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Bill would change child support statute

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Indiana Lawyer Focus

Indiana is one of only a handful of states that requires parents to pay child support until a child’s 21st birthday, but that may be about to change.

On Jan. 10, the Indiana Senate Committee on Corrections, Criminal and Civil Matters voted 7-2 in favor of Senate Bill 18, which would change the age of emancipation for minors from 21 to 19. Family law attorneys say that under current statute, many parents have unknowingly fallen behind on child support payments, assuming that their duty to pay support ends with the child’s 18th birthday.

Jason Hopper, an attorney with the Noblesville office of Cordell & Cordell and whose primary clients are men, said he has encountered many fathers who have accidentally run afoul of the law.

melissa avery Avery

“I can’t begin to tell you how many prospective clients that I interview that have the displeasure of finding out that they have a child support arrearage,” Hopper said.

In the dark

Merryn Gluys, family law attorney for Neighborhood Christian Legal Clinic, said about 80 percent of the cases she handles involve child support. Of those cases, she said about half involve clients who have accumulated arrearages because they assumed the duty to pay ends when children turn 18.

Under current law, parents who are paying support may file an emancipation petition for a child who has left high school and doesn’t intend to go to college. Unless the parent files an emancipation petition, the obligation to pay support continues until the child’s 21st birthday.

“The expectation is that the average child support paying person would just know that they need to file an emancipation petition,” Gluys said. “It’s not a logical conclusion to make.”

Hopper said that if a noncustodial parent has an attorney, that attorney should be the person who advises his or her client about the specifics of child support obligations. But when parents do not have an attorney, they may be on their own in interpreting child support obligations.

Melissa Avery, partner at Avery & Cheerva, explained that child support orders don’t necessarily spell out obligations, either.

“Usually the orders just say you have to pay so much per week, and most do not explain when the obligation terminates – I’ve seen some that do, but most do not,” Avery said.

Intent vs. reality

Gluys said that the intent behind Indiana’s current law is to ensure that custodial parents have some assistance if their children want to go to college. Because even if a divorce decree contains provisions for a child’s college education, that decree could always be challenged in court. But Gluys said that in families of modest means, children may not attend college, but noncustodial parents continue paying support until children turn 21.

“The whole public policy behind the law is largely defeated by what I have observed,” Gluys said. “No law can accommodate everybody, but this one swerves so far away from what it is intended to do.”

While Gluys’ clients – who typically cannot hire counsel – may be the parents who most often unknowingly fall behind on child support, wealthier clients can accumulate serious arrearages quickly.

Under Indiana Code 35-46-1-5, a person who knowingly or intentionally fails to support a dependent child commits a Class D felony; ignorance of the law is not listed as a possible defense. And parents who accumulate more than $15,000 in arrearage under this statute commit Class C felony nonsupport, punishable by two to eight years incarceration, with an advisory sentence of four years.

Hopper said that high-income parents may be at greater jeopardy of accumulating an arrearage that results in a Class C felony charge simply because they’re paying a higher dollar amount in support. He also said that his clients may be less likely to receive notices about accrued child support, whereas families receiving Social Security Act Title IV-D funding would likely receive notices that they are in arrears.

jason hopper Hopper

State penalties

For parents who receive public assistance, Title IV-D funding provides free services, including assistance with finding absentee parents, establishing paternity, establishing and enforcing support orders and periodic review and adjustment of those orders. But if a state cannot show that it is able to enforce support orders, it risks losing some of those Title IV-D funds.

Hopper said Indiana has earned low marks for its ability to enforce support orders.

“I think the legislative intent behind the bill is all about money and increasing the state’s IV-D funding,” Hopper said. “When I look at this bill and how the states and counties are awarded IV-D funding, it’s all competitive.”

Changing the state law in a way that prevents unintentional arrearage could therefore ensure the state’s funding is not negatively affected.

Why now?

Sen. Brent Steele, R-Bedford, said while he voted against similar legislation two years ago, he thinks the time is right for SB18. He said he’s heard more and more stories about young adults who are taking advantage of continued child support when they could be working.

Avery said she has a few concerns about the legislation.

“I would be more in favor of a bill that said 19 and graduated from high school, because some kids are not graduated when they turn 19,” she said. “And my other concern is it’s not giving me direction on those children who right now are between 19 and 21, as to whether they can still request college expense orders.”•

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