Atlanta Legitimation & Paternity Lawyers
Raising a child creates a special bond which is not defined in legal terms. Yet, the law determines your rights with regard to your child and shapes the extent of your custody. If you are not the biological father of your child, or your child was born out of wedlock, you may need to establish legitimation.
Without establishing legitimation, you could be restricted from visiting, or playing a major role in, your child’s life. The process of legitimation allows fathers to legally exercise their custody and visitation rights, even if they are not biologically related to their child. It also lets fathers pass along benefits more easily.
In some situations, however, a father may be uncertain of his paternity or deny it altogether. In that case, establishing paternity will allow all parties to be clear on the father’s status and legal responsibility. Establishing paternity essentially proves whether someone is the biological father of a child. This has huge consequences on the father’s legal responsibility for the child, and may enable mothers or other caretakers to seek child support.
At Kessler & Solomiany, LLC, our family attorneys are experienced with legitimation and paternity suits, and we will support you at every step of your case. Our legal team understands the toll that divorce can take on the entire family. We also know that establishing legitimation and paternity quickly is important for ensuring your child is properly cared for. Contact us at (404) 688-8810 for a consultation today, and let our experienced Atlanta legitimation and paternity attorneys help you recover the child support you may be owed.
Divorce and Child Support
The divorce process can be a long, arduous, and often a very painful experience for everyone involved. This is especially true when the parties have a minor child or children. While no divorce is the same, if there is a child involved they all have one common thread—the child is usually the innocent party and should have the right to maintain as normal of a life after the separation of his or her parents as possible. To attain this goal, every state requires parents to support their children with both monetary and physical care. Traditionally, the duty of monetary support rested primarily on the father, while the duty of care was placed on the mother. Today, however, the duties of support and care rest on both parents.
What is child support?
Child support is a payment of money from one parent to another for the support of their children. Each state has its own specific guidelines for determining which parent will pay (usually the non-custodial parent) and how much they will be obligated to pay. In any divorce involving minor children, the parties will be required to disclose their financial status. The court in turn will determine how much each party will pay based on that and other information. Generally, the parent with the child support obligation will pay on a monthly or bi-monthly basis. If one parent fails to pay, the other parent has a legally enforceable judgment against the non-paying parent that they can use to obtain a wage assessment (garnishment) or sometimes even have the non-paying parent put in jail for failure to pay. However, it is important to note that if one parent fails to pay support the other parent should not withhold visitation. Instead, you should seek court involvement or other collection measures. The non-paying parent can be put in jail for an indefinite period of time for his or her failure to pay child support, often until the full or partial amount is paid. However, if you choose to withhold visitation (called “self help”), then you may very well also be put in jail—not just your non-paying former spouse!
Who must pay child support?
Parents have a duty to support their offspring unless the child is emancipated, the parent or child dies, or the child reaches the age of majority, which is usually somewhere between eighteen and twenty-one in most states. Generally, parents cannot contract away their obligation to financially support their child because the right of support belongs to the child, not the parent. All states, however, allow parents to contract for a specific amount of child support so long as the contract is not against public policy or state statute (law) and is in the best interest of the child. In almost every case, the parent who has the children less than fifty percent of the time will pay child support. There are exceptions, such as where it is almost a 50/50 division of parenting time and the parents earn almost the same, or the parent with a little more time earns a lot more money.
Persons who are not biological parents are ordinarily under no duty to pay child support. For example, stepparents and grandparents, generally, have no duty to pay support for their stepchildren or grandchildren, respectively, unless they have created a loco parentis relationship or have adopted the child as their own. Loco parentis is a Latin term that means, “in place of the parent.” In the case of a stepparent or grandparent, establishing such a relationship requires more than allowing a child to live with them or the exercise of temporary custody. Instead, courts will consider the relationship between the stepparent or grandparent and the child and determine whether the former has taken upon himself or herself the historical position of biological parent. Whether a loco parentis relationship exists is a question of fact for the judge to decide, but it is very rare.
How do courts determine how much a parent must pay in child support?
Unlike most areas of law, family law is extremely intuitive and practical. All states require the divorcing spouses to follow “child support guidelines,” a formulaic calculation that weighs numerous factors relating to the needs and expenses of the child. Although the states have discretion regarding what factors may be considered, courts generally will look at: (1) the needs of the child, (2) the standard of living established by the parents, (3) each parent’s income and overall financial situation, (4) the earning capacity of both parents, and (5) the age of the child. Of course, this list is not exhaustive and the judge may look at a number of other factors. Each state has its own specific guidelines.
