1. law, govt and politics

Florida’s
Child Support Benchbook
2012
Office of the State Courts Administrator
2
2012 CHILD SUPPORT BENCHBOOK
Table of Contents
TAB I - LEGAL OUTLINE
CHILD SUPPORT LEGAL OUTLINE ............................................................... 9
I. CHILD SUPPORT GENERALLY.................................................................. 9
A. Authority to determine child support ......................................................................................... 9
B. Custodial relationships/Parties ................................................................................................... 9
C. Jurisdiction and venue ................................................................................................................ 11
D. Procedures ..................................................................................................................................... 12
E. Factors to be considered when awarding support.................................................................. 12
F. Temporary vs. permanent support............................................................................................ 14
G. Concealment/parental interference with time-sharing schedule ....................................... 15
H. Inability to Waive Obligation ..................................................................................................... 15
II. ESTABLISHING PATERNITY ............................................................... 17
A. Establishment of Paternity for Children Born Out of Wedlock ............................................ 17
B. Affidavits and Voluntary Acknowledgments - §742.10(1), Florida Statutes ...................... 18
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C. Birth Certificates - §382.013(2), Florida Statutes .................................................................. 19
D. Court Proceedings - Chapter 742, Florida Statutes................................................................ 21
E. Scientific Testing - §742.12, Florida Statutes ......................................................................... 21
F. Trial ................................................................................................................................................ 23
G. Administrative Establishment of Paternity - §409.256, Florida Statutes ........................... 23
H. Probate .......................................................................................................................................... 31
I. Declaratory Relief ........................................................................................................................ 32
J. Children Conceived or Born During Wedlock ........................................................................... 32
K. Legal vs. Biological Father ......................................................................................................... 33
III. DISESTABLISHMENT OF PATERNITY ..................................................... 39
A. Relief from Judgment, Decrees, or Orders - Rule 1.540 Fla. R. Civ. P., ........................... 39
B. Statutory Disestablishment ........................................................................................................ 39
IV. ESTABLISHING SUPPORT ORDERS ....................................................... 45
A. Generally ........................................................................................................................................ 45
B. Health Insurance .......................................................................................................................... 46
C. Withholding ................................................................................................................................... 47
D. Life Insurance ............................................................................................................................... 47
E. Income deduction......................................................................................................................... 47
F. Mediation ....................................................................................................................................... 48
G. Arriving at the correct amount .................................................................................................. 48
Generally ...................................................................................................................................... 48
Gross Income ................................................................................................................................ 50
Unemployed or Underemployed parents ................................................................................ 50
No information available/imputing income ........................................................................... 51
Net income ................................................................................................................................... 52
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Deviation from the Statutory Amount ..................................................................................... 59
Child Care ..................................................................................................................................... 62
Retroactive Awards ..................................................................................................................... 62
Establishing income deduction orders ..................................................................................... 63
Enforcement of income deduction orders .............................................................................. 68
State Disbursement Unit/depository/direct pay ................................................................... 75
Extraordinary expenses .............................................................................................................. 76
Tax exemptions ........................................................................................................................... 77
Child support schedule in subsequent child situations......................................................... 77
V. COLLECTION AND ENFORCEMENT OF SUPPORT ....................................... 80
I. Generally ....................................................................................................................................... 80
II. Methods for Enforcement/Collection ....................................................................................... 80
VII. INTERSTATE AND INTERNATIONAL FULL FAITH AND CREDIT ........................ 88
III. Full Faith and Credit .................................................................................................................... 88
IV. The Uniform Interstate Family Support Act ............................................................................ 88
V. Jurisdiction .................................................................................................................................... 89
VI. Petition to establish support order/temporary orders .......................................................... 93
VII.
Direct Enforcement of Order from another State without Registration .................... 94
VIII.
Registration for Enforcement............................................................................................. 94
IX. Modification .................................................................................................................................. 95
VIII. MODIFICATION OF CHILD SUPPORT ORDERS ........................................... 98
A. Generally ....................................................................................................................................... 98
B. Change of circumstance .............................................................................................................. 98
C. Streamlined judicial modification upon Department of Revenue agency review.
§409.2564(11), Florida Statutes. .................................................................................................... 99
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IX. CHILD SUPPORT IN TITLE IV-D CASES ................................................. 102
A. Generally ..................................................................................................................................... 102
B. Cases Involving the Parents ...................................................................................................... 104
C. Cases Involving Third-Party Custodians and the Parents .................................................... 104
X. CHILD SUPPORT IN DEPENDENCY CASES .............................................. 108
A. Dependency Child Support Checklist ...................................................................................... 108
B. Model for Child Support in Dependency Cases ...................................... 110
XI. CHILD SUPPORT IN DOMESTIC VIOLENCE CASES ..................................... 120
XII. CHILD SUPPORT IN DISSOLUTION CASES .............................................. 126
XIII. DEPARTMENT OF REVENUE ADMINISTRATIVE SUPPORT ORDERS ................... 134
Child Support Hearing Officer Colloquy ................................................... 194
Petition for Paternity Hearing Checklist .................................................. 197
Petition for Superseding Administrative Order ........................................... 198
Hearing Checklist ............................................................................. 198
Petition for Support Hearing Checklist .................................................... 199
Petition to Modify Child Support Hearing Checklist ..................................... 201
Motion for Contempt Hearing Checklist ................................................... 203
TAB 2 - Excerpt from The Florida Proceedings After Dissolution Of Marriage (Fla. Bar CLE
10th Ed. 2010).
TAB 3 - R. Mitchell Prugh, Procedure Before General Magistrates and Child Support
Enforcement Hearing Officers, The Florida Bar Journal, July/August, 2007, at 77.
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TAB 4
I.
Office of Child Support Enforcement, U.S. Dept. of Health and Human Services, Child
Support and the Judiciary: Income Withholding for Support and the State
Disbursement Unit Benchcard, April, 2012.
II.
Income Withholding for Support Court Order mandated May 31, 2012
III. National Council of Juvenile and Family Court Judges, A Practice Guide: Making Child
Support Orders Realistic and Enforceable, February, 2008.
Tab 5 – COLLOQUY AND CHECKLISTS FOR CHILD SUPPORT HEARING OFFICERS
I. Child Support Hearing Officer Colloquy
II. Petition for Paternity Hearing Checklist
III. Petition for Superseding Administrative Order Checklist
IV. Petition for Support Hearing Checklist
V. Petition to Modify Child Support Hearing Checklist
VI. Contempt Hearing Checklist
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This publication was developed with the assistance of Magistrate Susan
Keith, Judge Richard Weis, Magistrate Acelo Pedroso, Magistrate Steven
Studybaker, Judge Noberto Katz, Hearing Officer Jennifer Kuyrkendall,
the Florida Bar, and the Florida Department of Revenue.
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CHILD SUPPORT LEGAL OUTLINE
I.
A.
B.
CHILD SUPPORT GENERALLY
Authority to determine child support

Article V, Sections 5 and 6 of the Florida Constitution grant the circuit and
county courts jurisdiction to hear cases prescribed by general law.

Article V, Section 1 of the Florida Constitution grants administrative officers
quasi-judicial power in matters connected with the functions of their
offices.

Rule 12.491, Fla. Fam. L. R. P., applies to the proceedings for
establishment, enforcement, or modification of child support when a party
seeking support is receiving services pursuant to Title IV-D of the Social
Security Act (42 U.S.C. §§651 et. seq.) and to non Title IV-D proceedings
upon administrative order of the chief justice.
o Child support hearing officers must be members of the Florida Bar unless
waived. Rule 12.491(c), Fla. Fam. L. R. P.
o A support enforcement hearing officer does not have the authority to
hear contested paternity cases; however, the officer can accept
voluntary acknowledgment of paternity and support liability and
stipulated agreements setting the amount of support to be paid. Rule
12.491(e), Fla. Fam. L. R. P.
Custodial relationships/Parties

The Florida Legislature has determined that each parent has a fundamental
obligation to support his or her minor or legally dependent child. §61.29(1),
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Florida Statutes; Martland v. Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008).
Public policy favors imposing on parents an obligation to contribute to a
child‟s support. Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003).

While the child is a minor, a parent or legal guardian may file the
appropriate action to enforce the right to child support on behalf of the
minor. Lawrence v. Hershey, 890 So. 2d 350 (Fla. 4th DCA 2004).

Florida law provides that support may be required for an adult dependent
“child” who, because of mental or physical incapacity beginning prior to the
child reaching majority, is unable to support herself. If the adult child
satisfies the requirements of §743.07(2), Florida Statutes, both parents may
be responsible for support. Lawrence v. Hershey, 890 So. 2d 350 (Fla. 4th
DCA 2004).

A court may also require support for a dependent person between the ages
of 18 and 19 who is still in high school and performing in good faith with a
reasonable expectation of graduation before the age of 19. §743.07(2),
Florida Statutes.

The court may at any time order either or both parents who owe a duty of
support to a child to pay support to the other parent or, in the case of both
parents, to a third party who has custody in accordance with the child
support guidelines. §61.13(1)(a), Florida Statutes.

Child support is a right that belongs to the child and may not be contracted
away by the parents. It is a dual obligation imposed on the parents by the
state. A custodial parent‟s waiver of a child‟s right to support is contrary to
public policy and unenforceable by the courts because it is not in the best
interests of the child. Dechant v. Fla. Dept. of Revenue, 915 So. 2d 215
(Fla. 3d DCA 2011).

Any party affected by the order of a child support hearing officer may move
to vacate the order by filing a motion to vacate within 10 days from the
date of entry. Any party may file a cross-motion to vacate within 5 days of
service of a motion to vacate. A motion to vacate the order shall be heard
within 10 days after the movant applies for a hearing on the motion. Rule
12.491(f), Fla. Fam. L. R. P. For the purpose of hearing on a motion to
vacate, the party seeking review must provide a record to the court. The
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record consists of the court file, including the transcript of the proceedings,
and all depositions and evidence presented to the hearing officer. Rule
12.491(h) Fla. Fam. L. R. P. The transcript of all relevant proceedings shall
be delivered to the judge and provided to opposing counsel not less than
48 hours before the hearing on the motion to vacate.
C.

Any party affected by the hearing officer‟s order may file a supplemental
petition to modify the order at any time. The party seeking review must
provide a record to the court. The record consists of the court file,
including the transcript of the proceedings, and all depositions and
evidence presented to the hearing officer. Rule 12.491(h) Fla. Fam. L. R. P.

Dissolution of marriage is not required to seek child support. §61.09, Florida
Statutes.
Jurisdiction and venue

Jurisdiction. The court initially entering an order requiring one or both
parents to make child support payments has continuing jurisdiction after
the entry of the initial order, as long as this state remains the residence of
either party or the child(ren), to modify the amount and terms and
conditions of the child support payments if the modification is found by the
court to be in the best interests of the child; when the child reaches
majority; if there is a substantial change in the circumstances of the
parties; if §743.07(2), Florida Statutes, applies; or when a child is
emancipated, marries, joins the armed services, or dies. §§61.13(1)(a)(2),
88.2051(1)(a), Florida Statutes.

Venue. Venue for the enforcement of child support and alimony awards is in
the county in which the petitioner resides or the support or alimony obligor
is found. §61.17(1)(a), Florida Statutes. See also Bryant v. Bryant, 566 So.
2d 65 (Fla. 5th DCA 1990).

Venue for the modification of child support or alimony awards is in the
circuit court of the circuit (1) in which either of the parties resided at the
date of the execution of their settlement agreement or (2) in which either
resides at the time of the filing of the modification action, or (3) in which
the agreement was executed or the support order was rendered.
§§61.14(1)(a), 61.13(1)(a), Florida Statutes. See also DeMauro v. DeMauro,
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737 So. 2d 566 (Fla. 3d DCA 1999); Thomas v. Plowmaker, 679 So. 2d 864
(Fla. 3d DCA 1996).
D.
E.
Procedures

IV-D Counsel: The Department of Revenue must provide the same IV-D
services to families that do not receive public assistance that it provides to
those who do. Therefore, in IV-D cases, IV-D attorneys can be used in all
child support proceedings. Thaysen v. Thaysen, 583 So. 2d 663, 666 (Fla.
1991).

Each party is required to provide his or her social security number and date
of birth to the court, as well as the name, date of birth, and social security
number of each minor child. Disclosure of social security numbers obtained
is limited to the purpose of administration of the Title IV-D program for
child support enforcement. §61.13(8), Florida Statutes.

Adjudication of obligation to support spouse or minor child unconnected
with dissolution: Except when relief is afforded by some other pending civil
action or proceeding, a spouse residing in this state apart from his or her
spouse and minor child, whether or not such separation is through his or her
fault, may obtain an adjudication of obligation to maintain the spouse and
minor child, if any. The court shall adjudicate his or her financial
obligations to the spouse and child and shall establish the parenting plan
[term defined in statute, §61.046(14), Florida Statutes] for the parties. Such
an action does not preclude either party from maintaining any other
proceeding for other or additional relief at any time. §61.10, Florida
Statutes.
Factors to be considered when awarding support

The starting point for determining the amount of support owed is set forth
in the child support guidelines. §61.30, Florida Statutes; Martland v. Arabia,
987 So. 2d 118 (Fla. 4th DCA 2008).

