November 4, 2011
CHILD CUSTODY AND SUPPORT
By: Robin K. Cohen, Principal Analyst
Susan Price, Senior Attorney
You asked a series of questions about Connecticut laws on child custody and support. Specifically, you want to know how the courts make decisions regarding (1) child custody and visitation, (2) the amount of child support a noncustodial parent must pay, and (3) how the state enforces child support orders. We answer each question below.
CHILD CUSTODY AND VISITATION
How are child custody and visitation arrangements determined?
We assume that you are interested in custody and visitation issues arising between a child's parents and not those involving third parties, such as grandparents. The latter group is subject to different legal rules and court procedures beyond the scope of this report. We also do not address cases involving parental kidnapping or complex situations that arise when the parents, child, or both, live in different states or countries. We will revise this report to cover those issues upon request.
Legal and Physical Custody
Parents who have divorced, legally separated, had marriages annulled, or ended non-marital relationships usually reach out-of-court agreements concerning a minor child's legal and physical custody. Parents with legal custody have the duty and responsibility to make major decisions about such issues as schooling, religious upbringing, and ongoing medical care. Physical custody entails the child's day-to-day care and residence.)
When parents do not agree, court mediators, retired judges, or volunteer attorneys will attempt to help them resolve their differences. If this fails, a family court judge or magistrate will hold a trial and issue a decision reflecting what he or she determines to be in the child's best interest.
Joint custody is the most common parenting arrangement. It gives both parents legal and physical custody. Joint physical custody does not require parents to divide parenting time equally, but must assure that the child has frequent and continuing contact with each parent.
When Parents Agree. When parents agree on custody and visitation, their agreement becomes a “proposed parenting plan,” which they submit to the Family Court for approval. At a minimum, it must include:
1. provisions that allocate decision-making privileges and responsibilities to one or both parents with respect to the child's educational and medical needs and religious upbringing;
2. a custody and visitation schedule, including holiday and vacation time;
3. a plan for resolving disputes;
4. how to handle one parent's failure to honor his or her parenting plan obligations and how they will resolve such issues;
5. how to accommodate the child's changing needs as he or she matures;
6. provisions to shield the child from parental conflict; and
7. each parent's obligation to cooperate and compromise when working to uphold the child's best interest (CGS § 46b-56a(d)).
The parents must attend a court hearing after submitting their proposed plan. Its primary purpose is to satisfy a judge or magistrate that (1) each parent fully understands the agreement, especially as it pertains to his or her ongoing involvement in the child's life; (2) the proposed agreement is fair and reasonable; and (3) approval is in the child's best interest.
Connecticut statutes presume that joint custody is in the child's best interest when both parties agree to this. A judge or magistrate who rejects such an arrangement must explain the reasons in his or her written decision (CGS § 46b-1 et seq.).
When the court approves a parenting plan, the judge or magistrate incorporates its terms in a legally binding order. The order is enforceable in all states and many nations.
When Parents Do Not Agree. The Family Court becomes intensively involved when parents do not reach a parenting plan agreement themselves. Judges and magistrates usually direct them to mediate their dispute, and make court personnel and other family law experts available at no charge. If mediation efforts fail, the case will be assigned to a judge or magistrate for a full trial. The parents may be represented by counsel, but are not entitled to have the state appoint one or pay his or her fees.
Pre-Trial Proceedings. Before the trial begins, each parent must submit his or her own proposed parenting plan that addresses the issues described above. The judge or magistrate may also order court personnel to conduct a custody or family study and require either or both parents to undergo medical or mental health examinations, or both. He or she may (1) issue other pre-trial orders to manage the case or gather other evidence deemed relevant to his or her decision; (2) appoint an attorney or guardian ad litem to represent the child's legal or best interest during the proceedings; and (3) interview the child privately to elicit information from his or her point of view and attempt to discern his or her wishes, if the child is mature enough to form an opinion.
Trial. At trial, both parents are entitled to submit documentary evidence; testify; and call witnesses, including experts they hire to offer opinions on disputed issues. They may also contest the other parent's evidence and cross-examine his or her witnesses. At the trial's conclusion, they may submit written briefs addressing specific legal and factual disputes.
Judge's Opinion. After trial, the judge or magistrate must issue a written decision and an order establishing each parent's custody and visitation rights and obligations. The order must be based on what he or she determines is in the child's best interest (CGS § 46b-56). In this context, the court's goal is to foster and encourage the child's happiness, security, mental health, and emotional development. Although it is generally agreed that a child's interest is best served by joint custody
order that allows him or her to maintain a close relationship with each parent, the weight of the evidence presented at trial may lead the judge or magistrate to order a different arrangement.
