Courts will also want to know whether Sheen is voluntarily reducing his income by failing to use enough effort to find work commensurate with his acting abilities.

There’s also the added problem of his flaunting his wealth. Media reports on Sheen have always shown him flaunting an extravagant hedonistic lifestyle.

“I’m bi-winning. I win here, I win there!”

The USA Today documents also reportedly reveal Sheen’s reasoning behind his “dire financial crisis” with less than $10 million to his name.

“I have been unable to find steady work, and have been blacklisted from many aspects of the entertainment industry,” he alleges in the filings. “All of this has resulted in a significant reduction in my earnings.”

In addition to child support payments, the documents show Sheen is “past due” on payments to his home mortgage and pool and gardening services.

The USA Today article is here.

 

Gimme More Child Support

The divorce of Britney Spears and Kevin Federline has been toxic, but could be made worse because he is rumored to be strapped for cash and seeking more child support. How is child support calculated when one parent is super wealthy and the other is not?

Oops I did it Again

Federline, aka “K-Fed”, has asked a judge to increase the $20,000 per month child support payment he receives from Britney. The father is claiming their 2 kids enjoy a lavish lifestyle with her, but all he can provide them with is a lifestyle that is relatively meager.

Federline also is rumored to claim the kids go on 5-star vacations, they have every toy imaginable, a lighted tennis court, all because he claims she makes $34 million a year, while he only pulls in $3,000 per month.

How do the child support guidelines work when one parent makes millions and the other only makes a few thousands?

Florida Child Support

High income parents have special problems in determining child support. Courts are reluctant to award child support that is deemed “excessive,” but the courts are bound by child support guidelines which set a presumptive amount of support.

To make matters worse, research suggests that child support guidelines themselves are flawed in setting support for the high income parent.

I wrote an article about some of the problems with Florida child support. For example, Florida guidelines follow the income shares model. The guidelines are are regressive, so poorer parents pay a larger share of income than wealthier parents.

Good Fortune Child Support

For high-income parents, the guidelines can award support far exceeding any child’s needs. Also, Florida’s guidelines have never been updated, so they are based on the cost of goods as they existed in the 1970s.

Because of these problems, the guidelines expressly provide the amounts can be adjusted upward or downward. Florida allows deviations by up to 5 percent after considering relevant factors. And the statute authorizes deviations by more than 5 percent, pursuant to a list of enumerated factors.

There are some circumstances under which a court may divert more substantially from the child support guidelines. Good fortune child support can be awarded in cases in which one parent is very wealthy.

Courts have determined that children of such parents deserve to benefit from that parent’s wealth and success, especially since they would enjoy such benefits if the parents were married.

Some of the benefits to a child born to a wealthy parent can include private schools, travel, and other special activities above and beyond basic necessities.

Additionally, Florida has allowed courts to order savings and trusts for the children of a wealthy parent, even if they reside primarily with the other parent.

Make Me

One Britney source with direct knowledge of the situation tells TMZ:

Britney spends no more on the boys than he does. He’s barely getting by because he has to support 3 additional kids and his wife and himself on funds Brit gives him for their 2 kids.

The source also reportedly said, “The law is that both parents are to contribute to their children’s support. Where is his contribution?” Federline says his expenses are around $23,000 a month. So, when you add up his earnings and Britney’s $20,000 per month, he currently breaks even.

The TMZ article is here.

Photo credit  CC BY-SA 2.0

International Child Support

The Israeli Supreme Court ruled this week that divorced mothers will have to share the financial burden of child support with the fathers if their salaries are equal, or the woman’s is higher and children are in joint custody. This brings Israel into line with Florida law on the matter.

The Israel Case

Until now, men have been required to pay child support to their ex-wives even in situations of joint custody when the mother earned more than the father.

According to the Jerusalem Post, the ruling was given in response to an appeal by two divorced men whose ex-wives earned higher salaries than they did but who were still required to pay child support even though their children were in joint custody.

“The exclusive obligation of the father for child support payments and the exemption granted to the mother is not directly affected by the question of child custody,” wrote the justices.

The current law – requiring the father alone to pay for essential needs in child support – is likely to leave the father without the necessary resources to guarantee the welfare of the child and his well-being when he is staying with him, and also causes financial difficulties [for the father] himself.

The justices agreed with the claim of the two fathers that current law discriminates against men in not taking into account situations in which there is joint custody.

Florida Child Support

I’ve written about child support issues in Florida before. Calculating child support in Florida used to be entirely at the judge’s discretion, based on a parent’s ability to pay, and the child’s needs.

Florida established child support guidelines which follows the income shares model. The guidelines are far from foolproof, but do provide the amounts can be adjusted upward or downward. The statute allows deviations by up to 5 percent after considering relevant factors.

