I am glad to announce that Matthew D. Henderson will be joining Troutman & Napier, PLLC as an associate attorney. Matthew comes to us from the Fayette County Attorney’s office. Prior to that, he served as Judge Philpot’s judicial intern in Fayette Family Court. He will be bringing tremendous skills and knowledge in areas of criminal law and family law as well as estate planning and general litigation. With the addition of Matthew, Troutman & Napier, PLLC offers a full range of services and practice areas for our clients.
I have had the honor of representing parents in dependency, neglect and abuse (“DNA”) actions in a few different counties. Along with working for the Cabinet for Health & Family Services in child protection, I have learned that there is little uniformity in how various issues in these actions are handled across counties. One of these issues is the handling of child support assessed against the parents who have lost custody of their child(ren). Many practitioners and few parents realize that child support in DNA actions is governed by a different statute than child support in divorce cases. The statutes that determine child support in divorce actions are in KRS Chapter 403. A hallmark of child support in divorce is the use of standardized guidelines shown in KRS 403.212. Deviation from the guidelines has to be justified by the court.
In contrast to the highly regulated child support of divorce, child support in DNA actions is governed by only one statute, KRS 610.170. The only standard this law provides is that the court shall order a “reasonable sum” and this only IF the parent is able to contribute. The statute makes no reference to the guidelines of KRS 403.212. This omission was purposeful by the legislature and the entire thrust of KRS 610.170 shows a legislative intent to give greater discretion to the judge presiding over a DNA matter and for greater leniency in the amounts levied. There are practical reasons for this policy of leniency that are beneficial both to the parents and to the State. Unfortunately, many courts do not recognize the nuances built into this law and automatically apply the standard guidelines as if a divorce were occurring. Not only do many counties stick to the guidelines, they also divide the proceedings so that the child support is handled through an entirely separate docket. This leads to other difficulties for both the county and the parents.
Becuase the child support often is handled on a separate docket, the parents end up without representation. They were likely appointed counsel in the DNA proceeding due to a low income, but the scope of representation for the court appointed counsel (“CAC”) is not expected to include other hearings, such as for child support. Becuase of the limited scope of representation and because the parents cannot afford their own counsel, they end up without legal assistance in understanding the differences in the child support laws.
Separating the proceedings also impacts the courts and the County Attorney’s office by creating double dockets. Instead of one County Attorney familiar with the details of the situation, handling one case and showing up to one set of hearings, there are two County Attorneys and two sets of hearings. This lead to judicial inefficiency. Already impoverished parents must take more time away from work or job searches in order to attend hearings that will demand money from them leading to inefficiency from an economic standpoint. In other words, it creates waste for everyone.
Of course parents who have chosen to be or have inadvertently been neglectful or abusive should still support their children financially. However, there are some differences inherent in the DNA situation that call for different treatment than a divorce. In DNA actions, a third-party, the Cabinet, is stepping in and asserting authority to take the child from the parents. Occasionally this was due to an overreaction by the Cabinet. In rare circumstances, the removal was an out and out mistake. Regardless, the parents are often devastated and have few emotional, social and financial resources to successfully navigate the turmoil this brings about. The neglect and abuse likely flowed from a mental health issue or at least a deficit of parenting skills. The Cabinet always requests, and the courts order, various assessments, education programs and treatment regimens. Almost none of these requirments are free to the parents and only the rare few parents have insurance. Thus, the parents are stressed financially beyond what one typically sees in a divorce situations.
In order to reunite the child with the parents successfully, these various assessments and treatments must occur. That means fees paid to programs and time taken off of work to attend the classes or treatments. In other words, more expenses out and less income in. It is within this context that we see why the legislature simply used “reasonable sum” as the standard for child support in DNA matters. There is no way to factor all of those variables into a set guideline like one finds in the divorce statutes. So, the legislature comtemplated giving the judge, who could see what expenses were being required of the parent, to use their discretion to set child support at a level low enough to allow for success. This sets the stage for the parents to have every advantage towards being successful.
When more parents are given greater opportunity to succeed in reunification by maximizing the resources at their disposal (i.e. by keeping child support low) the State can actually save money. Some judges and County Attorneys worry that they are holding back money from the Cabinet that will help finance sufficient workers to do the job right. In truth, the amounts contemplated would only amount to a small fraction of the budget. Rather, if children go home faster then the State will encounter greater financial savings. Consider it this way, if it typically costs around $15.00 a day for a child to be in foster care (not to mention all the indirect costs) and the parents child support per guidelines would be $10.00 a day, then the state is falling behind $5.00 a day. Mathematicians can help me here, but there comes a point where the cost of low child support with fewer days in care becomes more financially efficient than high child support with more days in care. True, there will still be parents who do not do what they need even with low child support, but that can be addressed at a three or six month review where the court reassesses matters. It is better to start out setting that stage with every benefit to the parent to encourage success.