Connecticut statutes identify 15 factors that courts may, but need not, consider when determining a child's best interest. The considerations apply to deliberations involving both initial orders and modifications. They are:
1. the child's temperament and developmental needs;
2. any relevant and material information obtained from the child, including his or her informed preferences;
3. the parent's wishes for custody;
4. the child's past and current interactions with each parent, the child's siblings, and anyone else who may significantly affect his or her best interest;
5. each parent's willingness to facilitate and encourage a continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with court orders;
6. manipulation by or coercive behavior of the parents in an effort to involve the child in their dispute;
7. each parent's ability to be actively involved in the child's life;
8. the child's present adjustment to his or her home, school, and community;
9. the length of time the child has lived in a stable and satisfactory environment and the desirability of continuing this arrangement (but the court may consider favorably a parent who voluntarily leaves the family home to alleviate household stress);
10. the stability of the child's proposed residences;
11. the mental and physical health of all individuals involved, except that a proposed custodial parent or other party's disability cannot, in and of itself, be reason for denying custody unless the proposed arrangement is not in the child's best interest;
12. the child's cultural background;
13. how the child has been affected by the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
14. if the child or a sibling has been abused and neglected within the meaning of state law; and
15. if a parent has participated in, and completed, a parenting education program designed to help parents understand how custody disputes affect children.
The court is not required to give special weight to any factor and may consider other factors relevant to the specific case it is deciding.
The decision must be written, contain specific findings, and resolve all disputed custody and visitation issues. It is a final judgment that either parent may ask the state Appeals or Supreme Court to overturn.
Violations of Custody and Visitation Orders. A parent who violates a custody or visitation order may be prosecuted for contempt of court, although this does not often happen. The more common remedy is for a court to order the violator to pay the expenses, including reasonable attorney's fees, the other parent incurs in returning to court to obtain an enforcement order.
Violations may also serve as a basis for modifying the underlying order.
Modifying Custody and Visitation Orders. Either parent can ask the court to modify its custody or visitation order. The parent seeking to do so must base the request on (1) a substantial change in the family's circumstances or (2) the child's best interest.
Who pays for custody and visitation proceedings?
The general rule is that each parent pays his or her expenses plus half of those incurred on behalf of the child. The court may allocate costs proportionally when a large disparity exists between the respective parents' incomes. It may also deviate from the rule if it finds that one parent used the court proceedings to harass the other, for example, by repeatedly filing frivolous motions that unnecessarily and unreasonably prolong the litigation.
How are child support orders set?
Establishing a child support order is not a “cut-and-dry” process. The state relies on guidelines and regulations to estimate how much (the presumptive amount) a non-custodial parent must pay to support his or her child. While the guidelines are intended to serve the child's best interest, the actual amount the court will order a non-custodial parent to pay depends largely on his or her income and how many other children he or she must support.
The guidelines adopt an “income shares” model that is based on the presumption that parents who live apart should pay the same proportional amount to support their children as they would have paid had the family remained intact. They also reflect the state's policy that parents, not children, should be responsible for the added cost of maintaining two separate households, as it was not the child's decision that they should divorce, separate, or live separately.
The guidelines are intended to be used to determine current and past due support amounts and contributions to health and child care costs in all awards within the state, ensuring consistent treatment of parents in similar situations. This consistency is also expected to promote settlement and make court-related procedures more efficient.
Guideline Calculations. In general, presumptive support amounts are based on both parents' combined weekly net income. (The guidelines exempt noncustodial parents with weekly net incomes of less than $50.) Parents can deduct the following from their weekly gross incomes to arrive at a figure representing net income:
1. federal, state, and local income taxes,
2. either Social Security taxes or mandatory retirement plan deductions, up to the maximum amount allowed under the Social Security Act;
3. Medicare taxes;
4. medical, hospital, dental, or health insurance premiums (including Husky Plan contributions), for the parent and his or her legal dependents;
5. court-ordered life insurance premium payments for the benefit of the child whose support is being determined;
6. court-ordered disability insurance premium payments;
7. mandatory union dues or fees, to the extent that they are deducted from the parent's paycheck;
8. the cost of mandatory uniforms and tools, to the extent that these are deducted from the person's paycheck;
9. payments made to comply with court-ordered alimony and child support awards for individuals not involved in the support determination, to the extent that they only cover support currently due; and
10. an estimate of the costs associated with supporting a dependent child who lives with them.
