Ask Me Help Desk - Mom and Child support

Ok to make a long story very short, my mom picked favorites over my brother and me, and I felt I was being treated unfairly and moved back to my dad's house. I am 17 he is 15. My parents got divorced about two years ago, and now my dad is paying child support because we both lived with my mom. Now I live with my dad, because my mom and I disagree on many things and we do not get along, but he still has to continue to pay my mom the full child support as if I was still living there, which I think is ridiculous, until he goes back to court to fix it. But I started I new job and I needed new shoes and new pants as a requirement for my job so I asked my mom for money and she said no I’m not giving you any, only because she is mad at me. But wouldn’t she be responsible to help me still since my dads paying child support for me too even though I'm not living there and who knows what she’s spending that money on .

She is not required by law to give you anything. Child support is not ordered for specifics. It is money to given to the official custodial parent to offset the expenses of having a child in the home. As far as the court is concerned, at this time, your mother still has legal custody of you, no matter where you live at and until your father requests a change in custody through the courts, his obligation will continue.

Quote:

Originally Posted by notredame

Ok to make a long story very short, my mom picked favorites over my brother and me, and I felt I was being treated unfairly and moved back to my dad's house. I am 17 he is 15. My parents got divorced about two years ago, and now my dad is paying child support because we both lived with my mom. Now I live with my dad, because my mom and I disagree on many things and we do not get along, but he still has to continue to pay my mom the full child support as if I was still living there, which I think is ridiculous, until he goes back to court to fix it. but I started I new job and I needed new shoes and new pants as a requirement for my job so I asked my mom for money and she said no I’m not giving you any, only because she is mad at me. but wouldn’t she be responsible to help me still since my dads paying child support for me too even though I'm not living there and who knows what she’s spending that money on .

Has your father filed for a new Order of support? If you don't live with your mother getting the Order changed should be very easy, almost no proof, and he can also request that the money paid your mother for YOUR support be returned to him.

But in the meantime, no, she is under no obligation to give the money to you.

He can't get an order of child support until he gets the custody order changed. Also, no court will require the mother to return any monies already paid to her despite the fact that the child has not physically lived with her. That is one of the caveat's of not filing for a change in custody immediately. The only instance where the money would be taken back from the mother is if dad had received an official change in custody order and then received a child support order, and if any money went to the mother by mistake at that point, that money would be recouped from her, but otherwise, she gets to keep it.

Quote:

Originally Posted by Boufeaux

He can't get an order of child support until he gets the custody order changed. Also, no court will require the mother to return any monies already paid to her despite the fact that the child has not physically lived with her. That is one of the caveat's of not filing for a change in custody immediately. The only instance where the money would be taken back from the mother is if dad had received an official change in custody order and then received a child support order, and if any money went to the mother by mistake at that point, that money would be recouped from her, but otherwise, she gets to keep it.

This is not true in all States - retroactive support can be ordered in several States.

Quote:

Originally Posted by JudyKayTee

This is not true in all States - retroactive support can be ordered in several States.

This is true, retroactive support is ordered everyday. However, they won't give retroactive support to override a previous child support order. Under federal guidance from the Uniform Interstate Family Support Act, there is only one order allowed at a time. One of the major reasons for this law coming into being was to eliminate the problems that arose when there were two competing orders. You can no longer go to court and get a separate, second child support order without addressing the standing order. The court will not retroactively stop a child support order. In some states, child support is ordered and there is no final date. For it to stop, someone has to petition the court to stop it, otherwise it will continue on. Once that parent petitions the court to stop the order, the money already paid is not returnable. Only money erroneously paid would be subject to recollection.

Quote:

Originally Posted by Boufeaux

This is true, retroactive support is ordered everyday. However, they won't give retroactive support to override a previous child support order. Under federal guidance from the Uniform Interstate Family Support Act, there is only one order allowed at a time. One of the major reasons for this law coming into being was to eliminate the problems that arose when there were two competing orders. You can no longer go to court and get a separate, second child support order without addressing the standing order. The court will not retroactively stop a child support order. In some states, child support is ordered and there is no final date. For it to stop, someone has to petition the court to stop it, otherwise it will continue on. Once that parent petitions the court to stop the order, the money already paid is not returnable. Only money erroneously paid would be subject to recollection.

Do you have a specific cite on this? There have been other posts where the child was no longer in a person's custody, that custodial parent continued to accept child support, other parent went to Court and previous custodial parent was found to have not notified the Court of a substantial change and ordered to return the money.

As I recall it ended up in a judgment against the first custodial parent.

In NYS - which is the only State I can completely address - you are obligated to advise the Court of any circumstances which change.

Anyone remember where this was posted?

UIFSA Procedural Guidelines Handbook

http://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf

The first link deals with the child support issue itself. While it was initially setup to manage child support cases when parents live in separate states, it also covers, at the federal level, child support issues when there is more than one order involving a child.