What constitutes income for purposes of child support?
The following is a list of several sources of revenue that most courts consider to be “income” for purposes of determining child support:
- Hourly wages and salaries (including tips and overtime)
- Alimony payments received
- Stock dividends
- Income from rental properties
- Social Security benefits
- Pension and retirement plan benefits, military and unemployment benefits, government subsidies, gifts and prizes, and trust disbursements
Is it true that men always pay child support?
Historically, men were the breadwinners of their families. Consequently, men were tacitly assigned the duty of paying child support. However, with the influx of women into the workforce—a direct result of the women’s movement beginning in the 1960s—courts now take a “gender neutral” stance regarding who must pay child support.
Section 309 of the Uniform Marriage and Divorce Act (UMDA), a guidepost that many states have adopted and modified to make their own, gives trial courts discretion to order either or both parents to pay an amount reasonable or necessary for the child’s support. Typically, today, the non-custodial parent (the parent who does not have physical custody of the child) is required to pay child support to the custodial parent.
When does child support end?
In most states, there are at least three circumstances that will end a parent’s duty to support the child: (a) the child is emancipated by the court, finishes high school, marries or enters the armed forces, (b) the parent or child dies, or (c) the child reaches the age of majority.
A. Emancipation and Reversion
Emancipation is a legal proceeding through which a minor child becomes legally independent of his or her parents. As a result, the child becomes fully responsible for his or her own actions. Generally, a court will look to the child’s own actions to determine whether he or she should be emancipated. For example, marriage, joining the military and other acts of independence will typically terminate the parent-child relationship.
If a child is emancipated, the parents’ child support obligation ceases. However, even if the child acts independent of his or her parents, if there is a showing of need then the child will not be emancipated or, if they have been emancipated, their status as a dependent will revert.
B. The Parent or Child Dies
Generally, if the obligated parent or the child dies—without specific language in the final court order to the contrary—the deceased parent is no longer obligated to support their child. Additionally, a trial court generally will not involuntarily extend the child support obligation of the deceased parent (or their estate) without express agreement of the deceased parent prior to death. Of course, parents should, and are often required to, maintain life insurance to provide for the child after the parent’s death.
C. The Child Reaches the Age of Majority
In most states, a child support obligation ends somewhere between the ages of 18 and 21 years old. In a majority of states, parents cannot be forced to support their child through college. Some states, however, may require a non-custodial parent to support their child’s college education if the parent has the “earning capacity or income to enable him to do so without undue hardship.” Despite the majority rule (that support ends at the age of majority), the divorcing parents can agree to support beyond the age of majority in their settlement agreement.
Should I be aware of any tax implications?
Yes. First, if you have the child for greater than half of the year (182.5 days), then you are the “custodial parent” and you may likely claim the child as a dependent on your tax return unless the parents agree otherwise or unless your court is authorized to, and does permit the secondary custodian to claim the tax benefits. Consult with a certified public accountant or other tax expert for this and all tax-related issues. Second, child support payments are generally not deductible by the obligated parent nor are they included in the receiving parent’s income (the opposite is true for some forms of alimony). Finally, if the custodial parent pays more than half of the costs of maintaining the household, then the custodial parent may qualify as the “head of household” for tax advantages.
However, these general rules are void if the parents file jointly. Stated differently, to take advantage of these tax benefits the parents may wish to file individually. You should consult with and reply upon a tax expert, as most lawyers, including this author, are not tax experts.
Can I modify a child support obligation?
In many states, you can modify the amount of child support you owe or to which you are entitled upon a showing of a “change in financial circumstance” or if the needs of the child have changed. As stated above, there are many legal avenues available for parties whose ex-spouse fails to pay support. Among other things, parents who fail to pay their child support obligation may be jailed until they pay their support and/or their paychecks may be garnished.
But what happens when you genuinely cannot pay the amount mandated by the court? Suppose for example, that you were a wealthy doctor with a successful medical practice. At the time of your divorce you grossed approximately one million dollars per year. Consequently, you now have an obligation to pay $5,000 per month in child support. Unfortunately, you were recently in a car accident and broke your back. Unable to work for the past six months, your once successful practice is now struggling to stay afloat. What options do you have? Can you petition the court to modify your child support obligation? Maybe, but you generally must show the court that you have experienced a “substantial change in financial circumstance.”
What constitutes a substantial change in financial circumstance?
While every state has its own statutory language, what is consistent among all of them is that there are rules governing the modification of support that often require a party to show a substantial change in financial circumstances or needs of the child.