A child support determination lies within the trial court‟s discretion subject
to the statutory guidelines and the reasonableness test. Whight v. Whight,
635 So. 2d 135 (Fla. 1st DCA 1994).
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
Following the statutory guidelines is mandatory. Boyt v. Romanow, 664 So.
2d 995 (Fla. 2d DCA 1995).

Contracts regarding the support of minor children are subject to the plenary
power of the state to control and regulate, and subject to the court‟s
discretion to enforce. The mere existence of an agreement addressing
support for minor children does not permit the court to disregard the
statute‟s explicit limitations on modifying support, imputing income, or
awarding retroactive support. Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th
DCA 2005).

Contract law rather than statutory law governs promises exceeding the
scope of Chapter 61. These include agreements providing support beyond
the age of majority or providing more child support than required by
statute. Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005).

The trial court must consider the overall financial circumstances of both
parents before awarding child support. §61.30, Florida Statutes; Martland v.
Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008).

Child support must be based on the legal earning capacity of the parent and
not on the amount the parent earns through illegal activities. Crossin v.
Crossin, 979 So. 2d 298 (Fla. 4th DCA 2008).

A court may require support for a dependent person beyond the age of 18
years when such dependency is because of a mental or physical incapacity
which began prior to such person reaching majority or if the person is
between the ages of 18 and 19 and is still in high school, performing in good
faith with a reasonable expectation of graduation before the age of 19.
§743.07(2), Florida Statutes.

When a party is willfully earning less than the person has the ability to earn
through his or her best efforts, the court can impute income if: (1) the
termination of income was voluntary, and (2) any subsequent
underemployment resulted from the spouse‟s pursuit of his own interests or
through less than diligent and bona fide efforts to find employment paying
income at a level equal to or better than that formerly received. Guard v.
Guard, 993 So. 2d 1086 (Fla. 5th DCA 2008).
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F.
Temporary vs. permanent support

A temporary support order is often required at the beginning of a case
before the parties have an opportunity to complete discovery. Given the
urgency, the court may sometimes order temporary support in an
abbreviated hearing with limited evidence and later readdress the issue.
Dent v. Dent, 851 So. 2d 819 (Fla. 2d DCA 2003).

A trial court cannot retroactively increase temporary child support
payments for a period before the date the motion seeking the increase is
filed. Flores v. Flores, 874 So. 2d 1211 (Fla. 4th DCA 2004).

A trial court does have the authority to retroactively reduce a parent‟s
obligation for temporary child support. Flores v. Flores, 874 So. 2d 1211
(Fla. 4th DCA 2004).

The child support guidelines apply to temporary support orders as well as
support orders entered after final hearings. Hauser v. Hauser, 778 So. 2d
309 (Fla. 1st DCA 2000); Migliore v. Migliore, 792 So. 2d 1276 (Fla. 4th DCA
2001).

Temporary order due to the child‟s placement change
o When the Department of Revenue files a petition for modification and
the petition is accompanied by a verified motion signed by the
Department of Revenue to redirect payment alleging that:
 The child is residing with a relative caretaker that receives
temporary cash assistance or

The child was formerly residing with a relative caretaker, the child
support payments were redirected to the relative caretaker, and the
child is now residing with the original payee, then the court shall
enter a temporary order, ex parte, within 5 days that redirects the
child support payments to the relative caretaker or original payee
pending a final hearing and may grant such relief as the court deems
proper. Upon the filing of a verified motion by the Department of
Revenue to redirect payment, the relative caretaker is deemed a
party to the proceedings. §409.2564(12)(a), Florida Statutes.
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G.
H.
Concealment/parental interference with time-sharing schedule

When a parent who is ordered to pay child support or alimony fails to pay,
the parent who should have received the child support or alimony may not
refuse to honor the time-sharing schedule (term defined in statute,
§61.046(23), Florida Statutes), presently in effect between the parents.
§61.13(4)(a), Florida Statutes.

When a parent refuses to honor the other parent‟s rights under the timesharing schedule, the parent whose time-sharing rights were violated shall
continue to pay any ordered child support or alimony. §61.13(4)(b), Florida
Statutes.

The court should also examine the conduct of the custodial parent. The
non-custodial parent is excused from paying child support during the time of
concealment. Courts have distinguished between interference with
visitation and actual concealment since the remedies for interference with
visitation rights are not available when the custodial parent‟s whereabouts
are unknown. Hoffman v. Foley, 541 So. 2d 145 (Fla. 3d DCA 1989).
Inability to Waive Obligation
 Waiver is the intentional or voluntary relinquishment of a known right, or
conduct which implies the relinquishment of a known right. The three
elements of waiver are: (1) the existence at the time of the waiver of a
right, privilege, advantage, or benefit which may be waived; (2) the actual
or constructive knowledge of the right; and (3) the intention to relinquish
the right. Bishop v. Bishop, 858 So. 2d 1234 (Fla. 5th DCA 2003).

A parent cannot waive all arrears when the Department of Revenue is a
party and public assistance monies have been paid. The Department of
Revenue is an essential party to a public assistance case and Department of
Revenue must be noticed or a party to any stipulation between the mother
and father. Dept. of Revenue v. Pericola, 662 So. 2d 386 (Fla. 5th DCA
1995).

Waiver cannot be found due to a delay in seeking child support. Bishop v.
Bishop, 858 So. 2d 1234 (Fla. 5th DCA 2003).

Even if a parent‟s expenses exceed her income, this reason is not, in and of
itself, sufficient for a waiver of the parent‟s obligation to pay support.
Florida Dept. of Revenue ex rel. Bloemendal v. Hodge, 754 So. 2d 845 (Fla.
2d DCA 2000).
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II.
ESTABLISHING PATERNITY
The courts have long held that the “highest spiritual and moral concepts, as well as
the law, demand that the father, as far as his means reasonably permit, support them
and this is a continuing duty until the children reach their majority or become selfsupporting.” Bezanilla v.Bezanilla, 65 So. 2d 754 (Fla. 1953). However, before the
duty of child support can be imposed, the court must determine whether or not
paternity has been established for the child. These methods include:
 The child was conceived and/or born while the parties were married;
 The parent has voluntarily signed a sworn paternity affidavit or
acknowledgment;
 The parents are named on the child‟s birth certificate;
 Paternity has been established by a court or administrative proceeding; or
 Paternity has been raised and determined within an adjudicatory hearing
brought under the statutes governing inheritance, or dependency under
workers‟ compensation or similar compensation programs.
NOTE: Fla. Fam. L. R. P. 12.491(e) provides that a child support enforcement hearing
officer does not have the authority to hear contested paternity cases.
A. Establishment of Paternity for Children Born Out of Wedlock

Except as provided by dependency proceedings in chapter 39, Florida
Statutes, and adoption proceedings in chapter 63, Florida Statutes, §742.10,
Florida Statutes, provides the primary jurisdiction and procedures for the
determination of paternity for children born out of wedlock.

Any action relating to the determination of paternity must be brought
within four (4) years from the date the child reaches the age of majority.
Pursuant to §742.10, Florida Statutes, paternity can be established by:
o An affidavit acknowledging paternity or a stipulation of paternity
executed by both parties and filed with the clerk of court;
o An affidavit, a notarized voluntary acknowledgment of paternity, or a
voluntary acknowledgment of paternity that is witnessed by two
individuals and signed under penalty of perjury as provided for in
§382.013 or §382.016, Florida Statutes, and is executed by both parties;
o Paternity is adjudicated by the Department of Revenue as provided in
§409.256, Florida Statutes.
o Paternity is adjudicated by the Court as provided in Chapter 742 of the
Florida Statutes.
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B.
Affidavits and Voluntary Acknowledgments - §742.10(1), Florida Statutes
 Acknowledgment. If adjudicatory proceedings were not held, a notarized
voluntary acknowledgment of paternity or voluntary acknowledgment of
paternity witnessed by two individuals and signed under penalty of perjury
creates a rebuttable presumption of paternity. If signed under penalty of
perjury pursuant to §92.525(2), Florida Statutes, the written declaration:
o Means the following statement: “Under penalties of perjury, I declare
that I have read the foregoing [document] and that the facts stated in it
are true”;
o Must be followed by the signature of the person making the declaration;
o If the verification on information or belief is permitted by law, the
words “to the best of my knowledge and belief” may be added;
o Declaration shall be printed or typed at the end of or immediately below
the document being verified and above the signature of the person
making the declaration.
NOTE: A person who knowingly makes a false declaration is guilty of the crime of
perjury by false declaration, a third degree felony, punishable by up to five years or
$5,000.00.
o Both parents must provide their social security numbers on any
acknowledgment of paternity, consent affidavit, or stipulation of
paternity.
o Rescinding. Acknowledgement may be rescinded within 60 days after the
date the acknowledgment was signed or the date of an administrative or
judicial proceeding relating to the child in which the signatory is a party,
whichever is earlier.
o Challenge. After 60 days, a signed voluntary acknowledgment constitutes
an establishment of paternity and may be challenged in court only on
the basis of:
 Fraud,
 Duress, or
 Material Mistake of Fact
o The burden of proof is on the challenger, and child support will not be
suspended except upon a finding of good cause by the court. §742.10(4),
Florida Statutes.
o A verified motion pursuant to Rule 12.540 and §742.10(4) claiming that
recent DNA testing excluded the petitioner as the father of the child
may be sufficient to establish a material mistake of fact. State, Dept. of
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Revenue, Office of Child Support Enforcement v. Ductant, 957 So. 2d
658, 660 (Fla. 3d DCA 2007).
o Ratification. Judicial or administrative proceedings are not required or
permitted to ratify an unchallenged acknowledgment of paternity.
§742.10(5), Florida Statutes.
C.

In many cases, the legal father will file a request or motion for genetic
testing when a petition is filed to establish child support. The legal father
will acknowledge that he signed the affidavit or birth certificate and is now
questioning the paternity; however, the request or motion is devoid of any
allegations of fraud, duress, material mistake of fact, or newly discovered
evidence. Further, the motion is not a proper petition to disestablish
paternity pursuant to §742.18, Florida Statutes. Absent such allegations, no
good cause is shown to justify an order requiring the mother and child to
submit to genetic testing. State, Dept. of Revenue ex rel. Chambers v.
Travis, 971 So. 2d 157, 162 (Fla. 1st DCA 2007); Dept. of Revenue ex rel.
T.E.P. v. Price, 958 So. 2d 1045 (Fla. 2d DCA 2007).

“No party to any family law proceeding is entitled to an order requiring
another party to submit to genetic testing unless (1) the proceedings place
paternity „in controversy‟ and (2) „good cause‟ exists for the testing.”
State, Dept. of Revenue ex rel. Chambers v. Travis, 971 So. 2d 157 at 162.
“Regarding the first requirement, paternity can be placed „in controversy‟
during proceedings conducted by a child support enforcement hearing
officer if the purported father files documentation alleging that he is not
the biological father or by asserting that he has not acknowledged his
fatherhood in an affidavit executed in conformity with §742.10(1).” State,
Dept. of Revenue ex rel. Carnley v. Lynch, 53 So. 3d 1154 (Fla. 1st DCA
2011). However, absent proof to support the allegations, such as a copy of
the child‟s birth certificate showing he did not sign the document or other
evidence to support the claims, the legal father failed to show good cause
to justify paternity testing. Id. at 1157.
Birth Certificates - §382.013(2), Florida Statutes

Affidavit. If the mother is not married at the time of the birth, the name of
the father may not be entered on the birth certificate without the
execution of an affidavit signed by both the mother and the person to be
named as the father. §382.013(2)(c), Florida Statutes.
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o Note: The facility shall give notice orally or through the use of video or
audio equipment, and in writing, of the alternatives to, the legal
consequences of, and the rights, including, if one parent is a minor, any
rights afforded due to minority status, and responsibilities that arise
from signing an acknowledgment of paternity, as well as information
provided by the Title IV-D agency regarding the benefits of voluntary
establishment of paternity.
o Upon the request of the mother and the person to be named as the
father, the facility shall assist in the execution of the affidavit, a
notarized voluntary acknowledgment of paternity, or a voluntary
acknowledgment of paternity that is witnessed by two individuals and
signed under penalty of perjury as specified by §92.525(2), Florida
Statutes.

Court Determination. If the paternity of the child is determined by a court
of competent jurisdiction, the surname of the child shall be entered on the
certificate in accordance with the finding and order of the court.
§382.013(2)(d), Florida Statutes.

Marriage. If the mother and father marry each other at any time after the
child‟s birth, upon receipt of a marriage license that identifies any such
child, the birth certificate shall be amended with regard to the parents‟
marital status as though the parents were married at the time of birth.
§382.10(2)(d), Florida Statutes.

Dissolution of Marriage. If there is a final judgment of dissolution of
marriage which requires the former husband to pay child support for the
child, the name of the father and the surname of the child shall be entered
on the birth certificate in accordance with the finding and order of the
court. §382.10(2)(d), Florida Statutes.

Administrative Determination. If the paternity of the child is determined
pursuant to §409.256, the name of the father and the surname of the child
shall be entered on the certificate in accordance with the finding and order
of the Department of Revenue. §382.013(2)(e), Florida Statutes.
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D.
E.
Court Proceedings - Chapter 742, Florida Statutes

Proceedings. When paternity has not been established by law or otherwise,
an action may be brought by:
o Any woman who is pregnant or has a child;
o Any man who has reason to believe that he is the father of a child; or
o Any child.

