Establishing Child Support Obligation
Ordering Child Support When There is a Change in Placement
What happens when the parent with the majority of the time-sharing is changed and no child support order was entered?
- Failing to address child support matters when changing the placement of a child causes significant problems. Ideally, when the court determines that a change in the majority of the time-sharing from one parent to the other parent is required, the court should terminate the child support obligation of the former payor parent (except arrears), and order appropriate child support payments to the parent with the majority of the time-sharing. In the absence of a court order for child support, one parent does not have a legal obligation to pay child support to the other parent. However, when the child support matter is corrected, the obligated parent may be required to repay any established arrearages.
- If the child is placed with someone other than a parent, as in a dependency case, then both parents should be ordered to pay their appropriate share of child support to the child’s new custodian. If the child was placed with one parent at the time of such a change in placement, then the former parent who received child support should be ordered to pay child support to the new custodian. The former payor parent’s child support obligation should be recalculated, modified as necessary, and redirected to the new custodian. Section 409.2564(12)(a), Florida Statutes, provides an expedited procedure for the Department of Revenue to redirect child support from one payee to another payee.
Child Support Orders in Domestic Violence and Dissolution Cases
How should one reconcile a child support order in a domestic violence case with a child support order subsequently entered in a dissolution of marriage case?
The order in the dissolution case is controlling. The court should also reconcile the two accounts in the resulting order.
Child Support in Dependency Cases
Can a dependency court issue a child support order or suspend child support (consistent with the current placement of the child)?
Yes. A dependency court has jurisdiction over all child support matters including whether to suspend or modify child support obligations consistent with its placement of the child.
(Note: A thorough examination of promising practices used to determine child support in dependency cases can be found in the Dependency Benchbook.)
Crediting Established Arrears When There is a Change in Placement in a Dependency Case
Can the dependency court award credit towards established arrears when the child is placed with the parent who is in arrears?
Probably should not because child support, once due, is the vested right of the payee on behalf of the child. If a previously delinquent parent is awarded temporary custody of the child in a dependency case, the dependency court probably should not award that parent a credit towards his or her child support arrearage. The more appropriate procedure would be for that parent to pursue a modification of support.
Retroactive Child Support in Dependency Cases
Can the dependency court retroactively order support to the date the other parent gained legal custody even though in domestic relations cases retroactive support is limited to the date of the petition (except in establishing paternity)?
This issue is unsettled. While this particular issue is not addressed by statute, the reasoning used in domestic relations cases that prohibits retroactive support that predates the petition may be applicable in a dependency. However, an argument can be made that in the context of dependency, if the placement of the child is changed by state action or by the court, then child support should accrue from the date of the change in placement.
Suspension of Child Support When a Child is in a Commitment Facility
Can the court suspend payment of child support while a child is in a Department of Juvenile Justice commitment facility?
Probably not, however, this issue has not been settled in Florida by either statute or case law. States that have dealt with this issue tend to support a modification of child support during a period of commitment, but rarely go so far as to suspend child support altogether.
Modifying Child Support from a Dependency Case That Has Closed
How should continuing matters pertaining to child support be addressed when the only order of child support was entered in a dependency case that has since closed?
- The dependency court, when originally ordering child support, may make a separate child support order to be filed with a civil case number so it can be enforced by the Department of Revenue, avoid revealing confidential information, and be modified after the dependency court’s jurisdiction terminates. Another option is for the final order in the dependency case to provide that any future issues regarding child support be handled in the domestic relations forum. Lastly, the court may terminate supervision in the dependency case but retain jurisdiction to address subsequent child support issues.
- Of course, if all of these matters are in a full-functioning UFC division, then these questions of jurisdiction and forum become moot. Fla. Fam. L.R.P. 12.010(a)(1) states that,
(t)hese rules apply to all actions concerning family matters, including injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking, except as otherwise provided by the Florida Rules of Juvenile Procedure or the Florida Probate Rules. “Family matters,” “family law matters,” or “family law cases” as used within these rules include, but are not limited to, matters arising from dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, an action involving a parenting plan for a minor child or children (except as otherwise provided by the Florida Rules of Juvenile Procedure), proceedings for temporary or concurrent custody of minor children by extended family, adoption, proceedings for emancipation of a minor, declaratory judgment actions related to premarital, marital, or postmarital agreements (except as otherwise provided, when applicable, by the Florida Probate Rules), injunctions for protection against domestic, repeat, dating, and sexual violence, and stalking, and all proceedings for modification, enforcement, and civil contempt of these actions.
Income Withholding and Compliance with Federal Law
How should the court handle cases that include income withholding from a working parent or guardian?
- To be compliant with State and Federal law, four forms - Fla. Fam. L.R.P. 12.996(a), 12.996(b), 12.996(d), and Federal Form OMB 0970-0154 -- should be used when the court has ordered support payments by income deduction.
- Form 12.996(a) – the State Income Deduction Order should be used for income deduction in non-Title IV-D cases. §61.1301(1)(a), Florida Statutes.
- When 12.996(a) is used, Florida Form 12.996(b), Notice to Payor, must also be used and sent to the employer along with the Income Deduction Order to take effect.
- 42. U.S.C. §666(b)(6)(A)(ii) requires income withholding orders to be in a standard format. The federally approved income withholding form “Income Withholding for Support,” OMB 0970-0154, became effective May 31, 2012, and must be used in all withholding cases, both Title IV-D and non-Title IV-D. It can be found at the following address: https://www.acf.hhs.gov/sites/default/files/ocse/omb_0970_0154_instructions.pdf .
- Form 12.996(d) must also be used with Federal Form OMB 0970-0154 whenever a trial court has ordered that support be paid by income deduction.