Child Support and Parenting Time Orders

9/5/2019

Family of Three on WalkChildren are entitled to financial and emotional support from both parents.

The public child support system (established by Title IV-D of the Social Security Act) strives to ensure children receive financial support through their role in establishing and collecting child support orders for the children they serve.

Ensuring children receive emotional support is more complicated. Research suggests that one way to address the emotional support and well-being of children is through frequent and continuous contact with both parents. This can be achieved through parenting time arrangements established for children born to unmarried parents or upon the divorce or separation of parents who were married.

It is often noted that the more time a noncustodial parent spends with their child, the more child support will be paid. A 2011 Census Bureau report showed custodial parents with joint-custody/parenting time arrangements received full child support payments over half of the time, while just 30.7 percent of custodial parents received full child support payment when there was no contact between the child and the noncustodial parent.

This intersection of child support and parenting time is a complicated one that affects a large number of children and families.  In 2011, 23.4 million children under the age of 21 lived with just one parent and in 2014, approximately 40 percent of births were to unmarried mothers.

While many states allow for child support to be adjusted based on the amount of time each parent spends with the child, most child support orders established by the public child support system do not include a corresponding parenting time order or arrangement. In fact, nearly 7 of 10 parents involved with the public child support program do not have an official parenting time order. The primary reason for this disconnect is that Title IV-D of the Social Security Act, which governs the public child support enforcement system, does not allow expenditure of federal funds for the establishment or negotiation of parenting time arrangements.

With the passage of the Preventing Sex Trafficking and Strengthening Families Act of 2014 (PL113-183) Congress specifically addressed the issue of parenting time with the following Findings and Sense of Congress (§303):

The Congress finds as follows: (1) the separation of a child from a parent does not end the financial or other responsibilities of the parent toward the child, and (2) increased parental access and visitation not only improve parent-child relationships and outcomes for children, but also have been demonstrated to result in improved child support collections, which creates a double win for children—a more engaged parent and improved financial security.

The Act also expresses the sense of the Congress that: (1) establishing parenting time arrangements when obtaining child support orders is an important goal which should be accompanied by strong family violence safeguards, and (2) states should use existing funding sources to support the establishment of parenting time arrangements.

In addition to the lack of funding for services to establish parenting time orders, the court process and the marital status of the parents can have major impacts on whether parents establish official parenting time orders. States have addressed this issue in varying ways, through state legislation as well as using federal grants to establish programs aimed at increasing parental engagement and parenting time orders.

IV-D Child Support Orders and Parenting Time Establishment

Congress, with the passage of the Family Support Act of 1988, mandated all states use presumptive child support guidelines and use those guidelines when calculating financial support amounts. As a result, all 50 states have established and use presumptive guidelines for calculating child support. Congress has not imposed a similar requirement on states for the development of presumptive parenting time or visitation guidelines, and as such, states generally have left parenting time determinations to the discretion of the courts.  One example of an exception to this approach is the state of Texas. The Texas Legislature, while developing child support guidelines, also developed and adopted presumptive parenting time guidelines. The result of the Legislature’s action has been an almost universal inclusion of parenting time orders in all public child support orders established in the state of Texas. For more about the Texas standard possession order, see the State Policies section below. 

In addition to most states not having standard or presumptive parenting time guidelines, the venue for resolving child support and parenting time may be different in each state.  Child support orders may be established administratively by the Title IV-D agency in some states  or in a separate child support court, while the parenting time order is established in an entirely different judicial venue. The separate process for setting the two orders can pose an obstacle to parents, particularly unmarried parents.

Married vs. Unmarried Parents

When a married couple is ending their relationship, the state is generally responsible for formalizing the dissolution of that relationship. When a married couple with children gets divorced, state family law statutes have procedures for determining child support and parenting time as part of a unified court process. States may require mediation, parent education classes, or development of specific parenting plans as part of the divorce process all based upon the presumption that both the mother and the father will continue to have ongoing contact and time with their children. In general, only in unusual or extreme situations (e.g. abuse or neglect, domestic violence) is the presumption of ongoing contact overcome.

Conversely, unmarried parents do not require the state to end their relationship. And unlike divorcing couples, state family law varies widely in its presumptions related to the parenting rights of unmarried fathers. Unmarried parents needing assistance with paternity establishment and child support can, at little or no cost, receive assistance from the state child support agency, but there is no similar resource available to assist unmarried parents with establishing parenting time arrangements. In addition, unmarried parents generally must navigate an entirely different court process than the one through which they received a child support order. This can be costly, confusing and time consuming. 

The different family law processes specific to unmarried parents frequently begin at birth. Married fathers are automatically presumed to be the child’s father while unmarried fathers must sign a voluntary acknowledgement of paternity or prove their legal standing as a father some other way. In addition, state laws give married fathers equal custodial and decision-making rights as mothers (because it is assumed that married parents live together). This is not the case with unmarried parents. In fact, in 14 states (Arkansas, Arizona, Florida, Georgia, Iowa, Maryland, Massachusetts, Minnesota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Wisconsin), when a child is born to unmarried parents, even though the father signs a paternity acknowledgment form, the mom is automatically given sole custody. In the other 36 states, unmarried fathers who sign a paternity acknowledgment form are given the same legal presumptions to custody as married fathers.