Venue. The case must be filed in the circuit court of the county where the
plaintiff resides or the county where the defendant resides. §742.021,
Florida Statutes.

Long Arm Jurisdiction. Engaging in the act of sexual intercourse within the
state with respect to which a child may have been conceived, submits a
person, whether or not a citizen or resident of the state, to the jurisdiction
of the court of the state. §48.193(1)(h), Florida Statutes.

Constructive Service. Except as to legal fathers, the service of process
statute does not permit constructive service of process in paternity cases.
Florida Dept. of Revenue v. Cummings, 930 So. 2d 604, 609 (Fla. 2006).
Specifically, it should be noted that §49.011, Florida Statutes, does not
include paternity actions.

Constructive Service-Legal Father. Constructive service may be used to
determine paternity, but only as to the legal father in a paternity action in
which another man is alleged to be the biological father, in which case it is
necessary to serve process on the legal father in order to establish paternity
with regard to the alleged biological father. §49.011(15), Florida Statutes.
Scientific Testing - §742.12, Florida Statutes

A test may be ordered upon the request of a party providing a sworn
statement or written declaration alleging paternity and setting forth facts
establishing a reasonable possibility of the requisite sexual contact between
the parties or providing a sworn statement or written declaration denying
paternity and setting forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties. §742.12(2), Florida
Statutes.
21

The order for scientific testing must inform each person to be tested of the
procedure and requirements for objecting to the test results.

The test must be conducted by a qualified technical laboratory. §742.12(1),
Florida Statutes.

A statistical probability of 95% or more creates a rebuttable presumption
that the alleged father is the biological father of the child. §742.12(4),
Florida Statutes.

The test results, together with the opinions and conclusions of the test
laboratory, shall be filed with the court. Any objection to the test results
must be made in writing and must be filed with the court at least 10 days
prior to the hearing. If no objection is filed, the test results shall be
admitted into evidence without the need for predicate to be laid or thirdparty foundation testimony to be presented. §742.12(3), Florida Statutes.

A party may still call outside expert witness(es) to refute or support the
testing procedure or results, or the mathematical theory on which they are
based. §742.12(3), Florida Statutes.

Second Test. If the test results or the expert analysis of the inherited
characteristics is disputed, the court, upon reasonable request of a party,
shall order that an additional test be made by the same laboratory or an
independent laboratory at the expense of the requesting party. §742.12(5),
Florida Statutes.

The Florida Statute regarding a second test is directory and not mandatory.
Dept. of Revenue ex rel. of Glover v. Smatt, 679 So. 2d 1191 (Fla. 5th DCA
1996).

“This statute imposes an obligation on the moving party to establish good
cause before a successive test can be ordered.” Southwick v. Dept. of
Revenue ex rel. Mulloy, 750 So. 2d 32 (Fla. 2d DCA 1998). A mere
dissatisfaction with the results of the first test is not good cause. Id.
22
F.
G.
Trial

Hearings for the purpose of establishing or refuting the allegations of the
paternity complaint and answer shall be held in chambers and may be
restricted to persons, in addition to the parties involved and their counsel,
as the judge in his or her discretion may direct. §742.031(1), Florida
Statutes.

Parties have right to a jury trial in paternity actions. B.J.Y. v. M.A., 617 So.
2d 1061 (Fla. 1993).

Relief from Judgment. A motion for relief from judgment pursuant to rules
12.540 and 1.540 (Not a Petition to Disestablish Paternity pursuant to
§742.18, Florida Statutes) must be filed within one year absent extrinsic
fraud or fraud upon the court. Dept. of Revenue, State of Florida v. Myrick,
706 So. 2d 104 (Fla. 5th DCA 1998).
Administrative Establishment of Paternity - §409.256, Florida Statutes

The Department of Revenue is authorized by law to initiate administrative
proceedings to establish paternity or establish paternity and child support,
orders to appear for genetic testing, and administrative proceedings to
establish child support obligations. §§409.256, 409.2563, Florida Statutes. In
2005, the Florida legislature enacted Chapter 2005-39, Laws of Florida,
establishing an administrative procedure for the establishment of child
support. The Department of Revenue is entitled to render a final order of
paternity or final order of paternity and child support. If a timely request
for hearing is filed, the matter is referred to the Division of Administrative
Hearings. Chapter 120 and the uniform rules of procedure govern the
conduct of the proceedings. A final order rendered pursuant to this section
has the same effect as a judgment entered by the court pursuant to chapter
742. Once the Department of Revenue commences an action by serving the
respondent with the Notice of Proceeding to Establish Paternity by certified
mail or by service of process, all further service is by regular mail. This
includes notice that the Department of Revenue intends to seek child
support in conjunction with the paternity action.

In enacting the legislation, the Legislature specifically states that it “does
not intend to limit the jurisdiction of the circuit courts to hear and
23
determine issues regarding establishment of paternity. This section is
intended to provide the Department of Revenue with an alternative
procedure for establishing paternity and child support obligation in Title IVD cases. This section does not prohibit a person who has standing from filing
a civil action in circuit court for a determination of paternity or of child
support obligations.” §409.256(2)(f), Florida Statutes.

Proceedings. The Department of Revenue may commence a paternity
proceeding if:
o The child‟s paternity has not been established.
o No one is named as the father on the child‟s birth certificate or the
person named as the father is the putative father named in an affidavit
or written declaration.
o The child‟s mother was unmarried when the child was conceived and
born.
o The Department of Revenue is providing services under Title IV-D.
o The child‟s mother or a putative father has stated in an affidavit, or in a
written declaration that the putative father is or may be the child‟s
biological father.
§409.256(2)(a), Florida Statutes.

The affidavit or written declaration must set forth the factual basis for the
allegation of paternity as provided in §742.12(2), Florida Statutes, i.e.,
facts establishing a reasonable possibility of the requisite sexual contact
between the parties or providing a sworn statement or written declaration
denying paternity and setting forth facts establishing a reasonable
possibility of the nonexistence of sexual contact between the parties.

Long Arm Jurisdiction. The Department of Revenue may proceed against a
nonresident over whom the State may assert personal jurisdiction under
chapter 48 or chapter 88. §409.256(2)(c), Florida Statutes.

Location of Hearings. Whenever practicable, hearings by the Division of
Administrative Hearings shall be held in the judicial circuit where the
person receiving service under Title IV-D resides, or if such person does not
reside in the state, in the judicial circuit where the respondent resides. If
agreed, hearings may be held in another location. If ordered by the
administrative law judge, a hearing may be conducted telephonically or by
videoconference. §409.256(2)(e), Florida Statutes.
24

Multiple Putative Fathers; Multiple Children. §409.256(3), Florida Statutes.
o If more than one putative father has been named, the Department of
Revenue may proceed against a single father or may proceed
simultaneously against more than one putative father.
o If a putative father has been named as a possible father of more than
one child born to the same mother, the Department of Revenue may
proceed to establish paternity of each child in the same proceeding.

Notice of Proceedings - §409.256(4), Florida Statutes.
o The Department of Revenue commences a proceeding by serving the
respondent with a notice. The notice must state:
 That the Department of Revenue has commenced an administrative
proceeding to establish whether the putative father is the biological
father of the child named in the notice.
 The name and date of birth of the child and the name of the child‟s
mother.
 That the putative father has been named in an affidavit or written
declaration that states the putative father is or may be the child‟s
biological father.
 That the respondent is required to submit to genetic testing.
 That genetic testing will establish either a high degree of probability
that the putative father is the biological father of the child or that
the putative father cannot be the biological father of the child.
 That if the results of the genetic test do not indicate a statistical
probability of paternity that equals or exceeds 99 percent, the
paternity proceeding in connection with the child shall cease unless a
second or subsequent test is required.
 That if the results of the genetic test indicate a statistical probability
of paternity that equals or exceeds 99 percent, the Department of
Revenue may:
o Issue a proposed order of paternity that the respondent may
consent to or contest at an administrative hearing; or
o Commence a proceeding to establish an administrative support
order for the child. Notice of the proceeding shall be provided to
the respondent by regular mail.
 That, if the genetic test results indicate a statistical probability of
paternity that equals or exceeds 99% and a proceeding to establish an
administrative support order is commenced, the Department of
25





Revenue shall issue a proposed order that addresses paternity and
child support. The respondent may consent to or contest the
proposed order at an administrative hearing.
That if a proposed order of paternity or proposed order of both
paternity and child support is not contested, the Department of
Revenue shall adopt the proposed order and render a final order.
That, until the proceeding is ended, the respondent shall notify the
Department of Revenue in writing of any change in address and that
the respondent shall be deemed to have received any subsequent
order, notice, or other paper mailed to the most recent address
provided or, if not provided, to the service address.
That the respondent may file an action in circuit court for a
determination of paternity, child support obligations, or both.
That if the respondent files an action in circuit court and serves the
Department of Revenue with a copy of the petition or complaint
within 20 days after being served notice, the administrative process
ends without prejudice and the action must proceed in circuit court.
That, if paternity is established, the putative father may file a
petition in circuit court for a determination of matters relating to
custody and rights of parental contact.
 The order to appear for genetic testing may be served at the
same time or separately.
 A copy of the affidavit or written declaration shall be
provided.

Service. §409.256(4), Florida Statutes.
o Respondents may be served by certified mail, restricted delivery, return
receipt requested, or by service of process.
o If person other than the addressee signs, the Department of Revenue
shall attempt to contact the addressee by telephone to confirm receipt.
If the Department of Revenue is unable to confirm, service is not
complete and the Department of Revenue shall attempt personal
service.
o The Department of Revenue or an authorized agent may serve notice or
order for genetic testing and execute affidavit of service.

Genetic Testing. §409.256(4)(c), Florida Statutes.
o Order to Appear for Genetic Testing shall inform the person ordered to
appear:
26
o That the Department of Revenue has commenced an administrative
procedure to establish whether the putative father is the biological
father of the child.
o The name and date of birth of the child and the name of the child‟s
mother.
o That the putative father has been named in an affidavit or written
declaration that states the putative father is or may be the child‟s
biological father.
o The date, time, and place that the person ordered to appear must
appear to provide a sample for genetic testing.
o That if the person has custody of the child, the person must submit
the child for testing.
o That when samples are provided, the person ordered to appear shall
verify his or her identity and the identity of the child by presenting a
photo identification.
o That the Department of Revenue shall pay the cost of the testing and
shall provide a copy of the test results.
o That if the person ordered to appear does not appear or refuses to
submit to genetic testing without good cause, the Department of
Revenue may take one or more of the following actions:
 Commence proceedings to suspend the driver‟s license and motor
vehicle registration as provided in §61.13016, Florida Statutes;
 Impose an administrative fine against the person in the amount of
$500.00;
 File a petition in the circuit court for the child and an order for
costs, including costs of the genetic testing.
o That the person ordered to appear may contest the order by filing a
written request for informal review within 15 days after service, with
further rights to an administrative hearing following the informal
review.

Contesting an Order to Appear for Genetic Testing. §409.256(5), Florida
Statutes.
o Informal Review. A person ordered to appear may contest by filing a
written request for informal review with the Department of Revenue
within 15 days after service of the order. After review, the Department
of Revenue shall notify the person in writing whether it intends to
proceed.
27
o Administrative Hearing. After informal review and within 15 days after
mailing of the Department of Revenue‟s intent to proceed, a person
ordered to appear may file a request for administrative hearing stating
specific reasons why they should not be ordered to submit to genetic
testing. Administrative hearings are governed by chapter 120 and the
uniform rules of procedure.
o Waiver. If a request for informal review or administrative hearing is not
timely filed, the person ordered to appear is deemed to have waived the
right to a hearing.
o The Department of Revenue may not proceed until:
 After notifying of intent to proceed after informal review, a
timely request for hearing is not filed;
 The person ordered to appear withdraws the request for a hearing
or informal review; or
 The Division of Administrative Hearings issues an order that the
person must submit for testing or issues an order closing the
division‟s file and the order is final.