Additionally, the statute authorizes deviations by more than 5 percent, pursuant to a list of 10 enumerated factors, and one equitable factor — the colloquial “catch-all” exception. Finally, the statue mandates use of a gross-up calculation of support for substantial time-sharing.

In Florida, parents exercising substantial time-sharing incur their own child rearing expenses when they time-share, and are duplicating payment for items already included in their child support.

Without adjustments for substantial time-sharing, parents can be paying twice for a child’s expense, making time-sharing prohibitively expensive. Accordingly, in 2008, the statute was amended to expand the meaning of substantial time-sharing to equalize the child support obligation.

Back in Israel

Attorney Amir Shai, who represented one of the fathers, described the ruling as one of the most important decisions of the last decade. “From now on, the discrimination by which only fathers have to financially support their children will end,” said Shai.

Children in Israel now have two addresses which must take care of them, as in any normal country. It’s reasonable to expect that tens of thousands of fathers will now flood the courts with requests to adjust their child support payments in accordance with this ruling in the coming months.

The Jerusalem Post article is here.

 

Gifted Children Can Cost You in Child Support

Every parent wants their children tested for gifted programming. But parents going through divorce may find that a gifted child could cause them to pay additional child support to develop their child’s talent.

A couple just found out that gifted children can cost more in a divorce. A New Jersey family court recently judge ruled that basic child support payments, which usually cover the costs of a child’s extra-curricular activities, may not be enough to help advance a child’s potential.

In the New Jersey case, the mother of the teen – referred to as Julie in the judge’s decision – asked her ex-husband to pay half of their daughter’s costs of pursuing an acting career, including clothing, travel, make-up, dues and coaching. Her former husband objected, insisting those expenses are covered by the $113 he pays in weekly child support.

I’ve written about child support in Florida before. In Florida, a court may adjust child support based upon deviation factors, which can include things like:

(1)  Extraordinary educational expenses, and

(2)  Meeting special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the presumptive amount established by the guidelines.

The New Jersey Judge said:

While New Jersey’s child support guidelines say those costs generally are covered in basic child support, the guidelines also say additional financial support can be ordered to help pay for costs related to developing the special needs of a gifted child.

Courts generally recognize children’s special gifts in the areas of academics, athletics, technology and the arts. Determining giftedness can be slightly more difficult in the arts because an actor’s performance can be subjective – “mesmerizing” to some and “stale as a bucket of overpriced popcorn” to others.

He said it isn’t enough to have an “expert” testify to the giftedness of a child because the child may have extreme talent but may not have the drive, discipline or commitment to achieve that greatness.

“In this case, Julie demonstrates such an unusually heightened desire and ability, through her attitude, her confidence, and her willingness to work hard and commit,” Jones wrote. “In this respect, she is in fact a gifted child.”

The judge ordered Julie’s father, who earns about $33,000 annually, to pay an additional $5 a week toward her theater activities. Julie lives with her mother, who earns about $23,000 a year and who will also have to set aside $5 a week to pay for those additional activities, Jones said.

The New Jersey article is available here.

A Hague Convention for Child Support

fsBy The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, September 21, 2016.

Enforcing child support overseas just got easier. President Obama just ratified the Hague Convention on International Recovery of Child Support.

The official statement by NSC Spokesperson Ned Price on The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance.

I’ve written about child support issues before. My timesharing child support article is now cited as a resource in the Child Support Benchbook. The Benchbook helps judges and magistrates hone courtroom practice and decision-making, by keeping them informed by state-of-the-art science, best practices used nationwide, and knowledge.

While the United States has child support enforcement well in hand, the same has not been true in other countries. This Convention is intended to remedy non-support cases where the payer of support resides in a foreign country and fails to provide court-ordered child support.

The Convention’s purpose is to assist custodial parents in enforcement proceedings in their state courts for collection of financial support due from parents residing outside of the United States.

The Convention accomplishes this by:

a) establishing a comprehensive system of co-operation between the authorities of the Contracting States;

b) making available applications for the establishment of maintenance decisions;

c) providing for the recognition and enforcement of maintenance decisions; and

d) requiring effective measures for the prompt enforcement of maintenance decisions.

The Convention applies to:

a) obligations arising from a parent-child relationship towards a person under the age of 21 years;

b) enforcement of a decision for spousal support when the application is made with a claim within the scope of sub-paragraph a); and

c) spousal support.

A list of countries which have ratified the Convention is here.

Timesharing & The Child Support Benchbook

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Friday, August 5, 2016.

The Benchbook is important reading for judges, covering a variety of areas of law. My timesharing child support article is now cited as a resource in the Benchbook.

benchbook-thumb-450x216-74365

The Office of the State Courts Administrator serves under the Florida Supreme Court, and publishes Benchbooks for the judiciary. The Benchbook helps judges and magistrates apply federal and state law, Florida rules of court, and case law to their cases.