Many states have attempted to address the disparate treatment of unmarried fathers by granting those fathers, once they have legally established paternity, with similar rights and responsibilities as married fathers. Most recently, Nevada enacted 2015 Assembly Bill 263 which specifically expands the applicability of the custody and visitation laws to all children regardless of whether they were born to parents who were married or unmarried. The bill defaults the custody arrangement to joint legal and physical custody until or unless a court orders otherwise.

State Policies

Boy JumpingStates that address child support and parenting time together do so in various ways. The majority of states provide an adjustment in their child support guidelines for parenting time. Some states provide limited assistance to parents interested in parenting time orders through court-based self-help services or family law facilitators, and a few states provide methods for addressing both child support and parenting time in the same order, or at the same time.

Child Support Guideline Adjustments for Parenting Time

Approximately 36 states and D.C. have an adjustment in the child support guidelines for parenting time. This means that if the parents have established a parenting time order, the amount of time that each parent spends with the child will impact the amount of child support he or she pays or receives.  Many jurisdictions will allow parents to informally agree on the amount of time the child spends with each parent to facilitate determination of child support obligations, but these informal agreements are not legally enforceable orders.

Court Assistance with Paperwork or Questions

Some states take an assisted pro-se (self-help) approach to establishing parenting time, as in California and Michigan, where the court system provides guidance and assistance to parents needing to establish or adjust orders.

California

The California Family Law Facilitator Program (Cal. Fam. Law Code § 10000 et.seq.) assists parents with child support issues exclusively. The facilitator is not the parent’s lawyer and is not there to represent them. Instead, the facilitator can assist the parent with establishing or modifying an order, or simply help them fill out the required forms.

Michigan

The Michigan Friend of Court Bureau (Mich. Comp. Laws §§ 522.501 et.seq.) is designed to establish and implement child support and parenting time policies and guidelines, among other supports related to access to family court in Michigan. The Friend of Court Act was first enacted in 1919 and has been modified over the years.

Standard Parenting Time Schedules

Several states allow parenting time to be set at the same time as child support, but unlike the examples below (Texas and Utah) there is no presumed standard parenting time order or guidelines, so the actual terms of these orders can vary widely and may not reflect the actual amount of time the child has been or will be spending with each parent nor give either parent legally enforceable provisions.

Florida

In 2017, Florida passed Senate Bill 590, defining and establishing a Title IV-D Standard Parenting Time Plan (standard parenting time plan). The legislative intent declares that it is “the public policy of this state to encourage frequent contact between a child and each parent to optimize the development of a close and continuing relationship between each parent and child.” To do this, the statutory standard parenting time plan details weekends, weekday evenings, school break and other details typically included in a parenting time plan.

The bill requires that the standard parenting time plan be presented to parents in any administrative proceeding to establish or modify child support. The parents may agree to the standard parenting time plan set out in statute (Fla. Stat. § 409.25633), or another parenting time agreement. If the parents do not agree, and no parenting time plan is signed, they are referred to the circuit court in the state to determine the appropriate parenting time. To implement these provisions, the legislature appropriated $350,476 in recurring funds and $690,650 in nonrecurring funds to the Department of Revenue, Florida’s child support agency.

See Florida statutes for more: Fla. Stat. § 409.2551; Fla. Stat. § 409.2554; Fla. Stat. § 409.2557; Fla. Stat. § 409.2563; Fla. Stat. § 409.2564; Fla. Stat. § 409.25633.

Texas

Texas has been setting parenting time responsibilities (or “possession” as it is used in statute) at the same time as child support orders for nearly 30 years. As noted earlier in this page, the Texas Legislature, while developing child support guidelines also developed and adopted presumptive parenting time guidelines in the form of a standard possession order. Much like child support guidelines are presumed to be in a child’s best interest absent compelling factors warranting a deviation in the order amount, the standard possession order is presumed to be in a child’s best interest absent compelling factors or parental agreement to deviate from the standard guideline.

These guidelines for both child support and parenting time have gone fundamentally unchanged since 1989 and have garnered the support of the Texas judicial system and the private family law bar.  The guidelines approach to establishing parenting time has also made it possible for the Texas child support agency to incorporate establishment of a parenting time order in the child support establishment process and comply with Title IV-D federal funding limitations.  

To assist parents in navigating and understanding this program, the Texas Attorney General, which administers the child support program, has an FAQ webpage and a statewide Access and Visitation Hotline. Also see Texas Statutes: Tex. Fam. Code § 153.251; Tex. Fam. Code § 153.252; Tex. Fam. Code § 153.3101 et.seq for more.

Utah

In Utah, there are minimum schedules for parenting time based on whether the child is under 5 years of age (Utah Code § 30-3-35.5) or between the ages of 5 and 18 (Utah Code § 30-3-35). As with most parenting-time laws, these schedules are applicable in the case of divorce, and do not necessarily apply to unmarried parents.