Scheduling of Genetic Testing. §409.256(6), Florida Statutes.
o Notice. The Department of Revenue shall notify, in writing, the
person ordered to appear of the date, time, and location of the
appointment and the requirement to provide photo identification.
o Reschedule. The Department of Revenue shall reschedule:
 One time without cause, if a request is made in advance of the
initial test date.
 One time if a person shows good cause for failure to appear for
the test. The request must be filed within 20 days after
scheduled test date and must state facts and circumstances
supporting claim. The Department of Revenue shall notify the
person in writing whether or not it accepts or rejects the
person‟s claim of good cause.
 One time upon the request of a person sanctioned for failure
to appear.
Second Test.
o A person ordered to appear may obtain a second test by filing a
written request with the Department of Revenue within 15 days after
the mailing of initial testing results and upon payment in advance for
the full cost of a second test.
28




o The Department of Revenue may schedule and require a subsequent
test if it has reason to believe the results of the prior test may not be
reliable.
 Failure or Refusal to Submit to Genetic Testing. §409.256(7),
Florida Statutes.
If a person who is served with an order to appear for genetic testing fails to
appear without good cause or refuses to submit to testing without good
cause, the Department of Revenue may take one or more of the following
actions:
o Commence a proceeding to suspend the driver‟s license and motor
vehicle registration of the person ordered to appear as provided in
§61.13016, Florida Statutes. Pursuant to §322.058(2), Florida
Statutes, the suspended driver‟s license and motor vehicle
registration may be reinstated when the person ordered to appear
complies with the order for genetic testing.
o Impose an administrative fine against the person in the amount of
$500.00. The Department of Revenue may collect an administrative
fine by using civil remedies or other statutory means available to the
department for collecting support.
OR
o File a petition in circuit court to establish paternity, obtain a support
order for the child, and seek reimbursement from the person ordered
to appear for the full cost of genetic testing incurred by the
department.
Test Results. §409.256(7), Florida Statutes.
o A copy of the test results are sent to the parties. If the results do not
indicate a statistical probability of paternity that equals or exceeds
99%, the paternity proceeding will cease.
Proposed Order of Paternity. §409.256(9), Florida Statutes.
o If the probability of paternity equals or exceed 99%, the Department
of Revenue may:
 Issue a proposed order of paternity; or
 Delay issuing a proposed order, commence by regular mail an
administrative proceeding to establish a support order
pursuant to §409.2563, Florida Statutes, and issue a single
proposed order that addresses paternity and child support.
The proposed order of paternity must:
o State proposed findings of fact and conclusions of law.
o Include a copy of the results of genetic testing.
29



o Include notice of the respondent‟s right to informal review and to
contest the proposed order at an administrative hearing.
The Department of Revenue shall serve the proposed order by regular mail.
Informal Review; Administrative Hearing. §409.256(10), Florida Statutes.
o Within 10 days after mailing or other service of proposed order, the
respondent may contact a representative of the Department of Revenue
to request an informal review.
o Within 20 days after the mailing of a proposed order or 10 days after the
mailing of a notice of conclusion of informal review, whichever is later,
the respondent may request an administrative hearing in writing. The
request must state the specific objections to the proposed order,
proposed genetic tests, or both. Failure to file a timely request is
deemed a waiver of the right to a hearing.
o If a timely request is made, the Department of Revenue shall refer the
hearing request to the Division of Administrative hearings for a chapter
120 proceeding.
o The genetic test results shall be admitted into evidence and made part
of the record. A statistical probability of 99% creates a presumption that
the putative father is the biological father of child. The presumption
may be overcome only by clear and convincing evidence. The respondent
or the Department of Revenue may call expert witness(es) to refute or
support the testing procedure, results, or mathematical theory. Verified
documentation of the chain of custody of the samples is competent
evidence.
Final Order. §409.256(11), Florida Statutes.
o Administrative Hearing. If a hearing is held the administrative law judge
shall issue a final order that adjudicates paternity or, if appropriate,
paternity and child support.
o Department Issuance. If the respondent does not file a timely request
for a hearing or consent in writing to the entry of a final order without a
hearing, the Department of Revenue may render a final order of
paternity or paternity and child support.
o Copies. The Department of Revenue shall mail a copy of the final order
to the putative father, mother, and caregiver, if any, and notify the
respondent of the right to seek judicial review of the final order in
accordance with §120.68.
30


H.
o Effectiveness. A final order rendered pursuant to this section has the
same effect as a judgment entered by the court pursuant to chapter
742.
Judicial Review. The respondent and the department have the right to seek
judicial review in accordance with §120.68, Florida Statutes.
Mailing Address. Until the proceeding has ended, a respondent served with a
notice of a proceeding must inform the Department of Revenue in writing of
any change of mailing address and is deemed to have received any
subsequent order, notice, or other paper mailed to that address or the
address where the respondent was served, if a more recent address has not
been provided.
Probate

Paternity may be established in the course of probate proceedings. In re
Estate of Smith, 685 So. 2d 1206, 1208 (Fla. 1996). §742.10(1), Florida
Statutes, confirms this by stating that “if the establishment of paternity has
been raised and determined within an adjudicatory hearing brought under
the statutes governing inheritance . . . such adjudication constitutes the
establishment of paternity for purposes of this chapter.” Pursuant to
§732.108(2), Florida Statutes, for the purpose of intestate succession, when
a child has not been adopted, and is born out of wedlock, the child is a
descendant of his or her father and is one of the natural kindred of all
members of the father‟s family if:
o The natural parents participated in a marriage ceremony before or after
the birth of the person born out of wedlock, even though the attempted
marriage is void.
o The paternity of the father is established by an adjudication before or
after the death of the father. Chapter 95 (statute of limitations) shall
not apply in determining heirs in a probate proceeding under this
paragraph.
o The paternity of the father is acknowledged in writing by the father.

However, the courts have found that §732.108(2)(b), Florida Statutes, does
not create a separate independent case of action to establish paternity. It
merely explains the effect of an adjudication of paternity. Id; Glover v.
Miller, 947 So. 2d 1254, 1257 (Fla. 4th DCA 2007).
31
I.
Declaratory Relief
J.

Paternity may be determined in an action for declaratory relief, including
an action brought by a trustee to determine the beneficiaries of a trust.
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010); Knauer v. Barnett,
360 So. 2d 399 (Fla. 1978).

Workers‟ Compensation §440.02(6), Florida Statutes. For the purposes of
Workers‟ Compensation, a child includes:
o A posthumous child,
o A child legally adopted prior to the injury of the employee, or
o A stepchild or acknowledged child born out of wedlock who is dependent
upon the deceased, but does not include married children unless wholly
dependent on the employee.
Children Conceived or Born During Wedlock


In determining the establishment of child support for a child conceived or
born during a marriage, the court must determine:
o Was the child conceived or born during an intact marriage;
o Was the child conceived or born prior to the marriage, but the parties
subsequently married;
o Is the husband indicated on the birth certificate;
o Does the husband dispute that he is the biological father of the child and
any obligation to pay child support.
Presumption of legitimacy. The law in Florida is clear that a child born or
conceived during a lawful marriage is legitimate child of the husband and
wife. Adoption of Baby James Doe, 572 So. 2d 986, 988 (Fla. 1st DCA 1990).
The child born or conceived during such marriage is presumed to be the
child of both the husband and the wife. Fla. Dept. of Revenue v. Cummings,
930 So. 2d at 607 (Fla. 2006). This presumption of legitimacy is one of the
strongest rebuttable presumptions known to law. Id. “It is a presumption
which operates in family law settings to prevent a husband‟s rights from
being terminated and for the child‟s best interests in his or her legitimacy
and support from his or her father.” Daniels v. Greenfield, 15 So. 3d 908,
914 (Fla. 4th DCA 2009). “A person seeking to challenge the child‟s
paternity must overcome the strong, albeit rebuttable, presumption of
legitimacy.” Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. 1st DCA 2010).
32
K.
Legal vs. Biological Father

Legal Father. The Supreme Court has defined a “legal father” as “the man
to whom the mother was married when the child was born and whose name
appears on the birth certificate.” G.F.C. v. S.G., 686 So. 2d 1382, 1384 (Fla.
5th DCA 1997); Dept. of Health & Rehabilitative Services v. Privette, 617 So.
2d 305, 307 (Fla. 1993). The law has repeatedly held that when a child is
born into an intact marriage and is recognized by the husband and the wife
as their child, “the husband is deemed the legal father to the exclusion of
all others,” and a man claiming to be the child‟s biological father has no
common law, statutory, or constitutional right to sue for paternity G.F.C.,
686 So. 2d at 1384; Bellomo v. Gagliano, 815 So. 2d 721, 722 (Fla. 5th DCA
2002). The mother‟s husband remains the legal father unless and until the
court effects a substitution. Shuler v. Guardian Ad Litem Program, 17 So. 3d
333, 335 (Fla. 5th DCA 2009). For the purposes of the establishment of child
support, a “legal father is an indispensable party in any action to determine
paternity and to place support obligation on another man unless it is
conclusively established that the legal father‟s rights to the child have been
divested by some earlier judgment.” Cummings, 930 So. 2d at 609.
Therefore, an action for the establishment of child support must include the
legal father even though another claims to be the biological father.

Intact Marriage. An intact marriage has been defined as “the existence of a
marriage without the pendency of divorce proceedings.” Lander v. Smith,
906 So. 2d 1130, 1134 (Fla. 4th DCA 2005); Nevitt v. Bonomo, 53 So. 3d
1078, 1082 (Fla. 1st DCA 2010). See also S.B. v. D.H., 736 So. 2d 766, 767
(Fla. 2d DCA 1999)(So long as the husband and wife are married and have no
pending divorce proceeding, we will not authorize the trial court to conduct
any qualitative evaluation of whether the marriage is “intact.”). The bonds
of matrimony are either terminated by death or by proceedings filed
pursuant to Chapter 61 of the Florida Statutes. Lohman v. Carnahan, 963
So. 2d 985, 987 (Fla. 4th DCA 2007).

Birth Certificate. If the mother is married at the time of birth, the name of
the husband shall be entered on the birth certificate as the father of the
child, unless paternity has been determined otherwise by a court of
competent jurisdiction. §382.013(2)(a), Florida Statutes.
o If there is a final judgment of dissolution of marriage which requires the
former husband to pay child support for the child, the name of the
33
father and the surname of the child shall be entered on the birth
certificate in accordance with the finding and order of the court.
§382.013(2)(d), Florida Statutes.
o Birth Certificate -- Deceased Husband. If the husband dies while the
mother is pregnant but before the birth of the child, the name of the
deceased husband shall be entered on the birth certificate as the father
of the child, unless paternity has been determined otherwise by a court
of competent jurisdiction. §382.013(2)(b), Florida Statutes.

Subsequent Marriage. If the mother of any child born out of wedlock and
the reputed father shall at any time after its birth intermarry, the child
shall in all respects be deemed and held to be the child of the husband and
wife, as though born within wedlock. §742.091, Florida Statutes; I.A. v.
H.H., 710 So. 2d 162 (Fla. 2d DCA 1998) (marriage two months after birth of
child); Harris v. Harris, 753 So. 2d 774 (Fla. 5th DCA 2000) (marriage nine
months after birth).
NOTE: Record of the proceedings in such cases shall be sealed against public
inspection in the interests of the child.
However, the court has permitted a paternity case to proceed when the
mother married a man after she was served with the paternity action and
the second man acknowledged that he was the father of the child. T.B. v.
M.M., 945 So. 2d 637 (Fla. 2d DCA 2006). See also, J.W.T. v. S.T., 974 So.
2d 436 (Fla. 2d DCA 2007) (Dismissal of paternity action by biological father
was reversed when mother had previously commenced a paternity action
against the father which was voluntarily dismissed after marrying husband.
The timing of the actions suggested an attempt to deny biological father‟s
right to determine paternity).

Non-Biological Legal Father. As established in the case of Daniel v. Daniel,
695 So. 2d 1253 (Fla. 1997), a husband has no legal duty to provide for the
support of a minor child of the marriage who is neither his natural nor his
adopted child and for whose care and support he had not contracted. Under
the facts of Daniel, paternity was not contested and the parties stipulated
that the husband was not the biological father of the child, and that the
husband did not assert any legal rights as a legal father during the couple‟s
marriage.
34
The issue frequently arises in child support cases when the mother of the
child is still married and bears a child or children purportedly fathered by
another man. As stated in Fla. Dept. of Revenue v. Cummings, 930 So. 2d at
609 (Fla. 2006), for the purposes of the establishment of child support, a
“legal father is an indispensable party in any action to determine paternity
and to place support obligation on another man unless it is conclusively
established that the legal father‟s rights to the child have been divested by
some earlier judgment.” Therefore, the legal father‟s rights to the child
must be divested by a final judgment of dissolution of marriage or other
order disestablishing paternity before child support can be sought from a
putative biological father.
NOTE: A legal father may be equitably stopped from disavowing his status as
a child‟s legal father in cases where he has acted as the child‟s father,
enjoyed the benefits of a biological father such as the love of the child and
status as a father, and prevented the child from knowing the biological
father or receiving support. C.C.A. v. J.M.A., 744 So. 2d 515 (Fla. 2d DCA
1999), review granted, 762 So. 2d 916 (Fla. 2000), and review dismissed as
improvidently granted by J.M.C. v. C.C.A., 803 So. 2d 705 (Fla. 2001).

