More Child Support Questions and Answers
- What if paternity has not been established?
- Is there a deadline for filing a paternity suit?
- What if paternity is not an issue, but the other parent cannot be found?
- What if the child is receiving K-TAP (welfare)?
- How is child support figured?
- Must a judge always follow the amounts in the Child Support Guidelines chart?
- Will a wage assignment be ordered?
- What if one parent seems to be slacking off ("underemployed")?
- For how long must child support be paid?
- What if the income of one or both parents changes?
- What about visitation rights for the parent who has to pay child support?
- Does the parent who gets child-support automatically have custody?
What if paternity has not been established?
If a child was born out of wedlock and the father has not admitted that the child is his, he cannot be ordered to pay child support until his status as the father has been legally established. This can be done one of two ways:
- By Agreement: The father and mother can sign an "Affidavit of Paternity" and file it with the Kentucky Office of Vital Statistics, which will then change the birth certificate. Call (502)] 564-4212 to obtain the proper form.
- By Court Order: A court can declare a man the father, order him to pay support (including the mother's hospital birthing expenses), and place the father's name on the child's birth certificate. A paternity suit will be brought by the county attorney or an attorney for the Cabinet for Families and Children on behalf of the mother or other person caring for the child.
It is useful to file a paternity suit even when the father is trying not to be found, because the father's child support obligation can, in many cases, take effect when the suit is filed. That is, any child support order entered when he is later found can require payments going back to the date the lawsuit was filed. Ramirez v. Comm. of Ky ex rel. Brooks, Ky App, 44 S.W.3d 800 (2000)
Once an alleged father has been served with court papers, the court has the authority to declare him the father and order him to pay support, even if he does not appear in court and does not file anything. KRS 406.021(5).
Therefore, a man who has received court papers and thinks that he is not the father of the child in question should NOT ignore the lawsuit, since he will probably have a child support order entered against him "by default".
On the other hand, if a man wants to have a relationship with a child he knows or thinks is his, he can himself have a paternity action filed, and ask the court to order visitation as well as support. (Unless the mother agrees that the man is the child's father, the court will order blood tests to prove paternity.)
Is there a deadline for filing a paternity suit?
The suit has to be brought before the child's 18th birthday. If it is brought before the child's 4th birthday, the child support order can be retroactive to (take effect on) the child's date of birth.
If the parent left behind is very low-income, he or she can sign up for K-TAP benefits, and leave it up to the state to chase down the absent parent. (See below.)
Regardless of income, the home parent can obtain, for a very small fee, the services of their local Child Support Enforcement office (usually the county attorney) to bring a Circuit Court action against the absent parent.
It is not possible to obtain a support order against a parent before he or she has been found for service of process (personal delivery of the court papers).
What if the child is receiving K-TAP (welfare)?
If a child is receiving K-TAP benefits, the Commonwealth of Kentucky will bring a child support action against the non-custodial parent(s) to obtain re-payment for the state's support of the child. The local Child Support Enforcement office will contact the child's custodian to get the name and address of the non-custodial parent(s). Refusal to provide this information about parent(s), or providing false information, is a crime. KRS 205.785.
If the Cabinet cannot get the absent parent to sign an agreement for payment of support, its attorney will file a court Child Support action against him or her. The custodial parent will be required to testify that she is not receiving support from the absent parent. The court will order the defendant parent to pay support to the Child Support Division of the state for at least as long as the child is on K-TAP.If the non-custodial parent is very low-income, e.g., earning less than the minimum wage full-time, his or her child support payment may turn out to be less than the K-TAP benefits the child receives. Therefore it would help the defendant parent to have a court order entered, as protection against later having to reimburse the state for the full amount of benefits the child received. KRS 205.715.
How is child support figured?
There is a Child Support Guidelines chart that sets out how much parents are expected to pay to support their children. The amounts in the chart are based upon the number of children and the combined income of both parents.
A child support award is figured based upon the parents' gross (before tax) income. Each parent may deduct from their gross income any payments they currently make under a court order for alimony, maintenance or child support. Each parent may also deduct support payments they are making for older children they are legally responsible for, even if there is no court order. Taxes are not deducted.
The parents' combined gross income on the child support chart leads to their combined child support obligation, which is divided between them in proportion to their income. On top of this basic obligation, the parents also have to share, in the same proportions, the cost of work-related child care and the cost of health insurance for the child(ren). The non-custodial parent pays his or her child support to the parent with whom the child is living.
There is a web site with information to help you calculate your monthly child support: http://chfs.ky.gov/dis/cse.htm
- The child has great medical, dental, education, job training or other special needs;
- A parent has great needs of their own;
- The child has money or income of their own, or the parents are very rich; or
- The parents agree to an amount they know is different from the guidelines. (Such an agreement is not allowed if the child is receiving K-TAP.)
The law requires the judge to enter a Wage Assignment Order to have the child support taken out of the paying parent's wages. If the paying parent gives the court a good reason why there should not be a wage assignment, and the child is not on K-TAP (public assistance), then the judge might not order one, but if payments get behind by one month a wage assignment has to be ordered. KRS 403.215.
What if one parent seems to be slacking off ("underemployed")?
Sometimes one or the other parent is able to work but is not earning as much as a judge thinks they could or should be making B for example, working part-time instead of full-time, or staying at home rather than working. [However, a court will not impute income to a parent who is disabled or who is caring for a very young child, age 3 or younger, who is the child of both parents.] If the parent is not making enough effort, the court may "impute" income to him or her, and they will have to pay support based upon the higher amount they could be earning. KRS 403.212
For how long must child support be paid?
Parents must pay support until the child reaches the age of 18. However, if the child is still in high school when he or she turns 18, child support must continue until high school graduation or at least until the end of the school year when the child turns 19.
What if the income of one or both parents changes?
After child support has been set, the amount can be raised or lowered if either parent has had a "material change" in circumstances, such as losing a job or getting a better job. A change is "material" if the new income figure would cause a parent's child support payment to go up or down by 15% or more. The court will enter a new support order unless the parent can show a good reason for the amount to remain the same.
Changes to the amount of child support can be made only for future payments. A court cannot change amounts that have already come due. Until a parent makes a motion for a change, their child support obligation stays the same and they will owe every dollar that has been ordered.
What about visitation rights for the parent who has to pay child support?
A child has a right to support from both parents even if they are disagreeing about visitation. A child also has a right to regular visits with the non-custodial parent, even if the parents are disagreeing about child support. Therefore a court will not allow a parent to keep back child support payments as a way to get visitation, or to keep back visitation as a way to get child support.
A parent who wants to get an order for visitation with the child, or who wants a previous order of visitation enforced, should file a motion so that the judge will address the issue.
Does the parent who gets child-support automatically have custody?
No. When there has never been a court order giving one parent or the other legal custody of his or her child, each parent has an equal claim to custody. It is important for someone going to court for child support to know that if he or she wants to be sure the child lives with them and is not taken by the other parent, they should get a judgment for custody as well as child support.
Reviewed August 2009