January 15, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
If the recommendations of a special state commission are adopted by the Nebraska Supreme Court, child support orders should come down, albeit marginally, in the future. Read about it here (Omaha World Herald, 1/13/15). That, according to such disparate forces as advocates for non-custodial fathers and Legal Aid of Nebraska, would be a step in the right direction for divorced and separated families in the state.
For years now, non-custodial parents in Nebraska have argued that child support levels were not only set too high, but higher than in neighboring states with similar economies and standards of living. That led to the establishment of the state commission that hired economist Jane Venohr to analyze Nebraska’s child support guidelines. The result is a recommendation to lower child support in most custody cases.
“The commission felt strongly that it should reflect the cost of living of Nebraska, which it does,” said Jane Venohr, the economist with the Center for Policy Research in Denver.
Per capita, Nebraska’s standard of living is between 10% and 15% below the national average. Child support reform advocates claimed child support orders were among the highest in the nation at about 10% - 15% above the average. As I’ve mentioned before, the federal Office of Child Support Enforcement has for years decried the tendency of family courts to set child support levels higher than non-custodial parents could reasonably be expected to pay. That strongly suggests that non-custodial parents in Nebraska have been even less able to pay their child support obligations.
Under the recommendations, what a noncustodial parent pays in support would vary based on the incomes of both parents and the number of children involved. Generally, however, the reductions range from $40 to $225 per month.
Longtime advocate for reform, attorney Chris Johnson supports the recommendations.
The recommendations are a step in the right direction, said Chris A. Johnson, a Hastings, Nebraska, attorney who has been an outspoken advocate for noncustodial parents, who most often are fathers.
“They stopped turning a blind eye to the needs of the noncustodial parents,” Johnson said.
While the decrease in child support levels may be modest, the commission’s recommendations are aimed at something else as well – greater shared parenting.
The awarding of parenting time was another issue that hovered over the commission. During a public hearing at one of the first meetings, several noncustodial fathers said they pay too much child support for too little time with their children.
Under the law, judges must consider what’s in the best interest of the child when determining which parent gets primary physical custody and how much visitation the other parent receives. Once that decision is made, judges are supposed to determine child support…
Noncustodial parents currently get an average of five days of visitation per month — or about 16 percent of the parenting time — according to a 10-year analysis of Nebraska court decisions released last year.
While judges have latitude in setting child support, they can use a worksheet to reduce payments under the current formula when parents agree to a visitation schedule of at least 142 days per year, or about 38 percent of the time.
The commission recommended dropping the threshold to 104 days, which represents 28 percent of the time. That translates to even lower child support payments for the noncustodial parent, said Angela Dunne, an Omaha divorce lawyer who served on the commission.
Dunne said she’s concerned that the recommendation could result in child support cuts that could make budgeting more difficult for custodial mothers, who generally earn less than fathers.
In other words, currently, if a non-custodial parent is awarded 142 days of parenting time per year or more, the judge in the case can adjust child support downward to reflect the fact that he/she is bearing more of the actual costs of raising the child. The commission’s recommendations would decrease the standard to 104 days.
The goal of increasing parenting time for non-custodial parents is in line with federal guidance issued by the OCSE. The question is whether the recommendations, if adopted, would have the intended effect. The matter can be argued both ways. On one hand, a judge who’s disinclined to order meaningful time for the non-custodial parent could be encouraged to keep parenting time below 104 days. That would in fact be worse than the current situation in which the judge can order up to 142 days without reducing child support.
On the other hand, non-custodial parents will be encouraged to seek greater time with their kids because the new level is more within their reach and their pocketbooks will be able to more easily handle greater time with their kids. And the combination of greater parenting time for non-custodial parents plus lower child support may encourage custodial parents to work, earn and save more than their currently able to do. That 41% of unmarried mothers with children at home live in poverty should encourage every state to adopt policies that make gainful employment easier.
But for those parents who agree to share time with the child more evenly, the recommendation helps the noncustodial parent to better maintain a decent household for his child, said Les Veskrna of Lincoln, an advocate for equal parenting.
“I think these guidelines begin to correct a long-standing problem,” he said.
A couple of other recommendations would tend to lower child support orders.
Other recommendations in the commission’s report relate to health care costs. One would allow parents to deduct the cost of health insurance for themselves from their income before child support payments are calculated.
Another major recommendation would require the costs of child day care and preschool to be incorporated in the child support order, making payment of those expenses easier to enforce.
As to health insurance, the non-custodial parent would, under the recommendations, be able to subtract from his/her income the amount paid out for premiums. That makes sense because, under the Affordable Care Act, maintaining a policy of health insurance on oneself is no longer optional. Since paying those premiums is required, incomes for non-custodial parents will be reduced dollar-for-dollar in family courts by those premiums. Reduced income of course means reduced child support.
By including the costs of day care and preschool in the child support order, instead of making a separate order, judges will be required to lower the non-custodial parent’s income by the amount he/she pays. Again, lower income means lower child support.
Finally, one remarkable aspect of the recommendations is their support by Legal Aid of Nebraska. LAN’s testimony on behalf of the recommendations reflects its concern for lower-income parents who, more often than any others, face child support bills they are unable to pay. Four years ago, the OCSE reported that an astonishing 63% of child support debtors nationwide reported earning under $10,000 per year. Legal Aid’s support is therefore understandable.
All in all, the recommendations are a modest but meaningful step toward reforming child support to correspond to the economic realities Nebraskans face. There will likely be a period of time during which the public is able to comment on the recommendations prior to their adoption by the Court.
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