Biological Father. The issue frequently arises in child support cases when
the mother of the child is still married and bears a child or children
purportedly fathered by another man. In such cases, the biological father
may seek to intervene. The courts have long held that a “man who fathers a
child with a woman married to another man generally has no parental rights
or responsibilities to the child.” Shuler, 17 So. 3d at 335 (Fla. 5th DCA
2009). “When a child is born into an intact marriage and is recognized by
the husband and the wife as their child, a man claiming to be the child‟s
biological father has no common law, statutory or constitutional right to sue
for paternity.” Bellomo, 815 So. 2d at 722, citing to G.F.C., 686 So. 2d at
1384 (Fla. 5th DCA 1997).
Part of the basis for this argument is that §742.10, Florida Statutes, states
that the “chapter provides the primary jurisdiction and procedures for the
determination of paternity for children born out of wedlock.” (Emphasis
added.) §742.011, Florida Statutes, provides that a paternity action may be
brought so long as paternity had not already been established by “law or
otherwise.” Paternity would be established “by law” when there is an
adjudication of paternity, the filing of the acknowledgements or
35
stipulations, or administrative establishment. “Paternity would „otherwise‟
be established when a child is born to an intact marriage and recognized by
the husband and wife as being their child,” G.F.C., 686 So. 2d at 1386.
The prevailing law in the state of Florida is that a putative father has no
right to initiate a paternity action concerning the child of an intact
marriage if both the married woman and her husband object. G.F.C.; I.A. v.
H.H., 710 So. 2d 162 (Fla. 2d DCA 1998); Johnson v. Ruby, 771 So. 2d 1275
(Fla. 4th DCA 2000); Bellomo, 815 So. 2d at 722; Tijerino v. Estrella, 843 So.
2d 984 (Fla. 3d DCA 2003). In S.D. v. A.G., 764 So. 2d 807, 809 (Fla. 2d DCA
2000), the court expanded the holding so that a “putative father is not
entitled to intervene in a divorce proceeding to seek a determination of
paternity concerning a quasi-marital child where:
o The husband and wife have stipulated or agreed that the child should
be treated like any other marital child;
o The putative father waited more than 2 ½ years from the birth of the
child to initiate any proceeding and has not alleged any fraud or
concealment of any critical fact by the husband and wife;
o The putative father has not alleged that he established a parentalstyle bond with the child; and
o The putative father has not alleged a basis to terminate the legal
father‟s rights under chapter 39, Florida Statutes.”
Based upon the reasoning that paternity has been otherwise established,
the court has not allowed a wife to maintain an action for paternity where
the legal father signed the birth certificate, subsequently married the
mother, and participated in raising the child since birth. Williams-Raymond
v. Jones, 954 So. 2d 721 (Fla. 4th DCA 2007). In the pivotal case of Dept. of
Health & Rehabilitative Services v. Privette, 617 So. 2d 305, (Fla. 1993), the
court held that in a case where a legal father may lose his parental rights,
“before a blood test can be ordered in this type of case, the trial court is
required to hear argument of the parties, including the legal father, if he
chooses to appear, and a guardian ad litem appointed to represent the
child.”

Limited Rights for Biological Fathers. Some courts have, parenthetically,
recognized a potential limited right for a man to pursue a paternity action
for a child born during an intact marriage. In such cases, the man “would be
required to at least allege that a developed relationship exists between
himself and the child; an allegation of mere biological link to the child
36
would not suffice. G.F.C., 686 So. 2d at 1386. See also, Bellomo, 815 So. 2d
at 722; Fernandez v. McKenney, 776 So. 2d 1118, 1121 (Fla. 5th DCA
2001)(Sharp, J. concurring); Fernandez v. Fernandez, 857 So. 2d 997 (Fla.
5th DCA 2003). In Lander v. Smith, 906 So. 2d 1130 (Fla. 4th DCA 2005), the
court allowed a case to proceed by a putative biological father for a child
he fathered with the mother when she was married to but separated from
her husband, where his name appeared on the birth certificate in
contravention of §382.013(2)(a), Florida Statutes, where it was uncontested
that he was the biological father, where the husband lacked access to the
mother during the time of conception, and where he provided support and
established a relationship with the child. See also, L.J. v. A.S., 25 So. 3d
1284 (Fla. 2d DCA 2010) (The trial court erred in summarily dismissing the
putative father‟s petition based upon a lack of standing without first
allowing a hearing to establish such standing when the child at issue has a
biological father who is willing, able, and eager to parent and support the
child; a legal father who is not; and a mother who wishes to deprive the
child of a real father by declining to institute proceedings to divest the exhusband of legal parental rights); Nevitt v. Bonomo, 53 So. 3d 1078, 1081
(Fla. 1st DCA 2010) (The court erred in dismissing a paternity complaint for
a child conceived during a marriage but born after divorce even though a
nunc pro tunc order vacating the final judgment of dissolution of marriage
was entered. At the time the paternity action was filed and the child was
born, the divorce proceeding was pending.).
However, at least one court has rejected this “hypothetical” exception as
invalid and refused to accept it. Slowinski v. Sweeney, 64 So. 3d 128 (Fla.
1st DCA 2011).
37
38
III.
A.
B.
DISESTABLISHMENT OF PATERNITY
Relief from Judgment, Decrees, or Orders - Rule 1.540 Fla. R. Civ. P.,
Rule 12.540 Fla. Fam. L. R. P.

Prior to enactment of §742.18, Florida Statutes, the Florida Supreme Court
held that a “final judgment of dissolution of marriage which establishes a
child support obligation for a former husband is a final determination of
paternity. Any subsequent challenge of paternity must be brought under the
provisions of Fla. R. Civ. P. 1.540.” D. F. v. Dept. of Revenue ex rel L.F.,
823 So. 2d 97, 100 (Fla. 2002). Based upon the rule, relief from a judgment
based upon intrinsic fraud must be brought within one (1) year of its entry.
Parker v. Parker, 950 So. 2d 388 (Fla. 2007). Such time limitation also
applies to final judgments of paternity. Dept. of Revenue ex rel. Stephens
v. Boswell, 915 So. 2d 717 (Fla. 5th DCA 2005).

Intrinsic fraud applies to fraudulent conduct that arises within a proceeding
and pertains to issues that have been or could have been tried. Extrinsic
fraud involves conduct which is collateral to the issues tried in a case. In
other words, extrinsic fraud occurs where a defendant has somehow been
prevented from participating in a cause. In Parker, the Court held that a
wife‟s misrepresentation of paternity in a dissolution of marriage
proceeding is a matter of intrinsic fraud which must be brought within one
year of entry of the judgment. Parker, 950 So. 2d at 391. Similarly,
fraudulent inducement to stipulate to paternity is intrinsic fraud which must
be raised within the time allowed under Rule 1.540(b). Dept. of Revenue ex
rel. Stephens v. Boswell, 915 So. 2d at 723 (Fla. 5th DCA 2005).
Statutory Disestablishment
 In 2006 the Legislature enacted Chapter 2006-265, whereby a male may
seek to disestablish paternity or terminate a child support obligation.
Effective June 20, 2006, Section 742.18, Florida Statutes, established the
circumstances, procedures, and effect of a petition filed pursuant to the
statute. The statute created a new cause of action which does not require
allegations of fraud. Johnston v. Johnston, 979 So. 2d 337 (Fla. 1st DCA
2008). The petitions may even be filed by former husbands long after the
entry of a final judgment of dissolution of marriage. (17 years) Id. at 338.
Such petition must be filed prior to the child‟s 18th birthday. If the petition
is granted, the legitimacy of a child born during a lawful marriage is not
39
affected. §742.18(9), Florida Statutes. Further, the filing of a petition to
disestablish paternity does not preclude an individual from seeking relief
from a final judgment, decree, order, or proceedings pursuant to Rule
1.540, Fla. R. Civ. P., or from challenging a paternity determination
pursuant to §742.10(4), Florida Statutes. The requirements for
disestablishment of paternity include:

Petition. §742.18(1), Florida Statutes.
o Must be filed by a male.
o In a circuit court having jurisdiction over child support obligation or, if
child support was determined administratively and not ratified by a
court, in the circuit court where the mother or legal guardian or
custodian resides. If the mother or legal guardian or custodian are no
longer in the state of Florida, the petition may be filed in the circuit
court where the petitioner resides.
o Must be served on the mother or other legal guardian or custodian of the
child.
o Must Include:
 Affidavit - Newly Discovered Evidence stating that newly discovered
evidence relating to the paternity of the child has come to the
petitioner‟s knowledge since the initial paternity determination or
establishment of child support obligation.
o As long as the results meet the statute‟s other
requirements, DNA test results from a test performed after
the initial determination of paternity do satisfy the
statutory requirement for newly discovered evidence, even
if the respondent had suspicions that he was the father of
the child prior to the initial establishment of paternity.
P.G. v. E.W, 75 So. 3d 777 (Fla. 2d DCA 2011). However,
the court certified conflict with the First District Court‟s
decision in Hooks v. Quaintance, 71 So. 3d 908, 911 (Fla.
1st DCA 2011), in which the court held that “the plain
language in §742.18 requires a showing of newly discovered
evidence in addition to DNA test results indicating that the
male is not the father of the child.”
 Scientific Test Result administered within 90 days prior to filing
which indicates that the petitioner cannot be the father of the child,
OR an affidavit stating that he did not have access to the child prior
40

to the filing of the petition. The petitioner may file a petition
requesting testing if he does not have access to the child.
Affidavit - Child Support stating that the petitioner:
 Is current on all child support payments for the child at issue, OR
 That he has substantially complied with his child support
obligation and that any delinquency in his child support obligation
arose from his inability for just cause to pay the delinquent child
support when it became due.

Scientific Testing. §742.18(7), Florida Statutes.
o If the scientific test results are provided solely by the petitioner, the
court on its own motion may, and on the petition of any party shall,
order the child and the petitioner to submit to the applicable tests. Such
testing must be done not more than 30 days after the court issues the
order.
o If the petitioner willfully fails to submit to testing, or if the mother or
legal guardian or custodian of the child willfully fails to submit the child
for testing, the court shall issue an order determining the relief on the
petition against the party in noncompliance. If good cause is shown, such
failure shall not be considered willful. See Dept. of Revenue ex rel.
M.J.W. v. G.A.T., Jr., 76 So.3d 1083 (Fla. 2d DCA 2011).
o Nothing in this paragraph prevents a child from reestablishing paternity
under §742.10, Florida Statutes.
o The party requesting scientific testing shall pay any fees charged for the
tests. If the custodian of the child is receiving services from the
administrative agency in its role as an agency providing enforcement of
child support orders, that agency shall pay the costs of the testing if it
requests and may seek reimbursement for the fees from the person
against whom the court assesses the costs.

Order. §742.18(2), Florida Statutes.
o Required Findings: The court shall grant the relief upon a finding of all
of the following:
 Newly discovered evidence relating to the paternity of the child has
come to the petitioner‟s knowledge since the initial paternity
determination or establishment of a child support obligation.
 The scientific test was properly conducted.
 That the petitioner is current on all child support payments for the
child or that he has substantially complied with his child support
41




obligation and that any delinquency in his child support obligation
arose from his inability for just cause to pay the delinquent child
support when it became due.
That the petitioner has not adopted the child.
That the child was not conceived by artificial insemination while the
petitioner and the child‟s mother were in wedlock.
The petitioner did not act to prevent the biological father of the
child from asserting his paternal rights with respect for the child.
The child was younger than 18 years of age when the petition was
filed.

Prohibitive Conduct. §742.18(3), Florida Statutes. The court shall not set
aside the paternity determination or child support if the petitioner engaged
in the following conduct after learning that he was not the biological father
of the child:
o Married the mother of the child while known as the reputed father in
accordance with §742.091, Florida Statutes, and voluntarily assumed
the parental obligation and duty to pay child support;
o Acknowledged his paternity of the child in a sworn statement;
o Consented to be named as the child‟s biological father on the child‟s
birth certificate;
o Voluntarily promised in writing to support the child and was required
to support the child based on that promise;
o Received written notice from any state agency or any court directing
him to submit to scientific testing which he disregarded; or
o Signed a voluntary acknowledgment of paternity as provided in
§742.10(4), Florida Statutes.

Payment of child support. §742.18(5-6), Florida Statutes.
o The duty to pay child support and other legal obligations for the child
can only be suspended for good cause. However, the court may order
the child support to be held in the registry of the court until a final
determination of paternity has been made.
o If the relief is granted, such relief shall be limited to the issues of
prospective child support payments and termination of paternal
rights, custody, and visitation rights. The petitioner‟s previous status
continues in existence until an order granting relief is rendered. All
previous lawful actions are confirmed retroactively, but not
prospectively.
42
o This section does not create a cause of action to recover previously
paid child support.
o If relief on the petition is not granted, the court shall assess the costs
of the action and attorney‟s fees against the petitioner. §742.18(10),
Florida Statutes.
43
44
IV. ESTABLISHING SUPPORT ORDERS
A. Generally
 The court may at any time order either or both parents who owe a duty of
support to a child to pay support to the other parent or, in the case of both
parents, to a third party who has custody in accordance with the child support
guidelines schedule. §61.13(1)(a), Florida Statutes.
 All child support orders and income deduction orders entered must provide:
o For child support to terminate on a child‟s 18th birthday unless the court
finds or previously found that §743.07(2), Florida Statutes, applies, or is
otherwise agreed to by the parties;
o A schedule, based on the record existing at the time of the order,
stating the amount of the monthly child support obligation for all the
minor children at the time of the order and the amount of child support
that will be owed for any remaining children after one or more of the
children are no longer entitled to receive child support; and
o The month, day, and year that the reduction or termination of child
support becomes effective.
§61.13(1)(a), Florida Statutes.

All child support orders shall provide the full name and date of birth of each
minor child who is the subject of the child support order. §61.13(1)(d),
Florida Statutes.