The second link deals with the custody aspect. Same situation, wrote to manage cases where parents live in separate states, but applicable at the federal level to cases where there are competing custody orders. After these laws were enacted, there can only be one child support order valid at a time, and one custody order valid at a time. In order to modify a pre-existing child support order, it has to be done through the court having jurisdiction and they will not retroactively change the support order unless the order in question was erroneously done. Same with custody.

Specifically for NY state, see link below. See Paragraph K.8.
OCSE STATE PROFILE - View Page

Quote:

Originally Posted by Boufeaux

UIFSA Procedural Guidelines Handbook

http://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf

The first link deals with the child support issue itself. While it was initially setup to manage child support cases when parents live in separate states, it also covers, at the federal level, child support issues when there is more than one order involving a child.

The second link deals with the custody aspect. Same situation, wrote to manage cases where parents live in separate states, but applicable at the federal level to cases where there are competing custody orders. After these laws were enacted, there can only be one child support order valid at a time, and one custody order valid at a time. In order to modify a pre-existing child support order, it has to be done through the court having jurisdiction and they will not retroactively change the support order unless the order in question was erroneously done. Same with custody.

Specifically for NY state, see link below. See Paragraph K.8.
OCSE STATE PROFILE - View Page

This does not address fraud which I consider this situation to be - the mother had a responsibility to notify the Court of significantly changed circumstances. She did not and continued collecting the money (which, by the way, the father continued paying).

I also see the father did nothing about it - I'm not faulting only her.

I agree only an Order can replace an Order - but the question in my eyes is more about money collected fraudulently.

Hopefully OP will come back and let us know what mother and father do about this and what the Court decides.

Quote:

Originally Posted by JudyKayTee

This does not address fraud which I consider this situation to be - the mother had a responsibility to notify the Court of significantly changed circumstances. She did not and continued collecting the money (which, by the way, the father continued paying).

I also see the father did nothing about it - I'm not faulting only her.

I agree only an Order can replace an Order - but the question in my eyes is more about money collected fraudulently.

Hopefully OP will come back and let us know what mother and father do about this and what the Court decides.

While it doesn't seem right, the sad thing is, its not illegal. Either parent can notify the court. There are kids all over america that one parent is getting child support money for a child that doesn't live with them. They may live with the grandparents, a family friend, or the non-custodial parent, etc. But as long as that child support order is not terminated, its perfectly legal for that person to keep that check. There are so many messed up laws when it comes to family court issues. I think its getting better, but far from being a fair, across the board system.

Also, while I agree the mother was not responsible and knew what she was doing collecting the child support, I don't believe the law requires her to notify the court of the situation. I think the way the law is written, its optional. I think the only reason it isn't specifically legislated differently is because if it were legislated for a parent to be required to notify the court if they don't have physicial custody of the child, the workload in the courts would increase tremendously. Plus, a lot of those same parents would hold onto those children just to keep the check, not really putting the kids needs and wants in front of their desire to have the money.

Quote:

Originally Posted by Boufeaux

Also, while I agree the mother was not responsible and knew what she was doing collecting the child support, I don't believe the law requires her to notify the court of the situation. I think the way the law is written, its optional. I think the only reason it isn't specifically legislated differently is because if it were legislated for a parent to be required to notify the court if they don't have physicial custody of the child, the workload in the courts would increase tremendously. Plus, a lot of those same parents would hold onto those children just to keep the check, not really putting the kids needs and wants in front of their desire to have the money.

Just called in an expert - now we sit and wait. He'll quote the Statute and reasoning for the Statute.

(Good to have friends in high places - and he knows his stuff!)

Unfortunately no one knows where the OP lives in.

Quote:

Originally Posted by notredame

Ok to make a long story very short, my mom picked favorites over my brother and me, and I felt I was being treated unfairly and moved back to my dad's house.Now I live with my dad, because my mom and I disagree on many things and we do not get along, but he still has to continue to pay my mom the full child support as if I was still living there, which I think is ridiculous, until he goes back to court to fix it.

Sorry, but you are not entitled to decide where to live in-in your father's home or your mother's home.

Quote:

Originally Posted by Boufeaux

She is not required by law to give you anything. Child support is not ordered for specifics. It is money to given to the official custodial parent to offset the expenses of having a child in the home. As far as the court is concerned, at this time, your mother still has legal custody of you, no matter where you live at and until your father requests a change in custody through the courts, his obligation will continue.

Correct.Let's see some of KY statutes,for example:
403.212 Child support guidelines-Terms to be applied in calculations- Table.
(e) "Imputed child support obligation" means the amount of child support the parent would be required to pay from application of the child support guidelines.

403.213 Criteria for modification of orders for child support and for health care - Effects of emancipation and death of obligated parent- Commission to review guidelines.
(1) The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.

(3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18).

Quote:

Originally Posted by Boufeaux

While it doesn't seem right, the sad thing is, its not illegal. Either parent can notify the court.