A. Change in Financial Circumstance of either Parent ¬– Downward Modification
The majority of child support modifications occur when there has been a financial change in circumstance of the obligated parent. Typically, the obligated parent has experienced a financial hardship and is seeking a downward modification (they want to pay less per month). As a result, many obligated parents have seen a significant decrease in income.
But what does someone need to show in order to obtain a downward modification? Every state has its own guidelines and, therefore, you should contact an attorney who is familiar with the specific requirements in your state. Generally, the party must show that they either have little or no earning capacity or the amount he or she is obligated to pay is (or will) create an economic hardship. Of course, what is considered an “economic hardship” is a question for the judge and requires a close look at the obligated parent’s financial situation. And, if the recipient of support has a significant increase in income or financial status, that may also serve as a basis for a modification.
B. Change in Circumstance of either Parent ¬– Upward Modification
As we previously mentioned, the custodial parent may seek an increase in child support if the financial circumstances of the obligated parent increases. Upward modification of child support, like downward modification, is fact specific. An important factor is the increased income of the obligated parent.
However, an increase in income of the obligated parent, standing alone, may not be adequate to successfully petition the court for upward modification. In addition to an increase in the obligated parent’s income, the court will also look at the needs of the child, the increased living expenses of the child (not the custodial parent), medical and educational needs of the child, and the past and current lifestyle of the child. But if the recipient of support has a significant decrease in income or financial status, that may also serve as a basis for a modification.
C. Change in Circumstance of the Child Justifying Modification
A change in the financial circumstances of a parent is not the only reason for seeking modification. Another common reason for an increase in child support is that the needs of the child have changed. The reasons for a change in the child’s needs are infinite, but they may be related to an illness, disability, or educational expenses. But the change usually must be one that was not foreseeable or anticipated, such as the child growing older and needing bigger, more expensive clothes, which is foreseeable and expected.
If I file for bankruptcy will my back child support obligations be discharged?
No. Although some debts are dischargeable (legally releasing you from liability) at the end of a bankruptcy case, domestic support obligations are one of the exceptions to this rule. See Bankruptcy Code 11 U.S.C § 532(a)(5). Therefore, if you file for bankruptcy your child support obligation as well as most alimony obligations will remain after other debts have been discharged.
Child support is only one of many “domestic support obligations” that a party may be obligated to pay. In the next chapter we will take a closer look at alimony, how to determine how much you may be obligated to pay or receive, some tax implications, and how long you can expect to pay or receive alimony.
Establishing legitimation or paternity can be a difficult and complicated process. Hiring an experienced attorney will allow you to properly exercise your parental rights and fight for the child support, or other benefits, you may be owed. The experienced Atlanta family law attorneys at Kessler & Solomiany, LLC understand how to successfully navigate complicated cases and fight for our clients’ rights with. Contact us today at (404) 688-8810 or online and schedule a consultation with our compassionate attorneys today.
Kessler on Paternity and Legitimation – ICLE Savanna 2007
Kessler on Legitimation?
- Am I required by federal or state law to readopt my child after completing an international adoption?
- What if my child enters the United States on an IR-4 visa? Do I still need to readopt?
- Are there other reasons I might want to consider readopting my child once we are back home?
- What happens if my family moves to a different state after international adoption or readoption?
Am I required by federal or state law to readopt my child after completing an international adoption?
If your child was issued an IR-3 immigrant visa, you are not required under federal law to readopt your child, although your state law may require you to do so.
What if my child enters the United States on an IR-4 visa? Do I still need to readopt?
Yes. Re-adoption or adoption is a requirement for all children entering the United States with an IR-4 visa, where the adoption was not completed overseas.
Are there other reasons I might want to consider readopting my child once we are back home?
Even if you’re not required to complete a readoption by law, you may still want to do so for practical reasons. For example, readoption enables you to obtain a U.S. birth certificate from your state of residence for your child. This will make obtaining certified copies of your child’s birth certificate much easier in the future. A legal name change can also be completed during readoption in the U.S.
What happens if my family moves to a different state after international adoption or readoption?
Not all states in the U.S. recognize a foreign adoption decree. If you live in one of the states that does recognize the foreign decree, you should be fine. However, if you subsequently move to a place that does not recognize foreign adoption decrees, you could experience complications. For example, your child might not legally be recognized as your heir. Readopting in your state prevents such issues, as all states recognize final adoption decrees from other states.
To learn more, do not hesitate to contact the Atlanta legitimation and paternity attorneys of Kessler & Solomiany, LLC at (404) 688-8810 or on our website here.