CHILD SUPPORT BASICS
Revised Seventh Edition October 2012
Table of Contents
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NOTE: The laws for child support have terms and meanings you need to know. If you see a new term or one you do not understand, look for it in this glossary.
The amount paid for a child’s basic expenses. Basic expenses are things like, food, clothing, housing and other costs that have to do with the child’s care. The court sets this amount by using the child support guidelines.
Child Care Support
The amount ordered by the court to help pay for work or education related child care costs
The money paid to help raise a child. It is a combination of basic support, medical support and child care support.
The parent or person that a child lives with. Sometimes called “obligee” in child support cases.
Federal Poverty Guidelines
A chart showing the level of poverty for different income levels and household sizes. The federal poverty guidelines are used to determine the child support “self-support reserve.”
Gross income for setting child support is different than gross income for tax purposes. For child support it takes your “Monthly Income Received,” plus social security or veteran’s benefit paid to a child because of a parent’s disability, plus potential income, minus spousal maintenance or child support ordered to be paid.
Income Available for Support
The amount of gross income above the “self-support reserve.”
The child of both parents in the support proceeding.
Sole legal custody means only one parent has the right to make decisions about the child. Joint legal custody means both parents make decisions together.
Medical support is the amount of support ordered by the court to help pay for medical insurance premiums, a contribution toward MinnesotaCare or Medical Assistance, or costs not covered, including payments owed.
Monthly Income Received
Any form of regular payments, like wages and salaries. It can also be income from self-employment, worker’s compensation, unemployment, some pension and disability payments (such as RSDI or veteran’s pension or disability retirement payments), retirement benefits, and spousal maintenance. Monthly income received may also include “potential income” if a parent works less than 40 hours per week. Monthly income received does not include public assistance benefits (like MFIP payments). It is calculated before any pre-tax deductions.
Non Custodial Parent
The parent that the child does not mainly live with. Also called the “obligor” in child support cases.
The child of one, but not both parents in the support proceeding. For example, a child from a different relationship. There are 2 ways that nonjoint children affect child support. (1) A nonjoint child mainly lives with the parent involved in the support case and that parent is legally obligated to support the child. Then a deduction is given from gross income to calculate child support in the new case. (2) A nonjoint child who does not mainly live with the parent in the support case, but the parent is ordered to pay child support for that nonpoint child. Then the amount of that child support order is deducted from the parent’s monthly income for support to calculate child support in the new case.
A person who gets child support or spousal maintenance.
A person who pays child support or spousal maintenance.
Parental Income for Determining Child Support (PICS)
A parent’s gross income minus any deductions for nonjoint children. This number is used to figure out the amount of basic support, child care support, and medical support.
The time a parent spends with a child. It does not matter who has custody. Parenting time used to be called visitation.
Parenting Expense Adjustment
The amount of money that the parent without primary physical custody can subtract from the basic support they pay. It looks at money spent during parenting time. For setting child support parenting time has to do with the number of overnights a child spends with the parent, unless the court decides something different.
Sole physical custody (or Primary physical custody) means that one parent provides the primary home for a child and is responsible for most of the day-to-day decisions about the child. Joint physical custody means that the child lives with both parents.
If a parent works part-time but is able to work full-time, the court can calculate what they could make if they worked more. This is called potential income and can count as income in setting child support.
The amount of income that is reserved for an obligor’s living costs each month. This means that the amount of child support will not leave an obligor with less than this amount to live on, unless a minimum order applies. The self-support reserve is 120% of the federal poverty guideline for one person, which is $1,083 for 2009.
Social Security and Veteran’s Benefits
If a parent is retired or disabled and getting Social Security or Veteran’s benefits (other than SSI), the amount of the parent’s benefit is part of his or her income. If there is a benefit payment to the child because of the parent’s disability or retirement, the amount paid to the child is added into the retired or disabled parent’s child support column, and later deducted from child support.
The money a person is ordered to pay to a spouse in a divorce case. Also called “alimony.”
When the Internal Revenue Service (IRS) or the Minnesota Department of Revenue take a parent’s tax refund for child support.
CHILD SUPPORT BASICS
What is child support?
"Child support" is the money that a parent pays to help support a child that does not live with them. The child might live with the other parent, or might live with someone else. Every child has a right to be supported by both parents.
In child support proceedings, the parent or person the child lives with is called the “custodial parent” or “obligee.” The "non-custodial" parent or “obligor” is the parent that the child does not primarily (mainly) live with. The non-custodial parent supports the child by paying a certain amount of money to the custodial parent every month. Child support can also include payments for part of childcare and medical insurance and medical costs not covered by insurance.
How do I get child support?
A parent, a custodian or the county must bring some type of legal action to get an order for child support. A Judge or Magistrate can order child support in a
- paternity action
- domestic abuse proceeding
- child custody action
There can also be an action for just child support. Most people need the help of an attorney or the local child support agency to start the legal action to get a child support order. Your local child support office can help you get a child support order, using the Child Support Expedited Process starting on page 19. You can also find self-help services through the courts. For an online listing of self-help legal services by court district, go to the state courts website at http://www.courts.state.mn.us/selfhelp/?page=251.
Do I have to be the child's parent to get child support?
No. You do not have to be a child's parent to get child support. If a child lives with you and depends on you for support, you may be able to get child support from either or both parents. For example, grandparents raising their grandchildren may get child support from the parents. This booklet talks mostly about parents' rights to support, because parents are usually the people paying and getting child support, but the information in this booklet can be used by grandparents and other people caring for children.
Minnesota uses guidelines to help set the amount of child support. The guidelines look at things like how many children are being supported and gross monthly income. Gross income is your total income before taxes are taken out. In January of 2007, Minnesota started using a new law that has new guidelines for setting child support. It is called “income shares.” “Income shares” means that the gross income of both parents count in setting child support.