Let's see another statute
3406. A child custody determination made by a court of this state
That had jurisdiction under this part binds all persons who have been
Served in accordance with the laws of this state or notified in
Accordance with Section 3408 or who have submitted to the
Jurisdiction of the court, and who have been given an opportunity to
Be heard. As to those persons, the determination is conclusive as to
All decided issues of law and fact except to the extent the
Determination is modified.

Quote:

Originally Posted by Boufeaux

This is true, retroactive support is ordered everyday. However, they won't give retroactive support to override a previous child support order. Under federal guidance from the Uniform Interstate Family Support Act, there is only one order allowed at a time. Once that parent petitions the court to stop the order, the money already paid is not returnable. Only money erroneously paid would be subject to recollection.

Correct again.It is not mother's fault.
Tx § 154.009. RETROACTIVE CHILD SUPPORT. (a) The court
May order a parent to pay retroactive child support if the parent:
(1) has not previously been ordered to pay support for
The child; and
(2) was not a party to a suit in which support was
Ordered.
Notwithstanding Subsection (a), the court may order a
Parent subject to a previous child support order to pay retroactive
Child support if:
(1) the previous child support order terminated as a
Result of the marriage or remarriage of the child's parents;
(2) the child's parents separated after the marriage
Or remarriage; and
(3) a new child support order is sought after the date
Of the separation.
(e) In rendering an order under Subsection (d), the court
May order retroactive child support back to the date of the
Separation of the child's parents.

§ 154.307. MODIFICATION AND ENFORCEMENT. An order
Provided by this subchapter may contain provisions governing the
Rights and duties of both parents with respect to the support of the
Child and may be modified or enforced in the same manner as any
Other order provided by this title.

Let me try to recap here. First, the OP moved in violation of the current Custody order. The mother could have forced him to move back by enforcing the custody order. Second, there is a question as to whether the mother was legally remiss in either not enforcing the custody order or not reporting a change in circumstances. If that is the case, then the mother could be considered to have been receiving support fraudently. In that case a court might order her to return support payments paid after the change in circumstances. On the other hand, the father was also remiss in not reporting the change in circumstances and may have forfeited any right to reimbursement because of that.

As to her buying you clothes, she can decide how to use the support payments. A judge may look at her refusal to buy you new clothes disfavorably if someone brings an action to modify the support order. But its not illegal for her to decide how to use the money.

The bottomline here is your dad needs to immediately file for a modification of the custody and support orders.

Quote:

Originally Posted by ScottGem

Let me try to recap here. First, the OP moved in violation of the current Custody order. The mother could have forced him to move back by enforcing the custody order. Second, there is a question as to whether the mother was legally remiss in either not enforcing the custody order or not reporting a change in circumstances. If that is the case, then the mother could be considered to have been receiving support fraudently. In that case a court might order her to return support payments paid after the change in circumstances. On the other hand, the father was also remiss in not reporting the change in circumstances and may have forfeited any right to reimbursement because of that.

As to her buying you clothes, she can decide how to use the support payments. A judge may look at her refusal to buy you new clothes disfavorably if someone brings an action to modify the support order. But its not illegal for her to decide how to use the money.

The bottomline here is your dad needs to immediately file for a modification of the custody and support orders.

Maybe... CP is not obligated by the law to ask enforcing the custody order.
TRvBJ/Penn 2007/-Fourteen y.o. son moved to live with his father.No modification of custody and child support.Four years later the father asked the Court to have his CS back.The court dismissed his claim with prejudice.The mother had paid all those years for a room and electricity.

Quote:

Originally Posted by GV70

Maybe... CP is not obligated by the law to ask enforcing the custody order.
TRvBJ/Penn 2007/-Fourteen y.o. son moved to live with his father.No modification of custody and child support.Four years later the father asked the Court to have his CS back.The court dismissed his claim with prejudice.The mother had paid all those years for a room and electricity.

That enforces what I said that the father may have forfeited the right for a refund by not filing for a modification.

In my view the Doctrine of waiver is applicable to this case.The mother waived her right to physical custody,the father waived his right not to pay CS.:) :) :)

Quote:

Originally Posted by GV70

Maybe... CP is not obligated by the law to ask enforcing the custody order.
TRvBJ/Penn 2007/-Fourteen y.o. son moved to live with his father.No modification of custody and child support.Four years later the father asked the Court to have his CS back.The court dismissed his claim with prejudice.The mother had paid all those years for a room and electricity.

This settles it for me - thanks.

Maybe you can borrow some money from a friend or other family member so you can get your uniform for work... then pay them back w/ your fist pay check.

Try not to involve yourself with the parental dramas. It's only going to create animosity and upset within yourself. You have enough on your plate as it is, as a child of divorce, concerning yourself esteem.

I recommend not talking to your dad about your mom and vise verse. Just stay out of it and deal with your own life and future.