The guidelines and a work sheet parents can use to calculate the presumptive amount a court may order them to pay are posted on the Judicial Branch's website:
Deviations. Courts may deviate from the guidelines in exceptional circumstances, such as when each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedules. The court or court personnel must determine on a case-by-case basis what level of shared physical custody is sufficient to warrant the deviation and its amount. The judge or judicial official approving the deviation must provide a written justification for doing so.
Violations. The Family Court retains jurisdiction to enforce child support orders when the noncustodial parent is not complying with them. See below for the various enforcement mechanisms used in Connecticut.
Modifications. Either parent can ask the court to modify an existing order. He or she usually must base the request on a substantial change in financial circumstances. The general rule for determining when a substantial change has occurred is when either party's income is 15% higher or lower than it was when the court issued its previous order.
Who pays for establishing and modifying support orders?
Both parents pay their own costs, including attorney's fees. The court has the option of requiring a parent who files multiple, frivolous court motions to pay the other parent's court-related expenses and attorney's fees.
ENFORCING CHILD SUPPORT ORDERS
Which state agencies are responsible for enforcing child support enforcement?
Several agencies have a role in enforcing child support orders, with the executive and judicial branches sharing primary responsibility. The Department of Social Services' (DSS) Bureau of Child Support Enforcement (BCSE) is the state's lead agency for enforcing Title IV-D of the federal Social Security Act. A case is considered IV-D when (1) the child for whom support is sought received public assistance benefits or (2) an application for enforcement services is filed with either BCSE or the Judicial Department's Support Enforcement Services (SES) unit. (Custodial parents can also seek help enforcing support orders privately through an attorney.)
Among other things, BCSE must investigate the financial condition of the parent or parents of children receiving cash welfare, any child seeking IV-D support enforcement services, and foster children committed to Department of Children and Families custody. It also enters into cooperative agreement with appropriate officials of the Judicial Department and law enforcement agencies.
SES is responsible for
1. monitoring child support awards for compliance with financial, medical insurance, and child care orders;
2. initiating court-based enforcement actions, such as contempt applications;
3. reviewing financial support orders and initiating modifications when the order substantially deviates from the state's child support guidelines; and
4. serving as clerk of the court in interstate child support actions initiated under the Uniform Interstate Family Support Act (UIFSA). Both family support magistrates and Superior Court judges make, and can order enforcement of, support orders. Orders in IV-D cases must include both cash and medical support.
The Office of Attorney General (OAG) goes to court on behalf of BCSE to (1) establish paternity, (2) enter support orders, and (3) enforce these. The office also is involved with establishing paternity and child support orders for residents of other states and countries seeking support from a Connecticut parent.
How does the state enforce a support order when the obligor (person responsible for paying child support) fails to pay?
The state employs a number of strategies to ensure child support is paid. For most people, the BCSE is the place to start. Any parent who goes to the office and fills out an application can get help. Those parents who have never received public assistance generally pay $25 for the service; public assistance recipients do not pay.
Locating the Obligor. The first step the bureau takes is to locate the obligor if that person's whereabouts are unknown. Child support investigators search a number of information sources, including (1) state and national parent locator databases and (2) Internal Revenue Service, Social Security Administration, Department of Defense, state motor vehicle and labor departments, and law enforcement agencies' records.
BCSE can access the Federal Case Registry if the obligor may have crossed state lines. Another option is the Federal Parent Locator Service (FPLS), established by federal law. The locator is a computerized network of information on individuals, including their Social Security numbers, most recent addresses, wage and benefit information, and employment data. The information for the database comes from information the state and federal agencies provide to the federal Office of Child Support Enforcement (OCSE). Federal law requires each state to have its own computerized parent locator service that includes access to information employers submit on newly-hired employees and in the child support registry information. The state system must be linked to the FPLS.
Another database is the National Directory of New Hires, a national repository of employment, unemployment insurance, and quarterly wage information. In Connecticut, employers conducting business must report all new hires to the Labor Department within 20 days of the hire. The state matches the new hire reports against their child support records and sends them to the national directory. Finally, federal law requires each state, in cooperation with the financial institutions doing business with them, to develop and operate an automated data match program. The institutions must freeze the assets of obligors who have accounts with the institutions and owe past due child support.
For more information about these databases, see OLR Report 2005-R-0452.
Establishing Paternity. When the noncustodial parent is the father, and paternity has not been established, child support cannot be collected until paternity has been legally determined. If the custodial parent was married when the child was born, it is legally presumed that her spouse is the father of the child and he can be ordered to pay child support if he is separated from the mother, even if they are not divorced.
