In some cases, it may not be necessary for a person seeking child support to retain an attorney. An unmarried mother may request that the county Child Support Enforcement Agency commence an administrative action to determine parentage and to calculate child support. If paternity is challenged, a genetic test will be performed. If you are named as a potential father in such an action and have any question that the child may not be yours, you should request genetic testing. Once paternity is confirmed, the agency will require both parties to provide information on income, insurance and its cost, daycare costs and other relevant information necessary to calculate child support. The agency will conduct a hearing and issue an administrative order which can ultimately be appealed to the Court of Common Pleas. You will receive a great deal of information concerning this process from the agency and you should read this information very carefully.
The agency will only recommend guideline child support when child support is established by administrative processes. Do not become frustrated with the Child Support Enforcement Agency for not deviating from guideline child support as they are simply not allowed to do this unless agreed upon by the parties (and this may even be limited if one party is receiving public assistance.) If you want a deviation from guideline child support, it will be necessary either to appeal the matter to Court of Common Pleas or institute an action in that Court. The Courts will generally consider deviation if there is roughly equal amount of parenting time or one party has substantial additional costs arising from long distance travel. Sometimes the parties will agree to deviate from guideline child support because one party has agreed to make substantial in kind contributions or has agreed to take on additional financial burdens. As a cautionary note, many people erroneously believe that because parents have equal time this means that there will not be any child support. The Court can, and generally will, order child support even when there is equal division of time when one parent’s income is substantially higher than the other's.
When faced with a child support order, the father may also wish to have the agency order visitation or grant him custody of the minor child. The agency does not determine custody. Please remember that under Ohio law an unmarried mother is considered to be the legal custodian of the minor child and the father does not have any visitation/custody “rights”. If you are involved in an administrative proceeding for child support, understand that unless the parties agree upon a visitation schedule, the agency will not order visitation as part of an administrative hearing. In order to establish visitation or seek custody, the father will need to file an action with the Court of Common Pleas. You should do this as soon as possible. More information on this subject is contained in the section on Father’s Rights.
A married parent who has the child and is living separate and apart from their spouse may also request the agency to conduct administrative hearings on child support. This is allowed so that married parties who have been abandoned by their spouse can seek and obtain support. Please remember that the agency does not determine custody and will proceed on the assumption that the requesting party has physical custody of the child. If you are married and your spouse has commenced such an action, it is probably best that you immediately seek to file for a divorce so that the Courts can determine not only temporary child support, but temporary visitation also.
If you are involved in a divorce, the Court will, as part of temporary orders, determine temporary custody if the parties are living apart and also order temporary child support if appropriate. Most courts do not make temporary orders concerning custody and child support if the parties are living together, although they may award attorney fees and determine what party pays which bills. If the parties are living apart the Court will usually conduct a non-oral hearing to determine temporary support and custody. This means that neither party appears in Court, but each side submits financial information and affidavits stating their position. It is important that you present the information you feel it is necessary for the Court to have at this hearing. As part of temporary orders, the Court can deviate from guideline child support. If, however, you are not in agreement with the Court’s decision, you have the right to request that an oral hearing be conducted so that you can appear and present evidence. This is supposed to be conducted within thirty days, but it is sometimes difficult to schedule such a hearing within that time. You should, however, file your request immediately as any revision of the order may be only be taken back to the date of filing of the request.
If temporary child support is awarded, the Court will issue an order authorizing establishing support and authorizing that the child support be paid through wage withholding. An issue that often arises in divorce cases is that although the support order is either effective immediately or on the date that the request was made for temporary orders, the process of wage withholding may take several weeks. This creates a dilemma. The person ordered to pay support should, if money is not being withheld, still pay the support order. The monies, however, should not be paid directly to the other parent. Instead, you should contact the Child Support Enforcement Agency and determine the account information and send payment directly to the agency. If payments are not made until child support is taken from the paycheck, there will be an arrearage immediately. The agency may then issue a withholding order for not only the amount of child support, but for an additional twenty percent of the original order. For example, if the original order is $100.00, then the agency will require that the employer withhold $120.00.
At some point the divorce will become final. If there is an arrearage from the temporary orders, the parties (or Court) must decide what to do about this arrearage. If the court or parties wish to insure that any monies owed as the result of temporary orders are still owed after the divorce, the entry must include language preserving these arrearages. If this language is not included, the arrearage is, in essence, eliminated.
As part of the final entry, the Court will determine the amount of child support, if any, and order wage withholding. If this is the first time child support has been ordered in the case, there may be the same lag between the order being issued and wage withholding that was discussed in the paragraph on temporary orders.
In a party has not paid support, then the party receiving support may file a motion requesting that the Court hold the person owing support in contempt. If the arrearages become significant enough, the agency may also file a contempt action on its own, particularly if the recipient is receiving state assistance which can be reimbursed through child support payments. If the person is found in contempt, they may be sentenced to some time in jail, which will be suspended provided they resume making payments as ordered, including additional amounts for arrearage. The Court may also award the other side attorney fees. If you are being cited for contempt, you may request a court appointed attorney as there is the possibility of jail. Whether you are entitled to a court appointed attorney depends on your economic circumstances.
In addition, under certain circumstance a party not paying support can be charged with criminal non-support. A second conviction will result in a felony charge. Similarly, a felony is charged if there is persistent non-support as defined in the statute. As this is a criminal charge, you may request a court appointed attorney and one will be appointed if you qualify.
If you are not paying support because of changes in employment status, it is important that you request a modification of your support immediately. In many case, the Child Support Agency will not conduct an administrative hearing on this issue until there has been a substantial passage of time. Accordingly, you should consider filing the case immediately on your own in the Court that issued the original order. Until there is a modification of the order, you will continue to owe the same amount of support. For this reason, do not simply ignore the issue as arrearage will continue to amass. Remember that the Court may make the effective date of the new order the date of the filing of your request.
The key principal to remember is that the issue of child support, like most other issues involving custody, remains under the continuing jurisdiction of the Court to modify orders if there has been sufficient change in circumstances. Accordingly, any substantial change in circumstances may warrant modification of child support, such as the birth of additional children, changes in employment, changes in the cost of insurance or alternations in the parenting schedule. Whenever there has been a significant change in your life, you may wish to consult an attorney to see how this could affect support obligations.