Every petition for child support or for modification of child support shall be
accompanied by an affidavit which shows the party‟s income, allowable
deductions, and net income computed in accordance with this section. The
affidavit shall be served at the same time that the petition is served. The
respondent, whether or not a stipulation is entered, shall make an affidavit
which shows the party‟s income, allowable deductions, and net income
computed in accordance with this section. The respondent shall include his
or her affidavit with the answer to the petition or as soon thereafter as is
practicable, but in any case at least 72 hours prior to any hearing on the
finances of either party. §61.30(14), Florida Statutes.
45
B. Health Insurance

Each order for support shall contain a provision for health insurance for the
minor child when health insurance is reasonable in cost and accessible to
the child.

Health insurance is presumed to be reasonable in cost if the incremental
cost of adding health insurance for the child or children does not exceed 5
percent of the gross income of the parent responsible for providing health
insurance.

Health insurance is accessible to the child if the health insurance is
available to be used in the county of the child‟s primary residence or in
another county if the parent who has the most time under the time-sharing
schedule agrees. If the time-sharing schedule provides for equal timesharing, health insurance is accessible to the child if the health insurance is
available to be used in either county where the child resides or in another
county if both parents agree. The court may require the obligor to provide
health insurance or to reimburse the obligee for the cost of health
insurance for the minor child when insurance is provided by the obligee.

The court may deviate from what is presumed reasonable in cost only upon
a written finding explaining its determination why ordering or not ordering
the provision of health insurance or the reimbursement of the obligee‟s cost
for providing health insurance for the minor child would be unjust or
inappropriate.

The court shall apportion the cost of health insurance, and any non-covered
medical, dental, and prescription medication expenses of the child, to both
parties by adding the cost to the basic obligation. The court may order that
payment of non-covered medical, dental, and prescription medication
expenses of the minor child be made directly to the obligee on a percentage
basis. §61.13(1)(b), Florida Statutes.

After the health insurance costs are added to the basic obligation, any
moneys prepaid by a parent for health-related costs for the child or children
of this action shall be deducted from that parent‟s child support obligation
for that child or those children. §61.30(8), Florida Statutes.
46
C. Withholding

The union or employer shall withhold in the following order:
o Current support
o Premium payments for health insurance
o Past due support
o Other medical support or insurance
§61.13(1)(b)(5), Florida Statutes.

If the combined amount to be withheld for current support plus the
premium payment for health insurance exceeds the amount allowed under
the Consumer Credit Protection Act, and the health insurance cannot be
obtained unless the full amount of the premium is paid, the union or
employer may not withhold the premium payment. However, the union or
employer shall withhold the maximum allowed in the following order:
o Current support
o Past due support
o Other medical support or insurance
§61.13(1)(b)(5), Florida Statutes.

The court cannot place a restriction on the Department of Revenue‟s
statutory authority to withhold 40% of unemployment compensation
benefits to satisfy a parent‟s child support obligations. Dept. of Revenue v.
Varela, 67 So. 3d 1205, (Fla. 4th DCA 2011).
D. Life Insurance
To the extent necessary to protect an award of child support, the court may
order the obligor to purchase or maintain a life insurance policy or a bond, or
to otherwise secure the child support award with any other assets which may
be suitable for that purpose. §61.13(1)(c), Florida Statutes.
E. Income deduction
If both parties request and the court finds that it is in the best interest of the
child, support payments need not be subject to immediate income deduction.
§61.13(1)(d)(2), Florida Statutes.

Support orders that are not subject to immediate income deduction may be
directed through the depository or made payable directly to the obligee.
47


Payments made by immediate income deduction shall be made to the State
Disbursement Unit.
The court shall provide a copy of the order to the depository.
§61.13(1)(d)(2), Florida Statutes.
For support orders payable directly to the obligee, any party, or the
Department of Revenue in a IV-D case, may subsequently file an affidavit
with the depository alleging a default in payment of child support and
stating that the party wishes to require that payments be made through the
depository. The party shall provide copies of the affidavit to the court and
to each other party. Fifteen days after receipt of the affidavit, the
depository shall notify all parties that future payments shall be paid through
the depository, except that income deduction payments shall be made to
the State Disbursement Unit. §61.13(1)(d)(3), Florida Statutes.
F. Mediation

The court may refer the parties to mediation. §61.183(1), Florida Statutes.

Costs: In Title IV-D cases, any costs, including filing fees, recording fees,
mediation costs, service of process fees, and other expenses incurred by the
clerk of the circuit court, shall be assessed only against the non-prevailing
obligor after the court makes a determination of the non-prevailing
obligor‟s ability to pay such costs and fees. §61.183(1), Florida Statutes.

Confidentiality: Any information from the files, reports, case summaries,
mediator‟s notes, or other communications or materials relating to a
mediation proceeding pursuant to this section obtained by any person
performing mediation duties is exempt from inspection and copying.
§61.183(3), Florida Statutes.
G. Arriving at the correct amount
Generally

The child support guideline amount presumptively establishes the amount
the court shall order as child support in an initial or modification
proceeding for such support. §61.30(1)(a), Florida Statutes.
48

The court may order payment of child support which varies, plus or minus 5
percent, from the guideline amount, after considering all relevant factors,
including the needs of the child or children, age, station in life, standard of
living, and the financial status and ability of each parent. §61.30(1)(a),
Florida Statutes.

The court may order payment of child support in an amount which varies
more than 5 percent from such guideline amount only upon a written
finding explaining why ordering payment of such guideline amount would be
unjust or inappropriate. §61.30(1)(a), Florida Statutes.

The court shall order payment of child support which varies from the
guideline amount whenever any of the children are required by court order
or mediation agreement to spend a substantial amount of time [term
defined in statute, §61.30(11)(b)8, Florida Statutes] with either parent,
either temporarily or permanently. §61.30(1)(a), Florida Statutes.

The guidelines may provide the basis for proving a substantial change in
circumstances upon which a modification of an existing order may be
granted. However, the difference between the existing monthly obligation
and the amount provided for under the guidelines shall be at least 15
percent or $50, whichever amount is greater, before the court may find
that the guidelines provide a substantial change in circumstances.
§61.30(1)(b), Florida Statutes.

For each support order reviewed by the Department of Revenue, if the
amount of the child support award under the order differs by at least 10
percent but not less than $25 from the amount that would be awarded, the
Department of Revenue shall seek to have the order modified and any
modification shall be made without a requirement for proof or showing of a
change in circumstances. §61.30(1)(c), Florida Statutes.

Each parent‟s percentage share of the child support need shall be
determined by dividing each parent‟s net monthly income by the combined
net monthly income. §61.30(9), Florida Statutes.

Each parent‟s actual dollar share of the total minimum child support need
shall be determined by multiplying the minimum child support need by each
49
parent‟s percentage share of the combined monthly net income. §61.30(10),
Florida Statutes.

If the recurring income is not sufficient to meet the needs of the child, the
court may order child support to be paid from nonrecurring income or
assets. §61.30(13), Florida Statutes.
Gross Income
Gross income includes but is not limited to the following:
 Salary or wages.
 Bonuses, commissions, allowances, overtime, tips, and other similar
payments.
 Business income from sources such as self-employment, partnership, close
corporations, and independent contracts. “Business income” means gross
receipts minus ordinary and necessary expenses required to produce
income.
 Disability benefits.
 All workers‟ compensation benefits and settlements.
 Unemployment compensation.
 Pension, retirement, or annuity payments.
 Social security benefits.
 Spousal support received from a previous marriage or court ordered in the
marriage before the court.
 Interest and dividends. Rental income, which is gross receipts minus
ordinary and necessary expenses required to produce the income.
 Income from royalties, trusts, or estates.
 Reimbursed expenses or in kind payments to the extent that they reduce
living expenses.
 Gains derived from dealings in property, unless the gain is nonrecurring.
§61.30(2), Florida Statutes.
Public assistance shall be excluded from gross income. §61.30(2)(c), Florida
Statutes.
Unemployed or Underemployed parents
Monthly income shall be imputed to an unemployed or underemployed parent if such
unemployment or underemployment is found by the court to be voluntary on that
50
parent‟s part, absent a finding of fact by the court of physical or mental incapacity
or other circumstances over which the parent has no control. In the event of such
voluntary unemployment or underemployment, the employment potential and
probable earnings level of the parent shall be determined based upon his or her
recent work history, occupational qualifications, and prevailing earnings level in the
community if such information is available. §61.30(2)(b), Florida Statutes.
No information available/imputing income
If the information concerning a parent‟s income is unavailable, a parent fails to
participate in a child support proceeding, or a parent fails to supply adequate
financial information in a child support proceeding, income shall be automatically
imputed to the parent and there is a rebuttable presumption that the parent has
income equivalent to the median income of year-round full-time workers as derived
from current population reports or replacement reports published by the United
States Bureau of the Census. §61.30(2)(b), Florida Statutes.

The court may refuse to impute income to a parent if the court finds it
necessary for that parent to stay home with the child. §61.30(2)(b), Florida
Statutes.

In order for the court to impute income at an amount other than the
median income, the court must make specific findings of fact. The party
seeking to impute income has the burden to present competent, substantial
evidence that:
o the unemployment or underemployment is voluntary; and
o Identifies the amount and source of the imputed income, through
evidence of income from available employment for which the party is
suitably qualified by education, experience, current licensure, or
geographic location, with due consideration being given to the parties‟
time-sharing schedule and their historical exercise of the time-sharing
provided in the parenting plan [term defined in statute, §61.046(14),
Florida Statutes] or relevant order. §61.30(2)(b)(1), Florida Statutes.

For purposes of establishing an obligation for support, if a person who is
receiving public assistance is found to be non-cooperative, the Department
of Revenue may submit to the court an affidavit or written declaration
signed under penalty of perjury attesting to the income of that parent
51
based upon information available to the Department of Revenue.
§61.30(15), Florida Statutes.

Income may not be imputed based upon:
o Income records that are more than 5 years old at the time of the hearing
or trial at which imputation is sought; or
o Income at a level that a party has never earned in the past, unless
recently degreed, licensed, certified, relicensed, or recertified and thus
qualified for, subject to geographic location, with due consideration of
the parties‟ existing time-sharing schedule and their historical exercise
of the time-sharing provided in the parenting plan or relevant order.
§61.30(2)(b)(2), Florida Statutes.
Net income
The child support guidelines are based on the parents‟ combined net income
estimated to have been allocated to the child as if the parents and children were
living in an intact household. §61.29, Florida Statutes.

Net income is obtained by subtracting allowable deductions from gross
income. Allowable deductions include:
o Federal, state, and local income tax deductions, adjusted for actual
filing status and allowable dependents and income tax liabilities.
o Federal insurance contributions or self-employment tax.
o Mandatory union dues.
o Mandatory retirement payments.
o Health insurance payments, excluding payments for coverage of the
minor child.
o Court-ordered support for other children which is actually paid.
o Spousal support paid pursuant to a court order from a previous marriage
or the marriage before the court.
§61.30(3), Florida Statutes.
o Net income for each parent shall be computed by subtracting allowable
deductions from gross income. §61.30(4), Florida Statutes.
o Net income for each parent shall be added together for a combined net
income. §61.30(5), Florida Statutes.
52
If the obligor parent‟s net income is less than the amount in the guidelines
schedule:
 The parent should be ordered to pay a child support amount, determined on
a case-by-case basis, to establish the principle of payment and lay the basis
for increased support orders should the parent‟s income increase.
 The obligor parent‟s child support payment shall be the lesser of the obligor
parent‟s actual dollar share of the total minimum child support amount and
90 percent of the difference between the obligor parent‟s monthly net
income and the current poverty guidelines as periodically updated in the
Federal Register by the United States Department of Health and Human
Services pursuant to 42 U.S.C. s. 9902(2) for a single individual living alone.
o For combined monthly net income greater than the amount in the
guidelines schedule, the obligation is the minimum amount of support
provided by the guidelines schedule plus the following percentages
multiplied by the amount of income over $10,000: Child or Children
One Two Three Four Five Six
5.0% 7.5% 9.5% 11.0% 12.0% 12.5%
§61.30(6), Florida Statutes.