If the mother was never married to the father, the state will start paternity proceedings against him. This process starts with the state contacting him and asking him if he is willing to agree that he is the father of the child. The state can offer DNA testing if he is not sure. If he agrees he is the father, he can sign a form stating such (Acknowledgment of Paternity). Once this is signed, along with the mother's sworn statement attesting to such, he is legally considered to be the child's father. If he does not agree that he is the father, the support enforcement office will file a paternity petition. This paper is needed to bring the case into court.
The court will usually order DNA tests, which is done by wiping the inside of the mouth with a swab. The DNA test compares the patterns in genes of the mother, the child, and the father. The test can determine with over 99% probability that a man is or is not the child's father. Once the test shows that the man is the father, he can again be asked to sign an Acknowledgment of Paternity. If he still refuses, there is a court trial, at which a judge or jury decides paternity. Given the accuracy of the paternity tests, this step is rarely taken.
Most children have paternity established at the hospital at which they were born under the state's Voluntary Paternity Establishment Program. This program allows the father to be listed on the child's birth certificate if the parents complete an Acknowledgment of Paternity form (CGS § 17b-27).
When paternity has not been established, BCSE makes referrals to the OAG for paternity establishment and support orders. When paternity is adjudicated in court, a support order is often entered as well (CGS § 46b-160, et seq.).
How is owed support actually collected?
BCSE uses a variety of general civil and administrative enforcement methods once obligors are located. These include income withholding, income tax refund intercepts, credit agency reporting, lien placement, seizure of real and personal property, lottery offsets, license suspensions, passport denials, and imprisonment.
Income Withholding. Child support payments can be taken directly out of paychecks, unemployment and workers' compensation benefits, and most retirement checks. Judges or family support magistrates must include an income withholding order when the support order is entered or modified. BCSE notifies employers to immediately begin the withholding even if an order does not contain a provision for this, according to BCSE. The obligor is notified of his or her right to contest the withholding, but a challenge does not stay the employer's obligation to withhold the money and send it to BCSE (CGS §§ 52-362 and 46b-213w).
Income Tax Refund Interception. If the obligor owes back support (at least $150 in cash welfare cases and $500 otherwise), BCSE must notify him or her that it will seek to intercept some or all income tax refunds. The obligor has a right to an administrative hearing at DSS to show cause why he or she should not have tax refunds intercepted. Otherwise, BCSE directs the IRS and Department of Revenue Services to withhold the amount of support that is past due (CGS § 52-362e).
Credit Bureau Reporting. If an obligor falls at least $1,000 behind in support payments, BCSE must report the name and debt to credit reporting agencies. Such reports can make it more difficult for the person to obtain loans or other credit. The obligor must be informed of this planned step and given the opportunity to ask for a hearing or pay the overdue child support (CGS § 52-362d).
Liens. If an obligor owes at least $500 in back child support, BCSE can place a lien on his or her real and personal property, usually by filing a notice in city or town land records. Normally, the state collects on the lien when the obligor sells or refinances the property or another creditor forecloses on it. The obligor must be given notice and an opportunity to contest the lien before it is recorded (CGS § 52-362d).
Attachment, Seizure of Assets and Benefits. The state can seize a delinquent obligor's assets and benefits. Although the law generally exempts some items from seizure to satisfy a debt (such as a vehicle or home valued at up to $3,500 and $75,000, respectively), the child support collection law permits attachment and seizure of all of the obligor's property. The obligor must get advance notice and a hearing on request (CGS § 52-352b).
Lottery Offset. When anyone redeems a winning lottery ticket worth $5,000 or more, the Connecticut Lottery Corporation (CLC) must check the winner's name and other identifying information against a list of obligors supplied by BCSE. If the person's name appears on the list, the lottery corporation must contact BCSE and confirm the information. If CLC verifies the information, it must (1) withhold the amount of child support owed and (2) tell the winner why it has been withheld and of his or her right to request an administrative hearing (CGS § 52-362d).
License Suspension. The state can suspend certain licenses of people who are more than 90 days delinquent or fail to provide court-ordered medical insurance. The licenses subject to suspension are: motor vehicle licenses; Department of Environmental Protection recreational licenses; and various professional and occupational licenses, certifications, and permits. Suspending occupational licenses, certifications, and permits affect, among others, medical practitioners, counselors and therapists, pharmacists, psychologists, embalmers and funeral directors, barbers and hairdressers, real estate agents, architects and designers, sanitarians, tradesmen (such as plumbers and electricians), auctioneers, junk dealers, itinerant vendors, and pawnbrokers.
As in other cases, the obligor must get advance notice and an opportunity to contest license suspension actions. In IV-D cases, DSS may provide notice to obligors of a remedy for suspended licenses (CGS §§ 46b-220 and -221).