The Benchbook helps judges and magistrates hone courtroom practice and decision-making, by keeping them informed by state-of-the-art science, best practices used nationwide, and knowledge.

My article, To Catch a Time-sharing Deviation, which was published in the Florida Bar Journal, is now listed as a helpful resource in the Child Support Benchbook for judges and magistrates.

Florida policy is to see that children have frequent and continuing contact with both parents after they divorce or separate and that parents share in childrearing. Child Support Guidelines historically frustrated this policy and, in fact, discouraged time-sharing.

For example, they previously did not allow a child support adjustment unless a parent spent at least 40 percent of the overnights with his or her children. In Dept. of Rev. ex rel. Sherman v. Daly, the Department of Revenue appealed a child support order because it contained a child support deviation for a verbal time-sharing schedule.

In Daly, both parents testified they shared a roughly 60/40 time-sharing schedule. However, they never put their agreement into writing. The First District Court of Appeal held Florida law prohibited the deviation.

After the 2011 Daly decision, a number of parents had their time-sharing deviations taken because they lacked court-ordered parenting plans. During the recent 2014 regular legislative session, H.B. 75543 was passed and amended §61.30. The new bill revises the circumstances in which a court may deviate from the child support guidelines and adjust child support.

The bill became effective on May 12, 2014, and applies to all actions pending on May 2014 and thereafter. As amended, §61.30 now expressly allows a court to deviate from the child support guidelines based on time-sharing arrangement exercised by agreement of parents.

My Florida Bar Journal article is here.

Florida’s OSCA website with the Benchbook is here.

Hurt Locker: Private School & Support

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, July 27, 2016.

Can courts order payment of private school tuition as support? “Hurt Locker” star, Jeremy Renner, is finding out. His Ex says it’s mission impossible to get him to pay.

Renner’s ex-wife claims he is behind more than $48,000 in child support for the couple’s daughter Ava, according to court documents obtained by TMZ. The documents also allege the “Mission: Impossible” star refuses to pay Ava’s $1,600 per month preschool tuition, TMZ reports.

However, the actor adamantly denies the accusations, calling them “baseless and completely erroneous,” his rep told the Daily News.

Renner and Pacheco finalized their divorce in 2015 after eight months of marriage. In December, Renner was ordered by a judge to pay $13,000 per month in child support. The pair has joint custody of the little girl.

I’ve written about private school tuition and college expenses, as a form of support before. In Florida, an award of a child’s private school expenses is in the judge’s discretion, and has to be requested in pleadings.

Generally, a Florida court may order a parent to pay for private educational expenses if the court finds that the parent has the ability to pay for private school, the private school expenses are in accordance with the family’s customary standard of living, and it is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of private school tuition, a judge will review the evidence you present, and make a decision.

If going to court becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

The New York Daily News article is available here.

Child Support for College Kids

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Monday, May 9, 2016.

An Italian court ordered a father to support his 28-year-old son. The Italians call it “Bamboccioni” – spoilt big babies. Must Florida parents pay child support to a 28-year old “child”?

According to Britain’s Telegraph, the Italian father went to court protesting supporting his adult son. He was challenging a term of his divorce settlement, that said he must pay for tertiary education.

The son completed his degree in literature, taking several years longer than expected to finish the course, and enrolled in a post-graduate course in experimental cinema in Bologna.

The father argued that his son should get a part-time job and start paying his own way. But the civil court ruled that the cinema course is in keeping with the son’s “personal aspirations” and must be paid for by his father.

Around 65% of Italians aged 18 to 34 still live with their parents, the highest percentage of young stay-at-homes anywhere in Europe.

The problem of adult children taking their parents to court for money is so acute that the Italian Association of Matrimonial Lawyers has called for an age limit to be set by the Supreme Court in Rome.

I’ve written about parents having to support their children into adulthood before. In Florida, the duty to provide support for a child is based upon the child’s incapacity and the child’s need of protection and care.

A parent’s legal duty to support his child usually ends at the age of majority – 18. But, a parent will still owe a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.

Recently, Florida’s child support statute was changed to require all judgments awarding child support to include a provisions stating that child support will terminate on the child’s 18th birthday unless the court finds otherwise, or it is otherwise agreed to.

To extend support beyond age 18, there must be a child who is dependent due to mental or physical incapacity that began prior to age 18; or the child has reached 18, is still living at home, attending high school, and reasonably expects to graduate high school before age 19.

The difficult question is what kind of mental or physical incapacity justifies an extension of child support. If a child lives at home and is suffering from a mild physical disability or a moderate psychological disorder, would that be severe enough? Obviously, Bamboccionis are not going to justify the award.

The Telegraph article is here.