Child support is usually set at the guideline amount. But a Judge or Magistrate can set child support above or below the guideline amount if there are special circumstances. For example, child support may be set above the guidelines if the child has special health or education needs. It may be set below the guidelines if paying the set amount of child support would be too hard for the person paying child support.
You can use the online child support calculator created by the Department of Human Services at http://childsupportcalculator.dhs.state.mn.us/, to help figure it out. You can also bring the worksheets from the calculator to the hearing.
“Income shares” is the law used to figure out child support amounts. It looks at the gross income of both parents and sets support based upon each parent’s proportion of income. Gross income for child support includes more than just a parent’s wages or earnings. Things like other children living in the home, other child support or spousal maintenance orders and potential income are also looked at when figuring out gross income.
What are the different kinds of custody and how do they affect child support?
There are two kinds of custody in Minnesota. Legal custody is the right to make decisions concerning the children. A court can award sole legal custody to one parent, meaning only that parent has the right to make decisions. Usually, the Court will order joint legal custody, meaning that both parents make the decisions together. Legal custody does not affect child support in any way. The amount of child support ordered will be the same, whether the parties have joint legal custody or one parent has sole legal custody.
Physical custody is the right to have the child live with you. Usually, one parent has sole physical custody and the other parent has parenting time (which used to be called “visitation.”)
In some cases, Courts will award joint physical custody. This means the child lives some of the time with each parent. Joint physical custody is usually given when the parents live near each other and get along very well and the Judge decides it is in the child’s best interests. In these cases, the Judge figures out the basic support amount using a slightly different formula. Child care and medical support are ordered just like other cases.
Basic support looks at both parent’s gross income from all sources. This is income before any pre-tax deductions like a pension plan. Income may include potential (imputed) income if a parent works less than full-time but could be working full-time. If a parent gets spousal maintenance (alimony) or benefits because of a disability or retirement (other than SSI) that is also included as income for child support.
If a parent is paying spousal maintenance in a different case- or ordered to pay it in this one the amount of support is deducted from the income. If the parent is paying child support in another case, that amount is deducted. There may also be deductions for non-joint children living in a parent’s home.
Each parent’s share of the combined income is calculated. The parents’ combined incomes are applied to the guidelines chart, and together with the number of joint children they have, a number is taken from the chart. That number is divided by each parent’s percentage of combined income.
For the parent without primary physical custody of the children, there may be a deduction for costs that come up during parenting time. This is called the “parenting expense adjustment”. The amount of the deduction depends on how much parenting time the court orders. For example:
- If the court sets parenting time less than 10% of the time, there is no deduction.
- If the court sets parenting time between 10% and 45%, there is a 12% deduction.
If the court orders parenting time of 45.1% or more, that is equal custody, and a different formula is used.
Under the law, an order for “joint physical custody” does not by itself affect the amount of child support. Now the amount is based on the number of overnights that each parent has with the child. If each parent has at least 45.1% of overnights with the child, or other significant time that the court determines, the court will use another formula instead of the parenting expense adjustment.
Figuring out basic support is the same as talked about in the section above - by figuring out each parent’s share of their combined incomes. But, with joint physical custody the number from the guidelines chart is multiplied by .75. That number is then multiplied by each parent’s percentage of income (PICS percentage). The lower number is subtracted from the higher. What is left is the amount of basic support paid.
The law requires each parent to file a financial affidavit when they file papers with the court. This applies if the court is figuring out child support for the first time or changing an existing order. The affidavit is available on the Court’s website at www.mncourts.gov/forms (click on the category “other”). A copy of the financial affidavit can also be found in the back of this booklet on page 41. There are several documents that each parent must file with the form, including pay stubs and tax returns. If you do not file the affidavit and attachments, it is possible that the court will not allow you to testify about your own income, but the court may let the other parent or the county testify about your income. See page 32 for more details on serving the other parent and the county and filing the financial affidavit with the court.
After basic support, child care support and medical support are calculated, they are added together. Then the court subtracts the self-support reserve, which is 120% of the federal poverty guideline for one person, from the obligor’s gross income for child support. The self-support reserve for 2010 is $1,083. If the amount of income above the reserve is less than the guidelines amount for basic support, child care support and medical support combined, the obligations are adjusted so that the total child support isn’t more than the amount of income over the self-support reserve. If a person’s income is below the reserve after adjustments, then a person will only have a minimum child support order. The minimum order amounts are $50 for 1 or 2 children; $75 for 3 or 4 children; or $100 for 5 or more children.
The federal poverty guideline is a chart of income levels that the government uses to decide if people are poor. It changes every year. Gross monthly income means all of the income you earn each month, before anything is deducted for taxes or other things.
If either parent is not following the first order for child support, the other can ask for a review hearing. You have to ask for a review in the first 6 months. It is not automatic. The request form to ask for a review is attached to the order. You can also get one from the court administrator. At the hearing, the court will look to see if both parties are following the rules in the order for child support, custody or parenting time. The court cannot change the order, but can put penalties on the parents for not following the order.
What Income Is Counted?
Income is not limited to wages from working. Minnesota law counts the following as income that can be used to pay child support
- unemployment compensation
- self-employment income
- commissions and bonuses
- some disability payments
- pension payments
- other periodic payments like rental income or interest income
Generally, public assistance and income from a second job are not counted as income when setting child support. Overtime can sometimes be counted. The income of a parent’s new spouse cannot be counted.
Sometimes parents are not able to work because they are chemically dependent, mentally ill or disabled in some other way. In those cases, parents are not ordered to pay child support unless they have other income. The disabled parent has to provide medical records and other information to prove they cannot work.
Sometimes parents quit their jobs or take a job that pays less so they do not have to pay child support. Some parents are not working for other reasons. Some parents may be ordered to pay child support based on what they could earn, this is called “Potential Income.”
