Our Site is more geared to covering child support issues, but I felt it would be best to give you some background in custody as the two issues typically go hand in hand.
Child custody can be one of the most confusing legal issues confronting an individual. Each state has its own rules regarding custody of children so this page is written to help an individual that has a custody issue in the State of Indiana understand the process and what is involved in the process as well as understand some of the legal terms used in custody matters. This page is not intended to be a substitute for hiring a competent attorney. Indeed custody matters are truly one legal area that is not real friendly to someone who wants to do it without an attorney.
A good starting point is to make sure you understand what people are saying when they say custody. When we talk about custody it is important to note that there are two distinct components to child custody. Physical Custody – that is who is the child’s primary custodian? Where do they sleep every night? (other than overnight visits) Legal Custody – this term means simply means who is the decision maker for the child? That is who decides what doctor the child goes to, what school the child goes to and what religion the child will be raised in, or other major life decisions. A typical custodial arrangement in Indiana would be one parent having primary physical custody, but both parents have joint legal custody which would mean both parents have 50/50 say over the child’s major life decisions. Read more…
If you seek to establish support and there is no father named in the paternity affidavit, and you weren’t married at the time of the child’s birth or conception you must first establish paternity to get support. Paternity when the parents were not married at the time of conception or birth of the child can be established by a paternity affidavit that is signed by father within the first 72 hours of a child’s birth. This is the affidavit they give you at the hospital when the child is born. Otherwise for a non-married couple paternity is established by court order. If the matter is contested genetic testing may be requested by the individual named in the paternity suit. If you need to establish paternity and you are an Indiana resident your first step would be to retain a private attorney or contact the county prosecutor’s child support office in the county you currently reside in.
There are a couple of exceptions to the general rules above: if the couple was married, but a dissolution action had been filed the husband can protest paternity in which case the court could order genetic testing. A paternity affidavit can also be filed at your local department of health up until the time the child’s 21st birthday
If you are owed past due support from an Indiana resident you should contact the support prosecutor in the county and State you live in. The Uniform Interstate Family Support Act allows your local support prosecutor to enforce an existing order, or even seek a modification. Generally speaking even though the support laws can be enforced from the child’s current county and state the law of the state where the order was originally entered will apply. A typical example that comes up is a couple has a child in Indiana, they separate, a custody and support order are entered here in Indiana. Sometime later the custodial parent along with the child move out of Indiana. Often the custodial parent will make the assumption that whatever state they moved into now governs support issues with the non-custodial parent. This is not the case even though the order can be enforced or perhaps even modified out of state via a local support office Indiana law still governs the relationship. For example if a modification were sought what the Indiana guidelines called to be paid in support would still govern even if the child’s current state of residence called for more or less support to be paid using their rules. The only way for Indiana’s jurisdiction could be undone is if both parties consented to it.
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If you are owed support you should get a private attorney. An alternative would be to contact the support prosecutor in the county you live in here in Indiana. Simply search you phone book or the Internet for country offices and look for the county support prosecutor’s telephone number. You may qualify for no-cost representation through the support prosecutor’s office although keep in mind they won’t handle other legal issues you may have such as custody, divorce and or property division. Their representation will be limited solely to support matters including paternity. Nevertheless, this is a tremendous value so contact your county support prosecutor before you consult a private attorney to see what services they can provide you.
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Nowadays support payments are taken directly from paychecks through an income withholding order that was issued by the court when the original support order was issued. Obviously a change in employment can throw this off track. If you aren’t communicating with the other party and the support is past due with no explanation you need contact the support prosecutor in the county you reside in here in Indiana and set up an appointment. When you set up an appoint bring copies of your support order, payment records and any current information you may have on the other parent such as the name and address of their new employer, their current address. You may or may be charged a $25 fee at the time you fill out the application depending on your financial circumstances. Keep in mind if their truly has been a change in circumstances for the other party such as a job loss typically starting the legal process will mean the other parent will be seeking a modification reducing the amount of ongoing support owed.
The presumption is that is the amount you owe. If you have some unusual circumstances where you don’t believe the worksheet accurately represents your income you should certainly have your attorney present those circumstances to the court. However, it is important to note simply because you think the amount is too high wouldn’t be an unusual circumstance. The parties are free to come to an agreement outside what the worksheet calls for, but it really isn’t advisable, because it would create the problem of how to deal with changes in circumstances going forward as support wouldn’t be based upon income, nor would a judge necessary sign off on it if her or she didn’t feel there were a good reason for it. The Indiana Child Support Guidelines say:
Support Rule 2. Presumption
In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.
Support Rule 3. Deviation from Guideline Amount
If the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.
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In short the amount of child support paid for a minor child in Indiana is simply a mathematical calculation that is determined by taking both parents gross weekly income, the number of children to be covered by the new support order and then making other adjustments for the cost of the child’s health insurance, and prior support orders for other children from prior relationships of either parent. A credit is also given for overnight visits to the non-custodial parent. These calculations are performed on what is know as the Child Support Obligation Worksheet and this worksheet must be submitted to the court when your case is heard. Both parents will have to provide proof of their current income which is typically in the form of a recent pay stub.
If either or both parties is represented by an attorney it is likely each parent will have had to produce recent pay stubs and recent tax returns to the other parent’s attorney prior to the court hearing. This is part of what is know as the discovery process. The reason the last several years of tax returns are often requested is to make sure the pay stub either parent is producing is a typical example of their earnings. This prevents people from lowering their income by working less prior to going to court.
Also as part of the process proof of the cost of child care in the form of canceled checks, or testimony of your child care provider is usually submitted. Typically the amount of the child’s portion for the cost of health insurance is proven by a written statement from the employer if the employer provides the insurance or the health insurance company if the child or children are on an individual policy.
Below you will see an example of a Child Support Obligation Worksheet that I prepared so you can get a better idea of how this looks and how this math works out. In this fictional example a divorcing couple have two minor children. The mom’s gross income is $650 per-week and and the dad’s gross income is $700 a week. This is shown on Line 1. The mom is the custodial parent of the children. Neither parent has a subsequent child or a prior born child they are obligated to support. Neither party pays alimony or spousal support. Typically alimony or spousal support is not paid in Indiana.
On line 2. you see the parents’ income is broken down in to a percentage of their combined gross income. Online line 3. you will see the total gross weekly income of the couple. Now the numbers on line 4 just come from a chart that is based upon the gross income plus the number of children. On line 4.a we see that the mom pays out of her income $100 per-week in childcare expenses. On line 4.b we see that the dad has $35 a week taken from his income for health insurance premiums for the two children. On line 5 we come up with the total child support obligation per-week for both parents combined in this case it is $425. Now the percentages from line 2 come into play to determine each parent’s share of the $425. Since the mom in this case is the custodial parent no further calculations are needed for her as she will owe no support. The worksheet shows the dad owes $220.36 per-week in support on line 6, but he does get a $35 credit for the health insurance he provides and a visitation credit of $16.33 make the total support he will owe the mom for the two kids $169
If you want to work out the amount of child support you owe or will be owed to yourself the Indiana Courts have created a handy online calculator specifically for this purpose.
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