UPDATE TO BLOG POST.  Since the original posting of this article, the law has changed. It is permissible, now, to consider informal parenting schedules when establishing the child support amount in support-only cases.  This is a welcome change for those fathers who have been exercising substantial parenting time without a parenting plan and who have been  paying child support as if they were not involved in their child’s life at all.

 

CHILD SUPPORT OBLIGATIONS OF UNMARRIED FATHERS: POTENTIALLY HARSH CONSEQUENCES FOR THOSE WHO DESERVE IT THE LEAST

While the media often focuses on “dead beat dads” and Fathers who don’t support their children adequately, there are many Fathers who meet and even exceed their legal obligations without being court ordered to do so.   Often they pay for health insurance, daycare, private school and are significantly involved in the lives of their children.  If these Fathers have never been married to the child’s Mother, and if these Fathers do not have a Court Ordered Parenting Plan they need to tread carefully.  Appropriate action should be taken to avoid the assessment of  child support that is significantly higher than they should be paying.  Obtaining the services of competent legal counsel is highly advisable in this complicated area of the law.

The Basics:

For unmarried persons with children,” Paternity” must be established by law. Until such time as it is legally established, an unmarried Mother is presumed to be the sole guardian of children born to her.   Establishing one’s paternity does not necessarily require a DNA test.  Paternity may be established administratively, by submitting an Affidavit of Paternity to the or by Court Order.

The Department of Revenue in Paternity cases

The Department of Revenue often institutes actions to Establish Paternity and Support.  Most often, this happens when the Mother is receiving some form of public assistance such as reduced cost child care, food stamps, or state funded health insurance.  The Department of Revenue and  child support enforcement, will require the Mother to name the biological father of the child and they will, in turn, file an action to establish paternity and to establish child support.    The Department of Revenue, Child Support Enforcement will limit its action to issues concerning the establishment of Paternity (whether by testing or agreement) and the establishment of support.   These cases are heard before Administrative Hearing Officers who do not have authority to determine Parental Authority or Time Sharing.

The Problem

In cases of Paternity where the biological Father has no or little involvement with the child, the Department of Revenue action referenced above, poses little problem.   Child support is established based on the parties’ combined incomes and the Father is free to file a separate action in the Circuit Court to address issues concerning Parenting.

In cases, however, where the biological Father is significantly involved in the child’s life these DOR hearings present a problem.  If the parties have never obtained a Parenting Plan or other Court Order establishing a time sharing schedule, the DOR hearing officer is prohibited from considering the informal time sharing arrangement of the parties. In Florida there is a “substantial time sharing” reduction in child support if one provides care for the child more than 20% (73 overnights) of the year or more.  This means that a Father who has had the child half of the time by agreement with the Mother will not be able to obtain a substantial parenting time reduction if the matter is only before the Administrative Hearing Officer.  The difference in the child support can be quite substantial and the Father will be ordered to pay the full child support without regard to the informal time sharing agreement of the parties. This is the current state of the law even if the parties testify to the actual time sharing.  The Father can, of course, file an Action to Establish a Parenting Plan and Time Sharing and to reduce Child Support, but realistically, this process can take months before he will be able to obtain the appropriate reduction.  This may result in financial difficulties for the Father and possibly even impaired time sharing with the child due to the new financial burden. To me, this interpretation and strict construction of the child support statute causes polarization and resentment between parents who have been cooperating and co-parenting on their own.

I am hopeful that the legislature will modify the language of the Statute to allow child support reductions based on, at the very least, informal agreements of the parties.   In the meantime, however, it is important to proceed cautiously, take the right steps, and to obtain the services of competent counsel.