To pull all these ideas together, the best practice would be for either zero child support or a nominal amount to be assessed at the Temporary Removal Hearing in the DNA proceeding. Then, at the Disposition hearing, for the judge to look at all the requirments of the Cabinet and the parent’s income and determine a “reasonable sum”. This cuts out any extraneous proceedings, involves only one County Attorney, and insures that the parent’s court appointed counsel can advocate for them on the child support issue. Most importantly, it allows the judge to make their best determination as to what balance of child support will best allow the parents to obtain the assessments and treatment needed to get the child home. Finally, if the parent does nothing for the first three to six months, the judge can send one more wake-up call to them by upping the child support since it would then be “reasonable” to take treatment costs out of the equation. I cannot take credit for the process I recommend, but must give that credit a very wise County Attorney (he knows who he is) who has refined it over years in one county’s Family Court (I will take credit for illuminating the rationales for the policies though).
Legislation has been introduced in Kentucky to create a super-marriage or Covenant of Marriage. Here is a summary of the bill:
Create new sections of KRS Chapter 402 to provide the option for couples to enter into a covenant marriage; provide that a couple may designate a covenant marriage when applying for a marriage license or after marriage; require authorized counseling before entering a covenant marriage; define “authorized counseling”; establish the procedure for declaring a covenant marriage; require marriage license and certificate to indicate if the marriage is a covenant marriage; provide limited grounds for dissolution, legal separation, or divorce from bed and board, including a requirement of authorized counseling before divorce in a covenant marriage; require the Human Resources Coordinating Commission of Kentucky to develop an informational pamphlet regarding covenant marriage; amend KRS 402.100, 402.230, 403.025, 403.044, 403.110, 403.140, 403.150, and 403.170 to conform.
First, let me explain that I made a decision in representing divorce cases to limit my client base by about 1/2. I believe in the sanctity of marriage and do not wish to facilitate divorce as a means of relieving so many of the normal difficulties of marriage. To that end, I will represent those responding to a divorce petition filed, assist in legal separations, and represent those seeking to begin a divorce only under certain circumstances. This is a very counter-intuitive, principle base stance in the area of family law (I call it family law rather than divorce law because there are still many areas of practice touching on the family other than divorce).
That being the context, I am not in favor of the Covenant of Marriage legislation proposed. I see it as superfluous. Those having the religious conviction that would draw them to a Covenant would already be making a covenant before God. Everyone else will opt for a regular marriage. I would suspect that some would pressure their partners into a covenant marriage: “If you really loved me you’d agree to the super-sized marriage.” This would start things off on an uneven foot. I can even imagine horrible discussions at dinner parties and bible studies: “Oh, did you hear that Marge and Bill only got a regular marriage.” “Marge, the poor dear – doesn’t she realize he is just waiting to upgrade in a few years.” Introductions would be awkward. “Pastor, I’d like to to meet my wife . . . oh, well, uhm, no – she’s not my covenant wife – just a regular one.”
Then there’s the jurisdictional issue. If you get a covenant marriage in Kentucky and then move to California, what law prevails. A divorce action is one where the court has jurisdiction of the marriage itself, so unless California wanted to honor a Covenant Marriage, then the plain old divorce would suffice.
Mainly, it is my believe that legislation should reach only so far into one’s life. Many spiritual beliefs and religious convictions should remain with the church and between an individual and God and not become law. I agree that people should be open with their prospective spouse, engage in pre-marital counseling, and take it seriously when they marry. I agree that counseling should be sought to resolve conflict leading to a divorce and that one should try other steps including legal separation for a year or more prior to taking that final step to divorce. I do not believe the state should be in the business of regulating those behaviors and choices.
I am sure proponents would say that the state is not regulating it absent the choice of the parties agreeing to the covenant. That is true to an extent – however, we are talking about human beings who develop and change over the decades of their lives. They are not businesses where we can entirely reduce things to contract law. No, it may be chosen to the best of their knowledge at the moment when the hormones are flowing and no one is truly sane. But, decades later, it is the state going too far in regulating what amount to religious convictions.
Here’s the bill: Covenant of Marriage.
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