The children of one, but not both, parents in a child support case are called “non-joint children.” Non-joint children can affect the amount of payment in a new child support case. Sometimes non-joint children live with the parent who is going through a child support case. Sometimes the non-joint child lives in a different house.
If a parent has a child support order to pay child support for a “non-joint” child who lives in a different house, the amount of the child support order is deducted from the parent’s gross monthly income when figuring out child support for the new case.
If a non-joint child is living in the house with the parent going through a new child support case, a non-joint child deduction is given to that parent. The amount of the deduction is figured out by the court. Each parent may get a non-joint child deduction for up to 2 nonjoint children. This deduction lowers the parent’s gross monthly income when figuring out child support in the new case.
The parent with custody often has to pay for child care while working or going to school. The non-custodial parent might have to pay a share of these child care costs.
Figuring Out the Average Child Care Cost
The first step in dividing child care costs is figuring out the average amount paid for child care each month. Costs can change during the year, especially for children in school. The parent with custody needs to show proof of the child care costs during the year, like receipts or bills. This information is used to figure the average child care cost.
For example, if the custodial parent pays $200.00 per month for child care during the school year and $400.00 per month during the summer, the average child care cost will be $250.00 per month.
9 months X $200.00 = $1,800.00
3 months X $400.00 = $1,200.00Total for the year = $3,000.00
$3,000.00 per month ÷ 12 months = $250.00
The non-custodial parent usually pays a set amount toward the average child care cost. It will be the same each month even when costs are different. The parent with custody needs to budget the child care money carefully to make sure it lasts and covers the months when costs are more- like in the summer.
Dividing the Cost Between Parents
Not all child care costs are divided between the parents. The non-custodial parent does not have to help pay for child care when the custodial parent is doing something other than working or going to school. Only work and education related child care costs are divided. Costs are divided after estimating the custodial parent’s tax credit for the child care expense.
Based on each parent’s PICS (Parental Income for Determining Child Support) income the Judge or Magistrate will order each parent to pay a share of the remaining child care costs. For example, if the custodial parent has 60% of the parties’ PICS income, he or she pays 60% of the remaining child care costs. The non-custodial parent pays 40%.
If the parents agree or the court orders it, one parent may provide some childcare for the children while the other parent is working or in school.
What if I can’t afford to pay for child care?
Paying for child care can often be hard for parents. Low-income parents with custody may be able to get a child care subsidy. You can apply for a child care subsidy at your local child support office. If you are getting MFIP benefits and child care costs keep you from working, you should talk with your caseworker. Your employment plan may need to include help with child care costs.
Minnesota has 2 ways to help a low-income parent put money toward the cost of child care.First, if the custodial parent gets child care assistance (subsidy), the non-custodial parent’s obligation will be the lesser of their “share” of after-tax child-care costs. Or it may be a contribution determined by applying the non-custodial parent’s income to a sliding fee scale.
Second, if a parent’s court-ordered obligations for basic support, child-care and medical support leave that parent with income less than the self-support reserve, either the order will be adjusted or that parent will pay only a minimum order.
What is medical support?
In a perfect world, every child would have health insurance and every parent would be able toafford health care for the child. To reach this goal, state law says that every child support order must deal with the issue of medical support.
Medical support means providing medical and dental insurance for the child, if possible. Medical support also means the parents split medical and dental costs for the child wheninsurance does not cover it.
Both the custodial and the non-custodial parent can be ordered to provide medical support.
Who Insures the Child?
If both parents can get medical and dental insurance at a group rate through work or a union, the Judge or Magistrate will order the parent with better coverage to insure the child. If only one parent has insurance, the Judge or Magistrate will order that parent to insure the child. But the cost of the insurance will be split between the parents. The amount each has to pay is based on their incomes.
What if I can't afford to pay insurance or medical support?
Sometimes, neither parent can get insurance at a group rate. Or, the insurance a parent can get from work or a union is too expensive. Several things can happen in these cases. If the Judge or Magistrate thinks the non-custodial parent can afford it, he can order that parent to buy private medical insurance for the child. But, the law says that a parent can only be ordered to pay money for a child’s medical support if he or she has enough money to do that. If there is no insurance available and the custodial parent is eligible, there are 2 programs that help pay the medical costs of low and moderate income families with children. They are
1. Medical Assistance (MA) - a public assistance program that covers medical costs
2. Minnesota Care - a government insurance program for people who cannot get insurance at work
You can call your county child support office to find out where to go to apply for these programs. For the number in your area call (651) 296-2542. It’s a very good idea to apply for these programs if you cannot get insurance through work.
If a parent’s court-ordered amount for basic support, child-care and medical support leave that parent with income less than the self-support reserve, either the order will be adjusted or the parent will only pay a minimum order.
If the child is getting MinnesotaCare or Medical Assistance benefits, the non-custodial parent might be ordered to pay a certain amount of money each month toward the cost of MinnesotaCare or Medical Assistance. The amount is figured out on a sliding fee scale.
Who Pays The Medical And Dental Expenses That Insurance Doesn’t Cover?
The Judge or Magistrate will also divide the medical and dental expenses for the child that insurance, MinnesotaCare or Medical Assistance does not cover between the parents. The share each parent has to pay is based on income.
You can apply to your local child support office for help with child support even if you do not get public assistance. If you are not on public assistance you must fill out an application and pay a fee. The child support office must help you
- Get a court order for child support, medical support and childcare expenses
- legally name the father of your children, if you were not married when they were born
- locate the parent who should be paying support
- collect child support or take action against parents who refuse to pay
- change the child support order
When your child support file is opened, your worker can give you information on your case. You will also get a participant number and a PIN number. You can use these to get information about your case 24 hours a day. You can learn how much child support is owed, the date of the last payment made and the name and number of your child support worker.
