Parenting Time Can Increase Child Support
UPDATE: In May, 2015, Oklahoma Gov. Mary Fallin signed a bill that will end DHS computation of a parenting time penalty in Oklahoma child support calculations. The law takes effect Nov. 1, 2015.
UPDATE: In April, 2015, an Oklahoma City judge ruled that DHS had overcharged interest on some non-custodial parents’ lump sum child support obligations that accrued before child support orders were issued. Read about the Oklahoma back child support error here.
An Oklahoma Dept. of Human Services child support form penalizes certain parents for parenting, and discourages those parents from spending time with children. The form makes some parents who spend more time with a child pay more child support.
They pay more because of DHS’ novel reading of a law designed to help parents spend more time with their children. The department’s novel interpretation kicks in when a parent earns twice as much as the custodial parent and keeps a child overnight from 121 to 143 nights a year. That non-custodial parent would pay more child support than if the child stayed only 120 overnights.
DHS’ novel legal theory is repeated in the agency’s online child support calculator, in a DHS child support spreadsheet and in several other online Oklahoma child support calculators. Those forms and calculators are the basis for most Oklahoma child support computations.
DHS claims courts can and sometimes do fix the flaw. I doubt it gets fixed in court very often.
According to Oklahoma law, when a court deviates from child support guidelines, “the court shall make specific findings of fact supporting such action.” Okla. Stat. tit. 43 § 118H(C) That means judges must always explain why they deviated from statutory child support guidelines.
Do judges routinely deviate from DHS’ presumptive parenting penalty then record their reasons as findings of fact? If so, where is the paper trail showing judges’ reasoning?
More likely, in cases where the parenting time penalty is applied in DHS forms, the non-custodial parent who spends time with a child just pays more child support then has less money to pay child care costs.
I am skeptical of DHS claims that the parenting time penalty is usually fixed by sympathetic DHS attorneys. We doubt that many lawyers check the math behind DHS forms. In our experience, attorneys often rely on DHS presumptions whether or not they penalize parents for parenting time.
The Fix that Broke the Fix
The absurd parenting time penalty resulted from DHS’ interpretation of a 2009 change in Oklahoma child support law. A senior DHS attorney and the former state senator who introduced the bill both say the law needs to be fixed.
“We are absolutely in agreement that the statute needs to be fixed – that the formula needs to be fixed,” said Amy Page, managing attorney at the Office of Impact Advocacy and Legal Outreach of DHS Child Support Services.
The 2009 change adjusted parenting time reductions according to the number of nights a child stays with a non-custodial parent. The change scaled back parenting time adjustments for parents with 121 to 143 overnight stays.
Along with the 2009 changes to the formula, legislators dropped a line from the law. The statute previously stated, “In no case shall the amount of child support ordered to be paid exceed the amount of child support which would otherwise be ordered to be paid if the parents did not participate in shared parenting time.”
An Opportunity to Make it Right
As a state Senator in the 2009 legislative session, Tulsa attorney James Williamson introduced SB 2194. He said legislators did not intend to increase child support for parents who spend more time with their children.
“The legislative session is coming up. It would be great to have somebody amend that and put that statement back in it,” Williamson, said. “If I were still up there I would try to do it.”
The parenting time adjustment is intended to balance each parent’s child care expenses against each parent’s income. A non-custodial parent whose income is nearly equal that of a custodial parent gets a 30 percent reduction after 120 nights. If parents have equal income and equal numbers of overnights, neither pays child support.
The change reduced parenting time adjustments for non-custodial parents with more income than the other parent when the number of overnights is just over the 120-night threshold. DHS’ problematic increase comes up when parents have widely different incomes.
Under the new law, for a non-custodial parent who earns $40,000 and pays child support to a parent earning minimum wage, the adjustment begins after 131 nights – starting at 12 percent. It scaled back such parents’ reduction of 18 percent after 120 nights.
That is the change lawmakers intended. But according to DHS’ novel interpretation, with 121 overnights those parents would now pay 8 percent more than they would with 120 nights.
The problem results from DHS’ wrongheaded decision to apply the formula before a reduction is indicated. To raise the threshold for a reduction, legislators adopted a formula that otherwise yields results higher than base child support for some income levels. DHS claims the 2009 law presumes an increase from what common sense says are irrelevant permutations.
Free Consultation: Tulsa Child Support Attorney
If you pay more child support because you spend more time with your child, or you turned down an opportunity to spend more parenting time because it would cost more child support, Wirth Law Office would like to know about it. In some cases, you might persuade a court to adjust your child support obligation.
For a free consultation with a Tulsa child support attorney, call Wirth Law Office at (918) 879-1681. You can also send questions using the form at the top of this page.
Part Two: An Exercise in Bureaucratic Nonsense
Part Three: Parenting Penalty Hurts Families
Wirth Law Office Communications Director David Collins contributed to this report, including interviews with Amy Page and James Williams.