These minimum parenting time schedules have the potential to provide the type of consistency that the Texas standard possession order affords parents, allowing them to rely on predictable parent-time orders if they are not able to come up with an agreement otherwise.

During the 2015 legislative session, Utah enacted an optional schedule for parenting-time for children 5 to 18 years of age (Utah Code § 30-3-35.1; 2015 House Bill 35) and includes a provision for child support adjustments based on this schedule.  The bill states that any child support calculation should be consistent with the rules regarding joint physical custody in the child support guidelines.

Federal Grants to Promote Parenting Time

Some states, through federal grants, have developed resources to address child support and parenting time issues simultaneously.

Access and Visitation Grants

The federal Office of Child Support Enforcement (OCSE) administers an Access and Visitation program which provides total pool of $10 million in formula grants to states each year. The grants are designed to facilitate noncustodial parents’ access to and visitation with their children. States are permitted to use the grant funds for:

  • Mediation
  • Development of parenting plans
  • Education
  • Counseling
  • Visitation enforcement, including supervised visitation and neutral drop-off and pick-up; and/or
  • Development of guidelines for visitation and alternative custody arrangements

Some states have used these grant funds to facilitate parenting time orders for unmarried parents going through the child support process, but these efforts have generally been small scale and limited in scope.

According to the Access and Visitation Grant Program, FY 2013 Update, the programs saw the following results:

  • Noncustodial fathers and custodial mothers comprised the highest percentage of participants, 36 and 34 percent respectively.
  • Parent education was the most utilized service at 41 percent, follow by mediation at 24 percent.
  • Nearly two-thirds of participants were referred by either a court or child support agency.
  • More than half of participants had never been married to one another
  • Nearly half of participants earn less than $20,000, with over a quarter earning less than $10,000.
  • 49 percent of participants were white, while the other half belong to a minority group
  • Participation in the AV program increased parenting time for 62 percent of noncustodial fathers and 47 percent of noncustodial mothers.

Parenting Time Opportunities for Children in the Child Support Program Grants

In addition to the Access and Visitation Grants, OCSE also operates limited competitive grant programs, such as the 2012 Discretionary Grants for Parenting Time Opportunities for Children in the Child Support Program. These grants support projects that plan, pilot, and evaluate strategies to establish parenting time orders at the same time as initial child support orders. These four-year grants were awarded to five programs across the country:

  • San Diego County Department of Child Support Services in California
  • Florida Department of Revenue, Child Support Enforcement Program
  • Monroe Circuit Court in Indiana
  • Fairfield County Child Support Enforcement Agency in Ohio
  • Oregon Department of Justice, Division of Child Support

Each of the jurisdictions developed procedures to establish parenting time for unmarried parents within existing child support and court structures.

Domestic Violence Considerations

Underlying all parenting time and child support proceeding are concerns about domestic violence. The process to obtain child support and parenting time orders must be safe for the parent and child.

The vast majority of parenting time demonstration or pilot projects include a screening process for domestic violence. If it is determined that domestic violence is an issue, certain measures are taken to ensure the safety of those involved, including: address confidentiality, supervised visitation, third party pick-up and drop-off plans, and no visitation as determined appropriate by the courts.  Some states, including Texas, Washington, and Indiana, have collaborated with statewide domestic violence coalitions, implemented domestic violence screenings, produced education materials and implemented domestic violence training for child support staff, in addition to working with legal aid providers and the courts to ensure safe procedures for obtaining child support and parenting time orders.

No matter the system used to establish child support and/or parenting time orders, establishing an evidence-based domestic violence screening process and giving the victim a place and time to identify domestic violence issues is one way states can enhance the safety of the child support and parenting time process.

Questions for Legislators to Consider

  • Are there public policy benefits to parenting time and financial support orders being established at the same time, as expressed by Congress above?
  • To what extent are separating unmarried couples and divorcing married couples treated differently within the state’s family law statutes?
  • Do the state’s child support guidelines include an adjustment based on the amount of time a child spends with the parent obligated to pay child support and, if so, are those guidelines applied equitably to unmarried parents and married, divorcing parents.
  • What domestic violence protections to ensure the establishment of safe parenting time orders does your state have in place?

About This NCSL Project

NCSL staff in D.C. and Denver can provide comprehensive, thorough, and timely information on critical child support policy issues. We provide services to legislators and staff working to improve state policies affecting children and their families. NCSL's online clearinghouse for state legislators includes resources on child support policy, financing, laws, research and promising practices. Technical assistance visits to states are available to any state legislature that would like training or assistance related to this topic.

The Denver-based child support project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or cyf-info@ncsl.org.

NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child support issues before Congress and the Administration. Staff in D.C. can be reached at (202) 624-5400 or cyf-info@ncsl.org.

The child support project and D.C. human services staff receive guidance and support from NCSL's Standing Committee on Health & Human Services.

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