There are 2 ways to do this. There is an online way to check at www.childsupport.dhs.state.mn.us/Action/Welcome. You can also get information by calling the State’s Integrated Voice Response System (IVR System). When you call, you will need your Social Security Number or participant number and a PIN number. In the Metro Area, call (651) 215-5630 or, if hearing impaired, (651) 215-5629. If you live out state, call 1-800-657-3512 or 1-888-234-1208 if you are hearing impaired.
The child support office has certain time deadlines it is supposed to meet. You will find some of these time deadlines in the pages that follow.
The county office has to give an application for child support services to any parent who asks for it. If you ask for the application in person, they have to give it to you that day. If you write or call, they have 5 days to send it.
Starting a file
The county has to begin paper work and decide the next step in your case within 20 days after getting the application.
Getting the child support order
Once the county knows who the other parent is and where he/she is, the county has 90 days to get a court order for child support or deliver legal papers to the other parent.
Every month the county sends out notices of collection for child support
Every month the child support office has to send you a notice showing when it got support payments and how they distributed the money. For example, the notice should tell you
- how much was collected
- how much was sent to you
- and how much the child support office kept.
Distribution of child support payments
The county has 2 business days after they get the money to send it to the parent. If the money is a "tax intercept” they have 30 days after they get the money to send it out, in most cases. In a “tax intercept” the Internal Revenue Service (IRS) or the Minnesota Department of Revenue take a parent’s tax refund for child support. See page 36 for more information. If the parents are in different states, the county has 15 more days before they must send the money.
Review and adjustment
In a public assistance case, the county reviews the file every 3 years to check if the proper amount of child support is being paid. In a non-public assistance case, the county reviews the file every 3 years but only if you ask them to. They have 15 days after you ask for the review, and only have to do it once every 3 years. If the county decides more or less money should be paid for child support, they have 180 days, about half a year, to make the adjustment.
Hints on Working with the Child Support Office
It is important to remember that the child support office (including the County Attorney's office) is not your attorney. The job of the child support office is to get child support for children. The child support office will help both parents — the one getting and the one paying the child support. If you feel that you need an attorney to help you with your side only, you should get one. There is a list of Legal Services offices in the back of this book.
If you feel that the child support office is not meeting the time deadlines in your case, you should tell your child support worker about this. If your child support worker does not do a good job of answering your questions, you should contact his or her supervisor. You can also call the Department of Human Services, Office of Child Support Enforcement in St. Paul (651) 215-1714.
You have the right to ask your child support worker for a copy of your "Case Activity by Date" notes. This will say everything that has happened so far in your case. This sheet will have the private information about the other parent blacked out, such as his or her address and income. The child support office might charge you for copying the notes. Ask your child support worker about anything in the notes you don’t understand.
If you disagree with how the child support office handled the money or see a mistake, you can ask the child support worker (in writing) to review this. Make your request for review within 45 days. If you are still unhappy with the decision, you may ask the Minnesota Department of Human Services Office of Child Support Enforcement to review the decision, but you must make this request within 30 days. You may want to see if an attorney can help you. There is a list of legal services offices in the back of this book.
What If I Call My Child Support Worker To Find Out What Is Going On In My Case, But I Don't Hear Back?
Your child support officer has certain obligations to you, and it is important to understand exactly what these are. The services that should be given to you and time lines for them can be found on pages 16 – 18 under "County Child Support Services.” You should carefully read these pages so you know exactly what to expect from the county.
Remember that your child support worker is not a counselor, or the police or the court. Do not expect him or her to do what they cannot. Your child support worker cannot
- help you with custody or parenting time (visitation) issues
- make the court system in your county move faster
- change your order without getting a court order
- give you information about the other parent’s employment, address or phone conversations
- change the law
- help you with personal problems that you are having with the other parent
When you call your child support officer or go for an appointment, try to have all the information and your questions organized. Write your questions down in a list. The child support officer is handling many cases. If the child support officer needs to call you, let him or her know the best time to easily reach you. Make it clear that you expect the child support officer to meet the time deadlines in your case, but do not expect your case to move faster than the deadlines or other cases in your county.
Minnesota has a special way to handle child support. It is called the "expedited child support process." This process is supposed to be easy to use and should result in timely and consistent child support orders.
In the child support expedited process, parents are given an opportunity to follow the guidelines and agree on how much child support should be paid. If the parents cannot agree, the case in most counties will go to a hearing before a “Child Support Magistrate.” In some counties a District Court Judge may hear the case.
The expedited child support process must be used if the county is providing child support services to you and the only issues in your case are
- child support
- medical support
- child care contribution or
- enforcement of spousal maintenance, if combined with child support
Some counties also use the expedited process for
- or child support contempt
Your child support case can be heard in district court if it also involves other issues such as
- custody, or parenting time (visitation)
- domestic abuse
- or property issues
Beginning the Expedited Child Support Process
To start the process, either parent may make a written request for services to the child support office. You can call the office in your county for an address where you can send your letter.
To get contact information for your county’s child support office, call 651-296-2542 or visit the Department of Human Services website at https://secure.childsupport.dhs.state.mn.us/mcso/participants/Action/Link/ChildSupportTopics.
If the child support office turns down your request for their help, you can still go to the court for child support. You may be able to get an attorney for free to help you. See the list of legal services offices in the back of this book starting on page 38.
An action to get child support or establish paternity starts with serving the other parent a legal paper called a Summons and Complaint. An action to change an existing child support order begins with the service of a Motion. The Complaint or Motion must have detailed information about both parents’ incomes and expenses A financial affidavit must also be served on the other parent and filed with the court. See financial affidavit information on page 10.
- The other parent must respond to a Summons and Complaint for child support in writing within 20 days.