Speed Credit - The child support guidelines allow for a deduction from gross
income for support that is actually paid for later born children by court
ordered support. It is within the court‟s discretion to subtract the amount
of child support the payor would have been required to pay for the two
children‟s support if the payor and the payee‟s spouse had divorced, or to
consider the pre-existing support obligation in computing child support.
Speed v. Dept. of Revenue, 749 So. 2d 510 (Fla. 2d DCA 1999).
Table 1 Guidelines - Schedule effective as of April, 2012.
Guidelines
COMBINED
MONTHLY
NET
INCOME
800
850
900
950
1000
Schedule
ONE
CHILD
190
202
213
224
235
TWO
CHILDREN
THREE
CHILDREN
FOUR
CHILDREN
FIVE
CHILDREN
SIX
CHILDREN
211
257
302
347
365
213
259
305
351
397
216
262
309
355
402
218
265
312
359
406
220
268
315
363
410
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Deviation from the Statutory Amount
The court may order payment of child support which varies, plus or minus 5 percent,
from the guideline amount, after considering all relevant factors, including the
needs of the child or children, age, station in life, standard of living, and the
financial status and ability of each parent. §61.30(1)(a), Florida Statutes.
The court may order payment of child support in an amount which varies more than
5 percent from such guideline amount only upon a written finding explaining why
ordering payment of such guideline amount would be unjust or inappropriate.
§61.30(1)(a), Florida Statutes.
The court shall order payment of child support which varies from the guideline
amount whenever any of the children are required by court order or mediation
agreement to spend a substantial amount of time with either parent, either
temporarily or permanently. §61.30(1)(a), Florida Statutes. See Dept. of Revenue
ex. Rel. Sherman v. Daly, 74 So. 3d 165, (Fla. 1st DCA 2011) (underlying order
providing for deviation due to verbal visitation agreement was reversed because the
Legislature has expressed its intention to authorize deviations from the child
support guidelines only where there exists a written, court-authorized parentingplan).
In determining child support, a trial court must either follow the statutory
guidelines or make findings and give reasons explaining any deviation. Morrow v.
Frommer, 913 So. 2d 1195 (Fla. 4th DCA 2005).
The court may adjust the total minimum child support award, or either or both
parents‟ share of the total minimum child support award, based upon the following
deviation factors:
 Extraordinary medical, psychological, educational, or dental expenses.
 Independent income of the child, not to include moneys received by a child
from supplemental security income.
 The payment of support from a parent which has been regularly paid and
for which there is a demonstrated need.
 Seasonal variations in one or both parents‟ incomes or expenses.
 The age of the child, taking into account the greater needs of older
children.
 Special needs, such as costs that may be associated with the disability of a
child, that have traditionally been met within the family budget even
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though fulfilling those needs will cause the support to exceed the
presumptive amount established by the guidelines.
Total available assets of the obligee, obligor, and the child.
The impact of the Internal Revenue Service Child & Dependent Care Tax
Credit, Earned Income Tax Credit, and dependency exemption and waiver
of that exemption. The court may order a parent to execute a waiver of the
Internal Revenue Service dependency exemption if the paying parent is
current in support payments.
An application of the child support guidelines schedule that requires a
person to pay another person more than 55 percent of his or her gross
income for a child support obligation for current support resulting from a
single support order.
The particular parenting plan, such as where the child spends a significant
amount of time, but less than 20 percent of the overnights, with one
parent, thereby reducing the financial expenditures incurred by the other
parent; or the refusal of a parent to become involved in the activities of the
child.
“Parenting plan” means a document created to govern the relationship
between the parents relating to decisions that must be made regarding the
minor child and must contain a time-sharing schedule for the parents and
child.
The parenting plan must be:
1. Developed and agreed to by the parents and approved by a court; or
2. Established by the court, with or without the use of a court-ordered
parenting plan recommendation, if the parents cannot agree to a plan or
the parents agreed to a plan that is not approved by the court.
§61.046(14), Florida Statutes.

“Time-sharing schedule” means a timetable that must be included in the
parenting plan that specifies the time, including overnights and holidays,
that a minor child will spend with each parent. The time-sharing schedule
shall be:
1. Developed and agreed to by the parents of a minor child and
approved by the court; or
2. Established by the court if the parents cannot agree or if their
agreed-upon schedule is not approved by the court.
§61.046(23), Florida Statutes.

For purposes of adjusting any award of child support under this section,
“substantial amount of time” means that a parent exercises time-sharing
60
at least 20 percent of the overnights of the year. §61.30(11)(b)8, Florida
Statutes. (Emphasis added.)

Any other adjustment that is needed to achieve an equitable result which
may include, but not be limited to, a reasonable and necessary existing
expense or debt. Such expense or debt may include, but is not limited to, a
reasonable and necessary expense or debt that the parties jointly incurred
during the marriage.
§61.30(11)(a), Florida Statutes.
Whenever a particular parenting plan provides that each child spend a substantial
amount of time with each parent, the court shall adjust any award of child support,
as follows:
 Calculate the amount of support obligation apportioned to each parent
without including day care and health insurance costs in the calculation and
multiply the amount by 1.5.
 Calculate the percentage of overnight stays the child spends with each
parent.
 Multiply each parent‟s support obligation as calculated by the percentage of
the other parent‟s overnight stays with the child.
 The difference between the amounts shall be the monetary transfer
necessary between the parents for the care of the child, subject to an
adjustment for day care and health insurance expenses.
 Calculate the net amounts owed by each parent for the expenses incurred
for day care and health insurance coverage for the child.
 Adjust the support obligation owed by each parent by crediting or debiting
the amount calculated above. This amount represents the child support
which must be exchanged between the parents. §61.30(11)(b), Florida
Statutes.
The court may deviate from the child support amount calculated based upon the
obligee parent‟s low income and ability to maintain the basic necessities of the
home for the child, the likelihood that either parent will actually exercise the timesharing schedule set forth in the parenting plan granted by the court, and whether
all of the children are exercising the same time-sharing schedule. §61.30(11)(b)(7),
Florida Statutes.
61
For purposes of adjusting any award of child support, “substantial amount of time”
means that a parent exercises time-sharing at least 20 percent of the overnights of
the year. §61.30(11)(b)(8), Florida Statutes.
Child Care
Child care costs incurred due to employment, job search, or education calculated to
result in employment or to enhance the income of the current employment of either
parent shall be added to the basic obligation. After the child care costs are added,
any moneys prepaid by a parent for child care costs for the child or children of this
action shall be deducted from that parent‟s child support obligation for that child or
those children. Child care costs may not exceed the level required to provide quality
care from a licensed source. §61.30(7), Florida Statutes.
Retroactive Awards
In an initial determination of child support, the court has discretion to award child
support retroactive to the date when the parents did not reside together in the
same household with the child, not to exceed a period of 24 months preceding the
filing of the petition, regardless of whether that date precedes the filing of the
petition. In determining the retroactive award in such cases, the court shall
consider the following:
 The court shall apply the guidelines schedule in effect at the time of the
hearing subject to the obligor‟s demonstration of his or her actual income
during the retroactive period. Failure of the obligor to so demonstrate shall
result in the court using the obligor‟s income at the time of the hearing in
computing child support for the retroactive period. In IV-D cases, even if
the obligor does not demonstrate the actual income during the retroactive
period, if Department of Revenue has obtained records that do show the
actual amount, then the information Department of Revenue has must be
used by the court using the obligor‟s income at the time of the hearing in
computing child support for the retroactive period. Salters v. Dept. of
Revenue, Child Support Enforcement Program obo Mobley, 32 So. 3d 777
(Fla. 2d DCA 2010).
 All actual payments made by a parent to the other parent or the child or
third parties for the benefit of the child throughout the proposed
retroactive period.
 The court should consider an installment payment plan for the payment of
retroactive child support.
62
§61.30(17), Florida Statutes.
Establishing income deduction orders
Upon the entry of an order establishing or enforcing child support, or for alimony
and child support, other than a temporary order, the court shall enter a separate
order for income deduction if one has not been entered. §61.1301(1)(a), Florida
Statutes.
Upon the entry of a temporary order establishing support or the entry of a
temporary order enforcing or modifying a temporary order of support, the court may
enter a separate order of income deduction. §61.1301(1)(a), Florida Statutes.
Copies of the income deduction order shall be served on the obligee and obligor. If
the order establishing, enforcing, or modifying the obligation directs that payments
be made through the depository, the court shall provide to the depository a copy of
the order as well. §61.1301(1)(a), Florida Statutes.
If the obligee is a recipient of Title IV-D services, the court shall furnish to the
Department of Revenue (as the state‟s Title IV-D agency) a copy of the income
deduction order and the order establishing, enforcing, or modifying the obligation.
§61.1301(1)(a), Florida Statutes.
The income deduction notice must state that it is based upon a valid support order
and that it contains an income deduction requirement or upon a separate income
deduction order. The income deduction notice must contain the notice to payor
provisions and the case number, the court that entered the order, and the date
entered. §61.1301(1)(a)(2), Florida Statutes.
In non-Title IV-D cases, the income deduction notice must be accompanied by a
copy of the support order upon which the notice is based. In Title IV-D cases, upon
request of a payor, the Title IV-D agency shall furnish the payor a copy of the
income deduction order. §61.1301(1)(a)(4), Florida Statutes.
The income deduction order shall:
 Direct a payor to deduct from all income due and payable to an obligor the
amount required by the court to meet the obligor‟s support obligation
including any attorney‟s fees or costs owed and forward the deducted
amount pursuant to the order.
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State the amount of arrearage owed, if any, and direct a payor to withhold
an additional 20 percent or more of the periodic amount specified in the
order establishing, enforcing, or modifying the obligation, until full payment
is made of any arrearage, attorney‟s fees and costs owed, provided no
deduction shall be applied to attorney‟s fees and costs until the full amount
of any arrearage is paid.
Provide that if a delinquency accrues after the order establishing,
modifying, or enforcing the obligation has been entered and there is no
order for repayment of the delinquency or a preexisting arrearage, a payor
shall deduct an additional 20 percent of the current support obligation or
other amount agreed to by the parties until the delinquency and any
attorney‟s fees and costs are paid in full. No deduction may be applied to
attorney‟s fees and costs until the delinquency is paid in full.
Direct a payor not to deduct in excess of the amounts allowed under s.
303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b).
Direct whether a payor shall deduct all, a specified portion, or no income
which is paid in the form of a bonus or other similar one-time payment, up
to the amount of arrearage reported in the income deduction notice or the
remaining balance thereof, and forward the payment to the governmental
depository. For purposes of this subparagraph, “bonus” means a payment in
addition to an obligor‟s usual compensation and which is in addition to any
amounts contracted for or otherwise legally due and shall not include any
commission payments due an obligor.
In Title IV-D cases, direct a payor to provide to the court depository the
date on which each deduction is made.
In Title IV-D cases, if an obligation to pay current support is reduced or
terminated due to emancipation of a child and the obligor owes an
arrearage, retroactive support, delinquency, or costs, direct the payor to
continue the income deduction at the rate in effect immediately prior to
emancipation until all arrearages, retroactive support, delinquencies, and
costs are paid in full or until the amount of withholding is modified.
Direct that all payments in those cases in which the obligee is receiving
Title IV-D services and in those cases in which the obligee is not receiving
Title IV-D services in which the initial support order was issued in this state
on or after January 1, 1994, and in which the obligor‟s child support
obligation is being paid through income deduction, be made payable to and
delivered to the State Disbursement Unit. Notwithstanding any other
statutory provision to the contrary, funds received by the State
64
Disbursement Unit shall be held, administered, and disbursed by the State
Disbursement Unit pursuant to the provisions of this chapter.
§61.1301(1)(b), Florida Statutes.

The income deduction order is effective immediately unless the court upon
good cause shown finds that the income deduction order shall be effective
upon a delinquency in an amount specified by the court but not to exceed 1
month‟s payment, pursuant to the order establishing, enforcing, or
modifying the obligation. §61.1301(1)(c), Florida Statutes.

In order to find good cause, the court must at a minimum make written
findings that:
o Explain why implementing immediate income deduction would not be in
the child‟s best interest;
o There is proof of timely payment of the previously ordered obligation
without an income deduction order in cases of modification; and
o There is an agreement by the obligor to advise the IV-D agency and court
depository of any change in payor and health insurance; or
 There is a signed written agreement providing an alternative
arrangement between the obligor and the obligee and, at the
option of the IV-D agency, by the IV-D agency in IV-D cases in
which there is an assignment of support rights to the state,
reviewed and entered in the record by the court. §61.1301(1)(c),
Florida Statutes.

The income deduction order shall be effective as long as the order upon
which it is based is effective or until further order of the court. In those
cases in which the obligee is receiving Title IV-D services and in those cases
in which the obligee is not receiving Title IV-D services in which the initial
support order was issued in this state on or after January 1, 1994, and in
which the obligor‟s child support obligation is being paid through income
deduction, such payments shall be made payable to and delivered to the
State Disbursement Unit. §61.1301(1)(d), Florida Statutes.

When the court orders the income deduction to be effective immediately,
the court shall furnish to the obligor a statement of his or her rights,
remedies, and duties in regard to the income deduction order. The
statement shall state:
o All fees or interest which shall be imposed.
65
o The total amount of income to be deducted for each pay period until the
arrearage, if any, is paid in full and shall state the total amount of
income to be deducted for each pay period thereafter. The amount
deducted may not be in excess of that allowed under s. 303(b) of the
Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended.
o That the income deduction order applies to current and subsequent
payors and periods of employment.
o That a copy of the income deduction order or, in Title IV-D cases, the
income deduction notice, will be served on the obligor‟s payor or payors.
o That enforcement of the income deduction order may only be contested
on the ground of mistake of fact regarding the amount owed pursuant to
the order establishing, enforcing, or modifying the obligation, the
arrearages, or the identity of the obligor, the payor, or the obligee.
o That the obligor is required to notify the obligee and, when the obligee
is receiving IV-D services, the IV-D agency within 7 days of changes in
the obligor‟s address, payors, and the addresses of his or her payors.
o That in a Title IV-D case, if an obligation to pay current support is
reduced or terminated due to emancipation of a child and the obligor
owes an arrearage, retroactive support, delinquency, or costs, income
deduction continues at the rate in effect immediately prior to
emancipation until all arrearages, retroactive support, delinquencies,
and costs are paid in full or until the amount of withholding is modified.
§61.1301(1)(e), Florida Statutes.