Passport Denial. Federal law requires states to notify OCSE when an obligor owes more than $5,000 in unpaid child support. Once notified, OCSE must certify the arrearage to the Department of State, which must deny the obligor's application for a passport (42 USC § 652).
Imprisonment. The law deems anyone who neglects or refuses to furnish reasonably necessary support to his or her minor child guilty of criminal nonsupport. It is punishable by imprisonment for up to one year unless the accused satisfies the trial court that he or she is unable to provide the support due to physical incapacity or other good cause. Fathers of children born out of wedlock can also be prosecuted for nonsupport if they have (1) acknowledged paternity in writing or (2) been adjudged such by a court (CGS § 53-304).
What if the obligor lives out of state?
If the noncustodial parent moves out of state and the SES unit or BCSE is already enforcing a support order, the unit will take steps to collect it from the out-of-state parent. The Uniform Interstate Family Support Act (UIFSA) (the “long arm” statute) governs child support enforcement of orders for obligors who live in a state other than where the child and custodial parent reside.
UIFSA generally governs the establishment, enforcement, and modification of support orders and paternity determinations when the laws of two or more state could apply and the person requesting enforcement does not live in the state that has jurisdiction to enforce the order.
Personal Jurisdiction. For the purpose of establishing or enforcing a support order or to determine paternity, the law gives a Connecticut tribunal the authority to exercise personal jurisdiction over a nonresident if any of the following conditions exists:
1. the individual is personally served with process within Connecticut;
2. the individual submits to the jurisdiction of Connecticut either by (a) entering a general appearance and failing to object to jurisdiction in a timely manner or (b) filing a responsive document having the effect of waiving any contest to jurisdiction;
3. the individual resided with the child in Connecticut;
4. the individual resided in the state and provided prenatal expenses of support for the child;
5. the child resides in Connecticut as a result of the individual's acts or directives;
6. the individual engaged in sexual intercourse in Connecticut and the child may have been conceived by that act; or
7. there is any other basis consistent with the state and U.S. constitutions for the exercise of personal jurisdiction.
A court can exercise personal jurisdiction over the nonresident party concerning child support only if the party has received actual notice (CGS § 46b-212, et seq.).
What if the obligor is incarcerated?
Incarceration does not erase an obligation to provide support. In 2011 the legislature passed an act that requires DSS to disclose to authorized representatives of the Department of Correction and the Judicial Branch information on incarcerated parents who are responsible for making support payments. The purpose is to identify those who would benefit from (1) educational training, (2) skill building, (3) work, or (4) rehabilitation programming that will significantly increase their ability to fulfill support obligations (PA 11-219).
What is the role of family support magistrates?
The Family Support Magistrates Act (CGS § 46b-231, et seq.) gives the chief family support magistrate and other family support magistrates (FSM) powers and duties relative to child support enforcement that are essentially the same as those conferred on Superior Court judges. For example, FSMs can enter support orders, which have the same effect as support orders entered by Superior Court judges and involve the same process.
Thus, in IV-D cases, the FSMs have the authority to compel the attendance of witnesses or the obligor under a summons or subpoena, and issue citations for when a person does not obey an order of the FSM or Superior Court judge. If the person served does not appear, the FSM can issue a capias mittimus, which allows a proper officer to arrest and bring him or her before the Superior Court.
A 2009 law builds on an earlier law that allows FSMs and courts, in all IV-D cases, to order obligors into educational, training, skill-building, work, rehabilitation, or other similar programs to increase the likelihood that they can meet their support obligations. The FSM can suspend support payments or elect not to impose court-based enforcement actions based on an obligor's participation in such a program. A 2011 law eliminates FSMs' authority to modify support agreements (they may only approve or disapprove them) (PA 09-175, codified in CGS § 46b-232a; see also CGS § 17b-745(a)(B)(5)(A)) and PA 11-219).
Where does the money that is collected for court-ordered child support payments go?
Federal law requires states to have a centralized collection site to receive, process, and distribute court-ordered child support payments from obligors, employers, and out-of-state child support agencies acting on behalf of obligors to parents on whose behalf they were collected.
Employers can transmit payment to the Connecticut Centralized Child Support Processing Center (CCCSP) via electronic funds transfer/electronic data interchange. Essentially, the employer sends payment and remittance information to its financial institution, typically via computer. The financial institution makes the automated clearing house entries necessary to transfer child support withholdings to the financial institution that the CCCSP uses to collect the funds.
OLR Backgrounder: Child Support Enforcement Terms and Acronyms, 2010-R-0396
Connecticut Judicial Branch, Child Support in Connecticut (2011 Edition)