- The other parent must respond to a Summons and Complaint for paternity in writing within 14 days.
- The other parent must respond to a Motion in writing within 14 days of service if there is no court date, or 14 days before a hearing, if the motion includes a court date.
If there is no response to a Complaint or a Motion within 20 days, the case may proceed by default. Default means that the child support magistrate may issue a child support order based upon the information in the Complaint or Motion and any supporting documents that were served on the other parent.
When is a Hearing Required?
A hearing will be held if
1. the other parent did not respond and the Summons and Complaint or motion did not have enough information
2. the parents cannot agree on child support
The hearing must be scheduled within 60 days of the date of service of the complaint or motion. Both parents will get a notice of the time, date and place of the hearing. Both parents have the right to appear at the hearing. If you cannot appear in person, you may ask to appear at the hearing by telephone or interactive T.V. The Judge or Magistrate does not have to grant the request, but you can ask.
What You Should Bring to the Hearing
1. Proof of your income (bring a recent pay stub or other written proof of your income)
2. The amount of child support you pay for other children, if any (bring a copy of the most recent order, if you have one)
3. The amount of spousal maintenance (alimony) you pay or get (bring a copy of the most recent order, if you have one)
4. Your monthly expenses (make a list of your average monthly expenses and bring it with you to the hearing)
5. Whether or not you can get medical and dental insurance through your employer or a union and how much it costs
6. Medical or dental bills for the children that are not covered by insurance or public assistance and that you want the other parent to help pay
7. How much you pay for child care (bring a statement from your day care provider or other written proof of how much you pay)
If you used the online child support calculator at http://childsupportcalculator.dhs.state.mn.us/, you can also bring the worksheets from the calculator to the hearing.
What Happens at a Child Support Hearing?
At the start of the hearing, the Child Support Magistrate will explain the purpose of the hearing and the way the hearing will proceed. The Magistrate will check to see who is present and if the parents agree on any facts or issues. It is a good idea to talk with the other parent before the hearing, to see if you can agree on any part of the proposed child support order.
Presenting Your Case
Next, each parent will have a chance to present information to the Judge or Magistrate. You can do this by testifying yourself, by having witnesses testify, and by giving written documents to the Magistrate.
Note: If you plan to call witnesses besides yourself, you must notify the other parties in writing at least 5 days before the hearing. The notice must give the name and address of each witness and a brief summary of what the witness will say. If you plan to bring documents, make sure you bring enough copies so the Magistrate, other parent, and the child support office all get one.
The Magistrate will ask the parents to take turns. First, one parent takes an oath to tell the truth and provides information to the Magistrate. The person testifying is a witness. The Magistrate may have questions for the witness. When the witness is done talking, the Magistrate will give the other parent a chance to ask the witness questions. That parent then calls any other witnesses he or she might have.
When the first parent is done, it’s the other parent’s turn. The same procedure is followed. The other parent is sworn in and becomes a witness. He or she gets a chance to give information to the Magistrate, answers questions, and calls any other witnesses to testify. Do not talk or interrupt when it is not your turn to talk. This will only irritate the Child Support Magistrate.
Do not raise issues other than child support, such as custody or parenting time (visitation). Remember, the Child Support Magistrate doesn’t have authority to decide issues other than child support, medical support and child care contributions in these hearings. You will only waste everyone’s time by raising issues that the Magistrate can’t decide.
Summarize the information in writing as much as possible. That way, you can give the information to the Magistrate quickly and you won’t forget it.
The Magistrate will either make a decision orally at the hearing or take the case under advisement. Sometimes, the Magistrate will leave the record open for a limited time to permit one or both parties to submit additional information before making a decision. Once the case is decided, the Magistrate mails each party a child support order that contains the Magistrate’s decision. The Magistrate must issue the order within 30 days of the close of the record.
What if I am unhappy with the order?
If there are mistakes in the order, either parent may bring a motion for correction of clerical mistakes, typographical errors or errors in calculation. This motion may be brought at any time and must be served to the other parent and filed with the Court. The Child Support Magistrate who issued the order reviews the case and generally there is no hearing.
If either party is unhappy with the order, they can bring a motion for review. A motion for review also must be brought within 20 days after receiving the order. The parent requesting review of the order can choose to have the Child Support Magistrate or a District Court Judge review the order. Again, there is generally not a hearing and no new information may be submitted unless the Child Support Magistrate or Judge requests it.
Either parent may appeal the initial order directly to the Minnesota Court of Appeals. You may need an attorney. There is a list of legal services offices in the back of this booklet starting on page 38.
What if the custodial parent is on public assistance?
If the custodial parent is on public assistance such as MFIP, Medical Assistance or Minnesota Care, or is getting a child care subsidy, the state is helping pay support to those children. Custodial parents who get public assistance must
1) “assign” or give the right to get child support to the state to repay the support the state gives them and
2) help the county determine who the other parent of the child is and set a child support order.
MFIP – If you get MFIP cash, the county child support office will “pass through” to you all of the current child support that it collects on your behalf. The amount of child support that you get will reduce the amount of MFIP cash that you get dollar for dollar. The reduction in MFIP happens two months after the child support is collected. For example, if you usually get $300 in MFIP cash, and the county collects $250 in child support in May, your MFIP will be reduced to $50 in July.
Child Care Subsidy - If you get a child care subsidy, the county will keep that portion of the child support order that is designated as a child care contribution.
Medical Assistance or Minnesota Care - If you or your children get Medical Assistance or Minnesota Care, that county will keep that portion of child support that is designated as medical support.
When the custodial parent is on public assistance the county may also ask for a medical support order and an order for childcare expenses to pay itself back for providing medical assistance, Minnesota Care, or subsidized childcare. Also, the county may ask the court for an order for the person paying child support to repay the public assistance paid to you in the past 2 years.
If the non-custodial parent gets public assistance, it is not counted as income when determining child support. But, the non-custodial parent may still be required to pay some child support depending on the type of assistance they get and their ability to earn income.
What if the custodial parent stops getting public assistance?Who gets the child support?
If the custodial parent stops getting Medical Assistance, MinnesotaCare, or child care assistance, the medical or child care support part of the child support order will be sent to the custodial parent. The county still collects the money from the obligor but will forward it to the custodial parent. Any back child support owed for the months the custodial parent got public assistance goes to the county.
I am on public assistance but I do not want the county to try to collect child support because I am afraid of being hurt by the other parent of my child. What can I do?
In certain cases, where the custodial parent has been
by the non-custodial parent, a legal proceeding for child support might make the situation worse. If this is true for you, ask your financial worker about a "good cause exception." If you have a good cause exception, the county cannot bring a legal proceeding for child support against the other parent without your permission.
A custodial parent may also ask for a good cause exception if he or she believes that a legal proceeding for child support might result in physical or emotional harm to them or the children. A “good cause exception” lasts for 1 year. After 1 year, the child support agency will review the case to see if getting child support would still result in physical or emotional harm to the custodial parent or children.
If you and the other parent have never been married, then Minnesota law gives the custody of the child to the mother in the beginning. The father has to be legally declared the father of the child before
- he has any rights to custody
- he has any rights to parenting time (visitation) and
- he has an obligation to pay child support
Minnesota uses a form called Recognition of Parentage (ROP). Both parents can sign and file it with the Department of Health. This form is like a court order and tells who the parents of a child are. Before signing it, both parents should carefully read all the information that comes with the form. Be sure you understand it. There are legal consequences to signing it. Both parents should talk to an attorney if they have any questions at all about whether to sign. Do not feel pressured into signing if you have questions about the form or do not completely understand it.
If either parent has any question at all about who the biological mother or father is, the form should not be signed. Courts can order blood or genetic testing to determine who the parents are.
If you need more information about Recognition of Parentage, you can get materials from the Minnesota Department of Human Services at (651) 256-2542 or get the booklet “Rights and Responsibilities of Unmarried Parents” from your local legal aid office.
Sometimes the parent with the child does not know where the other parent is.
Finding the other parent
If you do not know where the other parent is, the county has to look through things like tax and employment records to try to find them. The county has 75 days to do this.
The county will try to find out where that person lives, plus where he/she gets his/her money. If that person is in another state, the county has 20 days to start working with that other state. If the county can't find the other parent they must try again every 3 months or right away if they get new information.
Proving he/she is the other parent
The county must try to deliver legal papers to the other parent within 90 days of finding them. Once the papers are delivered to the other parent, the county must get a court order showing that person IS the parent, or get a blood test showing the person IS NOT the parent.
Getting child support from a parent who lives in another state is very difficult if that parent does not want to pay. Minnesota (and other states) update their laws regularly to try and make it easier to get child support from another state. Larger counties have child support officers who deal only with out-of-state cases.
There are times when Minnesota cannot set child support because the parent who is supposed to pay lives in another state. Minnesota then must ask the other state for help in setting and collecting child support. If the other state is not cooperative, or has a backed up system, then it takes a long time.
Getting payment from another state
Where the parents live in different states, the state looking to get the child support money has 20 days after finding the other parent to send that parent's state a request for assistance and the information they have on that parent. The other state has 10 days to send the request to the right county or back to the first state if the parent is not there. The state looking to get child support must send any new information it finds within 10 days of finding it.
Every child support order must have an income withholding order, unless the parties agree not to use automatic income withholding, the Judge or Magistrate agrees and the custodial parent does not get public assistance. Automatic income withholding means that the child support amount will be taken out of a parent's paycheck. The county will let the employer know that they are supposed to start keeping the child support amount out of the paycheck, and send it to the county. Then the county must send it on to you within 2 business days. If you have an old child support order that has not been recently changed, the income withholding order may not be a part of your child support order, but you can ask the county to start withholding.
The other parent promises to pay the child support to me on time every month. So do they have to take the child support amount out of the other parent's paycheck?
The parents can ask the Judge or Magistrate to allow the non-custodial parent to make child support payments directly to the custodial parent. If you asked for services from the county to help with child support a court will only allow direct payments if
- the custodial parent does not get public assistance and does not want the county to continue to provide services and
- the court has good cause to stop withholding (taking money out of the paycheck) and it is in the best interests of the child or
- both parents sign an agreement that shows how payments will be made.The agreement must be reviewed by the court
If the county is not providing services a court will only allow direct payments if
- The custodial parent does not get public assistance and
- the parents sign a written agreement
The child support is withheld from the other parent’s paycheck, but I do not get it right away. Why?
The employer has 7 days from the date it withholds child support from a paycheck to get it to the state payment center, and the state can take 2 days to get it to you. The employer might also take 14 days to get the payroll system set up so that the child support amount is regularly going to the state. If the other parent changes jobs, then there may be some time that the system is not working the way it should.
If you are getting a new or changed child support order, it may take a few weeks for the Judge or Magistrate to sign it and make it effective. These are very frustrating problems for the parent who is depending on the child support. But, more child support is collected using income withholding than when it is not used.
Employers are required to withhold child support from a paycheck and cannot discriminate against an employee who has a child support order.
What if the parent who is supposed to pay child support is selfemployed?
Income withholding cannot be used when a parent is self-employed. Unfortunately, it can be difficult to get child support from a self-employed person.
Your child support order will be increased every two years in May because of cost of living increases. This is sometimes called a COLA (cost of living adjustment). The COLA increase should happen automatically. You can ask for a COLA if it does not happen automatically, or ask that the COLA be denied. You can get forms and instructions from the Court Administrators office in your county or ask your local child support agency to help by calling 651-296-2542 or visiting the Department of Human Services website at https://secure.childsupport.dhs.state.mn.us/mcso/participants/Action/Links/ChildSupportTopics.
Either parent can ask for other changes to the child support order at any time, by bringing a motion to modify (change) support. But only certain things are seen as reasons to modify a child support order.
- A change of at least 20% in the obligor’s gross income
- A change in the number of joint children being supported by the obligor
- A parent or other caregiver of a joint child starts getting public assistance
- There is a large change in child care costs
- There is a change in availability of medical or dental coverage
- A joint child becomes disabled
- Both parties agree to change (modify) the order
If a change is being asked for because of a change to child care or medical support, then only that part of the order changes.
A Judge or Magistrate will only modify a child support order if there has been a "substantial change" that makes the order you have unfair. A $75 and 20% difference in the guideline child support amount is substantial. Here are things that could change a child support order
- a child becomes an adult
- one of the parents earns more or less money
- the child or parents need more or less support
- one of the parents has started getting public assistance
- the order did not have medical support, or a child has new, extraordinary medical expenses
- the order does not divide work and education related child care costs between the parents, or those costs have changed
Child support does not automatically change when one of the above things happen. You or the County must bring a motion asking a Judge or Magistrate to issue a new order. The old order stands and will be enforced until the Court issues a new order. This is true even if both parties agree to a change between themselves.
Take action immediately if you feel that your child support order needs to be changed.
State law says that the Court can only change support starting from the day that you or the County mails a copy of the “motion to modify support” to the other parent. Minnesota law does not let you collect the new amount of support before that time.
If you need to bring a Motion to change your Child Support Order, you will have to pay a motion fee of about $100. If you are low-income you may ask the Judge to not make you pay this fee.
If you didn’t pay a filing fee when the original child support order was decided, you may have to pay that fee too, unless you have an “In Forma Pauperis Order” (IFP) that is still in effect.
How Do I Do It?
Either you or your local child support office can ask a Judge or Magistrate to change a child support order by bringing a “motion to modify support.” This is a written statement that tells the Judge or Magistrate what you want changed and why.
One Way: Ask Your Local Child Support Office to Review and Adjust the Order
One way is to change the child support order is to ask your local child support office for help. You should ask them to do this by writing to them. You will need to give them the reasons why you think the child support order needs to be changed. If the child support office accepts your case for review and adjustment, they will bring a motion to modify support and will use the “Child Support Expedited Process” to get a new support order. For contact information call 651-296-2542 or visit the Department of Human Services website at https://secure.childsupport.dhs.state.mn.us/mcso/participants/Action/Links/ChildSupportTopics.
Due to limited staff and resources, the child support office is not always able to accept your case. The child support office is only required by law to “review and adjust” your child support order once every 3 years. If the child support office decides to review your case, they may not be able to start work on your case right away. For these reasons, you may want to consider taking action to modify the order yourself.
Another Way: Ask the Court to Change the Order Yourself
The other way to modify support is bring a motion yourself or with the help of an attorney. The Court Administrator’s Office at the Courthouse in your County has child support modification forms for anyone who asks for them. The forms are easy to use and come with easy to follow instructions. You can also find the forms online at the Court’s website: http://www.mncourts.gov/Default.aspx?page=513&item=60&itemType=packetDetails
Follow These Steps
1. Complete the Forms
The form packet will come with an Affidavit (written statement). Fill in all of the information asked for in the Affidavit.
Attach proof of your income to the affidavit. If you have wage income, attach copies of your last 3 pay stubs. If you have other types of income, attach some type of written proof showing how much money you get. You will also have to complete the financial affidavit and attach any additional information about sources of income.
Once you have filled out the affidavit and have attached proof of your income, sign the affidavit in front of a notary public. You must get your signature notarized.
Signing in front of a notary is swearing that you have told the truth when you sign the affidavit. You can find a notary public at most banks. Court Administrator’s offices also usually have a notary public on staff. There may be a small charge for having your signature notarized.
When you have completed the affidavit, ask the staff at the Court Administrator’s Office to give you a hearing date. You will need to fill in the date, time and place of the hearing on the Motion that comes with the forms. You should also sign and date the Motion and write your address below your signature.
2. Serve Your Motion
When you have finished the Motion and the Affidavit, make 3 copies of each. These papers have to be mailed, but you cannot mail them! You have to have another person who is at least 18 years old send them. One copy of the set is mailed to the other parent; the second copy is mailed to your local child support office, and the third copy is for you to keep for yourself. The person who mailed the papers has to fill out the “Affidavit of Service By Mail” that comes with the packet to prove that they mailed the copies.
3. File Your Motion
Some information is private and should not be seen by the public. In order to keep this kind of information private, there are two different forms you must fill out and file along with your papers in the court. These are Forms 11.1 and 11.2 and you can get them from the court administrator or online at http://www.mncourts.gov/Default.aspx?page=513&item=60&itemType=packetDetails
If you file papers that have information about you, the other parties, and your child(ren), you need to file Form 11.1. This protects things like all social security numbers, employer identification numbers, and financial account numbers that are listed on papers you file with the court. The information is blackened out (crossed out) completely. If you do not file Form 11.1, these numbers could be seen by the general public. You could also be charged court costs because you did not keep these things private.
Form 11.2 is used to list documents that have your financial information on them. This keeps them private. Some examples of things that should be kept private are
- Paycheck stubs, employer statements, W-2 forms, or business income and business expenses
- Copies of your tax returns and schedules
- Bank statements
- Credit card statements
- Check registers
You must “file” your Motion, your Affidavit, and the 2 Affidavits of Service by Mail with the Court Administrator’s office at least 5 days before the hearing. You do this by either mailing or handing the original copy of each form to the Court Administrator’s Office.
4. Gather Information
The child support office can get a print out of a persons reported earnings from the state of Minnesota. They have to give the court a wage print out for each party when a motion to modify support is filed. If you do not get a copy of the wage print out, call your child support office and ask for it.
If the other parent files papers, a financial affidavit must also be filed. The parent filing the affidavit must attach supporting information (like pay stubs) unless the court says they didn’t have access to it.
You can also use a “subpoena” to get information about the other person’s income. A subpoena is a court order requiring someone to produce information or to appear at the hearing.
You can get the subpoena from the Court Administrator’s office. You must ask for the subpoena, in writing, from the Court Administrator. The written request should say what documents you are asking for and give the name and address of the person you are asking to provide the information. Instructions on how to use the subpoena appear on the back of the form. You can ask a person to bring pay stubs, tax returns or other proof of their income to the hearing with a subpoena. You can also ask for proof of child care costs or of the type and cost of medical and dental insurance the other parent can get through work. There is a fee charged for each subpoena you ask for unless you have an In Forma Pauperis (IFP) Order from the court.
You can also simply ask the other parent to give you the information you need. State law says parents must cooperate in providing information to each other.
Finally, you and the Magistrate will have a chance to ask the other parent for information by questioning them at the hearing. If you don’t think the other parent will come and you don’t know how much money he or she makes, you can use a subpoena to make the parent come.
5. Go to the Hearing
Get there a half hour before the hearing starts. The Magistrate may want to start the hearing early if hearings scheduled before yours go quickly. Most important, you do not want to be late for your hearing. If the hearing is over when you get there, you lose your chance to have any part in the decision. They will make the decision without you. You can find a list of information that you need to give the Judge or Magistrate at the hearing on page 21.
Sometimes the Magistrate will make a decision right at the hearing. Usually, you will get an order in the mail after the hearing.
6. Review the Order
Read the order over carefully when you get it. You may want to ask for a change to the order if it has clerical errors, has facts wrong or was wrongly decided. You can also read the state court’s modification instructions at http://www.mncourts.gov/forms/public/forms/Child_Support/District_Court/CSD201.doc
When a Judge or Magistrate issues a child support order, the order will say when child support ends. Minnesota law defines a “child” as someone who is
- under 18 years of age or
- under age 20 and still going to high school or
- of any age who, because of physical or mental condition, cannot support themselves
Usually, the child support order will state that child support continues until the child turns 18 or 20, if still in high school. But this is not always true. You have to check your order.
Parents of disabled children should pay special attention to this issue. If you do not think your child will be able to support himself as an adult, tell the Child Support Officer and Magistrate when support is decided. That way, the Magistrate can order child support to continue until your child is self-supporting. If an order that you have now does not provide for continued support, you may want to bring a motion to modify the length of time that support lasts. Ask for modification before support ends, under the terms of the existing order.
Alert for Non-Custodial Parents!
If you are paying support for 2 or more children, the amount you have to pay does not automatically go down when one of them becomes an adult. You must bring a motion to modify the support amount. The ongoing child support payment will end automatically when all of the children become adults.
The other parent refuses to pay child support and I need the money. Why can't they just throw him or her in jail? Why should people be able to get away with not paying?
Collecting child support from an uncooperative person is one of the biggest challenges for
- the State,
- the custodial parent, and
- society in general
We all pay the price to support children who get no child support. Minnesota is constantly changing and updating the laws used to collect child support.
Enforcement for payments
If child support has not been made for 1 month, the county has 60 days to notice that and try to get the money. If there is no order for income withholding, the county must begin to withhold on the day the back due child support equals the monthly child support obligation.
Tax intercept submission
Each year the county and state must tell the Internal Revenue Service (IRS) and the Minnesota Department of Revenue (the state tax agency) if a parent owes back child support.The IRS will take the parent’s tax refund for child support. This is called "tax intercept."
Tax intercept is available in a public assistance case only if the parent owing child support has not paid in 3 months and the amount of back child support is more than $150. If the custodial parent does not get public assistance, then tax intercept is only available if the other parent owes $500 in back child support. If there is back child support owed to the state, the state will keep tax intercept collections, even if a parent is no longer getting public assistance.
Many things are being tried to improve the collection of child support.
- Child support is collected directly from paychecks.
- Contempt actions can be brought for non-payment.
- Tax refunds can be taken to pay for child support.
- Collection agencies can help collect child support.
- Professional licenses and driver's licenses can be suspended.
- Liens can be placed on vehicles and other property.
- Passports can be denied.
- Student grants can be withheld
Still, there are many parents who don't pay child support. Many times these people are either
- work for cash
- have very unstable employment histories or
- move around a lot
Counties spend huge amounts of money trying to locate these people and bring them into court, and in some cases, put them in jail. Some people just do not have any money to pay their child support. Others would rather be in jail than pay child support. When this is true, it may be difficult or impossible to collect from them.
If a child's parent refuses to pay child support, you should be sure that the county is trying everything possible. If you do not feel confident that everything is being tried, the Department of Human Services Child Support Enforcement Division can tell you what else you might do. Call them at (651) 296-2542.
I do not feel that I get enough parenting time (visitation) with my child and I am still expected to pay child support. Can I stop paying child support until I get my parenting time?
Parenting time and child support are two separate things. A non-custodial parent cannot stop child support if he or she is not getting parenting time. Also, a custodial parent cannot stop parenting time just because the non-custodial parent fails to pay child support.
You can get contact information for your county’s child support office and court administrators’ office from the Minnesota Department of Human Services’ ChildSupport Enforcement Division at 651-296-2542 or at their website: https://secure.childsupport.dhs.state.mn.us/mcso/participants/Action/Links/ChildSupportTopics