Delinquencies:
o If a support order was entered before January 1, 1994, the court orders
the income deduction to be effective upon a delinquency, or a
delinquency has accrued under an order entered before July 1, 2006,
that established, modified, or enforced the obligation and there is no
order for repayment of the delinquency or a preexisting arrearage, the
obligee or, in Title IV-D cases, the Title IV-D agency may enforce the
income deduction by serving a notice of delinquency on the obligor.
§61.1301(1)(f), Florida Statutes.

The notice of delinquency shall state:
o The terms of the order establishing, enforcing, or modifying the
obligation.
o The period of delinquency and the total amount of the delinquency as of
the date the notice is mailed.
66
o All fees or interest which may be imposed.
o The total amount of income to be deducted for each pay period until the
arrearage, and all applicable fees and interest, is paid in full and shall
state the total amount of income to be deducted for each pay period
thereafter. The amount deducted may not be in excess of that allowed
under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s.
1673(b), as amended.
o That the income deduction order applies to current and subsequent
payors and periods of employment.
o That a copy of the notice of delinquency will be served on the obligor‟s
payor or payors, together with a copy of the income deduction order or,
in Title IV-D cases, the income deduction notice, unless the obligor
applies to the court to contest enforcement of the income deduction. If
the income deduction order being enforced was rendered by the Title IVD agency pursuant to §409.2563, Florida Statutes, and the obligor
contests the deduction, the obligor shall file a petition for an
administrative hearing with the Title IV-D agency. The application or
petition shall be filed within 15 days after the date the notice of
delinquency was served.
o That enforcement of the income deduction order may only be contested
on the ground of mistake of fact regarding the amount owed pursuant to
the order establishing, enforcing, or modifying the obligation, the
amount of arrearages, or the identity of the obligor, the payor, or the
obligee.
o That the obligor is required to notify the obligee of the obligor‟s current
address and current payors and of the address of current payors. All
changes shall be reported by the obligor within 7 days. If the IV-D agency
is enforcing the order, the obligor shall make these notifications to the
agency instead of to the obligee. §61.1301(1)(f), Florida Statutes.
The failure of the obligor to receive the notice of delinquency does not preclude
subsequent service of the income deduction order or, in Title IV-D cases, the income
deduction notice on the obligor‟s payor. A notice of delinquency which fails to state
an arrearage does not mean that an arrearage is not owed. §61.1301(1)(f)(2),
Florida Statutes.
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Enforcement of income deduction orders
Service
The obligee or his or her agent shall serve an income deduction order and notice to
payor, or, in Title IV-D cases, the Department of Revenue shall issue an income
deduction notice, and in the case of a delinquency a notice of delinquency, on the
obligor‟s payor unless the obligor has applied for a hearing to contest the
enforcement of the income deduction.
 Service by or upon any person who is a party to a proceeding under this
section shall be made in the manner prescribed in the Florida Rules of Civil
Procedure for service upon parties.
 Service upon an obligor‟s payor or successor payor under this section shall
be made by prepaid certified mail, return receipt requested, or in the
manner prescribed in chapter 48, Florida Statutes.
§61.1301(2)(a), Florida Statutes.
Hearing
The obligor, within 15 days after service of a notice of delinquency, may apply for a
hearing to contest the enforcement of the income deduction on the ground of
mistake of fact regarding the amount owed, the amount of the arrearage, or the
identity of the obligor, the payor, or the obligee. §61.1301(2)(c)(1), Florida
Statutes.
 The obligor shall send a copy of the pleading to the obligee and, if the
obligee is receiving IV-D services, to the IV-D agency. The timely filing of
the pleading shall stay service of an income deduction order or, in Title IV-D
cases, income deduction notice on all payors of the obligor until a hearing is
held and a determination is made as to whether enforcement of the income
deduction order is proper. The payment of a delinquent obligation by an
obligor upon entry of an income deduction order shall not preclude service
of the income deduction order or, in Title IV-D cases, an income deduction
notice on the obligor‟s payor. §61.1301(2)(c)(1), Florida Statutes.
 When an obligor timely requests a hearing to contest enforcement of an
income deduction order, the court, after due notice to all parties and the
IV-D agency if the obligee is receiving IV-D services, shall hear the matter
within 20 days after the application is filed. The court shall enter an order
resolving the matter within 10 days after the hearing. A copy of this order
shall be served on the parties and the IV-D agency if the obligee is receiving
IV-D services. If the court determines that income deduction is proper, it
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

shall specify the date the income deduction order must be served on the
obligor‟s payor. §61.1301(2)(c)(2), Florida Statutes.
When a court determines that an income deduction order is proper, the
obligee or his or her agent shall cause a copy of the notice of delinquency
to be served on the obligor‟s payors. A copy of the income deduction order
or, in Title IV-D cases, income deduction notice, and in the case of a
delinquency a notice of delinquency, shall also be furnished to the obligor.
§61.1301(2)(d), Florida Statutes.
The notice to payor or, in Title IV-D cases, income deduction notice shall
contain only information necessary for the payor to comply with the order
providing for income deduction. The notice shall:
o Provide the obligor‟s social security number.
o Require the payor to deduct from the obligor‟s income the amount
specified in the income deduction order, and in the case of a
delinquency the amount specified in the notice of delinquency, and to
pay that amount to the obligee or to the depository, as appropriate. The
amount actually deducted plus all administrative charges shall not be in
excess of the amount allowed under s. 303(b) of the Consumer Credit
Protection Act, 15 U.S.C. s. 1673(b);
o Instruct the payor to implement income deduction no later than the first
payment date which occurs more than 14 days after the date the income
deduction notice was served on the payor, and the payor shall conform
the amount specified in the income deduction order or, in Title IV-D
cases, income deduction notice to the obligor‟s pay cycle. The court
should request at the time of the order that the payment cycle reflect
that of the payor;
o Instruct the payor to forward, within 2 days after each date the obligor
is entitled to payment from the payor, to the obligee or to the
depository the amount deducted from the obligor‟s income, a statement
as to whether the amount totally or partially satisfies the periodic
amount specified in the income deduction order or, in Title IV-D cases,
income deduction notice, and the specific date each deduction is made.
If the IV-D agency is enforcing the order, the payor shall make these
notifications to the agency instead of the obligee;
o Specify that if a payor fails to deduct the proper amount from the
obligor‟s income, the payor is liable for the amount the payor should
have deducted, plus costs, interest, and reasonable attorney‟s fees;
69
o Provide that the payor may collect up to $5 against the obligor‟s income
to reimburse the payor for administrative costs for the first income
deduction and up to $2 for each deduction thereafter;
o State that the notice to payor or, in Title IV-D cases, income deduction
notice, and in the case of a delinquency the notice of delinquency, are
binding on the payor until further notice by the obligee, IV-D agency, or
the court or until the payor no longer provides income to the obligor;
o Instruct the payor that, when he or she no longer provides income to the
obligor, he or she shall notify the obligee and shall also provide the
obligor‟s last known address and the name and address of the obligor‟s
new payor, if known; and that, if the payor violates this provision, the
payor is subject to a civil penalty not to exceed $250 for the first
violation or $500 for any subsequent violation. If the IV-D agency is
enforcing the order, the payor shall make these notifications to the
agency instead of to the obligee. Penalties shall be paid to the obligee
or the IV-D agency, whichever is enforcing the income deduction order;
o State that the payor shall not discharge, refuse to employ, or take
disciplinary action against an obligor because of the requirement for
income deduction and shall state that a violation of this provision
subjects the payor to a civil penalty not to exceed $250 for the first
violation or $500 for any subsequent violation. Penalties shall be paid to
the obligee or the IV-D agency, whichever is enforcing the income
deduction, if any alimony or child support obligation is owing. If no
alimony or child support obligation is owing, the penalty shall be paid to
the obligor;
o State that an obligor may bring a civil action in the courts of this state
against a payor who refuses to employ, discharges, or otherwise
disciplines an obligor because of income deduction. The obligor is
entitled to reinstatement and all wages and benefits lost, plus
reasonable attorney‟s fees and costs incurred;
o Inform the payor that the requirement for income deduction has priority
over all other legal processes under state law pertaining to the same
income and that payment, as required by the notice to payor or income
deduction notice, is a complete defense by the payor against any claims
of the obligor or his or her creditors as to the sum paid;
o Inform the payor that, when the payor receives notices to payor or
income deduction notices requiring that the income of two or more
obligors be deducted and sent to the same depository, the payor may
combine the amounts that are to be paid to the depository in a single
70
payment as long as the payments attributable to each obligor are clearly
identified;
o Inform the payor that if the payor receives more than one notice to
payor or income deduction notice against the same obligor, the payor
shall contact the court or, in Title IV-D cases, the Title IV-D agency for
further instructions. Upon being so contacted, the court or, in Title IV-D
cases when all the cases upon which the notices are based are Title IV-D
cases, the Title IV-D agency shall allocate amounts available for income
deduction as provided in subsection (4); and
o State that in a Title IV-D case, if an obligation to pay current support is
reduced or terminated due to the emancipation of a child and the
obligor owes an arrearage, retroactive support, delinquency, or costs,
income deduction continues at the rate in effect immediately prior to
emancipation until all arrearages, retroactive support, delinquencies,
and costs are paid in full or until the amount of withholding is modified.
§61.1301(2)(e), Florida Statutes.

At any time an income deduction order is being enforced, the obligor may
apply to the court for a hearing to contest the continued enforcement of
the income deduction with a copy to the obligee and, in IV-D cases, to the
IV-D agency. If the income deduction order being enforced was rendered by
the IV-D agency and the obligor contests the withholding, the obligor shall
file a petition for an administrative hearing with the IV-D agency. The
application or petition does not affect the continued enforcement of the
income deduction until the court or IV-D agency, if applicable, enters an
order granting relief to the obligor. The obligee or the IV-D agency is
released from liability for improper receipt of moneys pursuant to an
income deduction order upon return to the appropriate party of any moneys
received. §61.1301(2)(f), Florida Statutes.

An obligee or his or her agent shall enforce an income deduction order
against an obligor‟s successor payor who is located in this state in the same
manner prescribed in this section for the enforcement of an income
deduction order against a payor. §61.1301(2)(g), Florida Statutes.

When an income deduction order is to be enforced against a payor located
outside the state, the obligee who is receiving IV-D services or his or her
agent shall promptly request the agency responsible for income deduction
in the other state to enforce the income deduction order. The request shall
71
contain all information necessary to enforce the income deduction order,
including the amount to be periodically deducted, a copy of the order
establishing, enforcing, or modifying the obligation, and a statement of
arrearages, if applicable. §61.1301(2)(h)(1), Florida Statutes.

When there is more than one income deduction notice against the same
obligor, the amounts available for income deduction must be allocated
among all obligee families as follows:
o For computation purposes, all obligations must be converted to a
common payroll frequency, and the percentage of deduction allowed
under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s.
1673(b), as amended, must be determined. The amount of income
available for deduction is determined by multiplying that percentage by
the obligor‟s net income.
o If the total monthly support obligation to all families is less than the
amount of income available for deduction, the full amount of each
obligation must be deducted.
o If the total monthly support obligation to all families is greater than the
amount of income available for deduction, the amount of the deduction
must be prorated, giving priority to current support, so that each family
is allocated a percentage of the amount deducted. The percentage to be
allocated to each family is determined by dividing each current support
obligation by the total of all current support obligations. If the total of
all current support obligations is less than the income available for
deduction, and past due support is owed to more than one family, then
the remainder of the available income must be prorated so that each
family is allocated a percentage of the remaining income available for
deduction. The percentage to be allocated to each family is determined
by dividing each past due support obligation by the total of all past due
support obligations. §61.1301(4), Florida Statutes.
For income deduction orders entered before July 1, 2004, the Department of
Revenue shall send by certified mail, restricted delivery, return receipt requested, a
notice to the obligor at the most recent address provided by the obligor to the
tribunal that issued the order or a more recent address if known, notice of this
requirement, that the obligor may contest the withholding as provided by paragraph
(2)(f), and that the obligor may request the tribunal that issued the income
deduction to modify the amount of the withholding. This paragraph provides an
additional remedy for collection of unpaid support and applies to cases in which a
72
support order or income deduction order was entered before, on, or after July 1,
2004. §61.1301(3)(b), Florida Statutes.
If a delinquency accrues after an order establishing, modifying, or enforcing a
support obligation has been entered, an income deduction order entered after July
1, 2006, is in effect, and there is no order for repayment of the delinquency or a
preexisting arrearage, a payor who is served with an income deduction order or, in a
Title IV-D case, an income deduction notice shall deduct an additional 20 percent of
the current support obligation or other amount agreed to by the parties until the
delinquency and any attorney‟s fees and costs are paid in full. No deduction may be
applied to attorney‟s fees and costs until the delinquency is paid in full.
§61.1301(3)(c), Florida Statutes.
Interstate orders
 When the IV-D agency is requested by the agency responsible for income
deduction in another state to enforce an income deduction order against a
payor located in this state for the benefit of an obligee who is being
provided IV-D services by the agency in the other state, the IV-D agency
shall act promptly pursuant to the applicable provisions of this section.
§61.1301(2)(h)(2), Florida Statutes.

When an obligor who is subject to an income deduction order enforced
against a payor located in this state for the benefit of an obligee who is
being provided IV-D services by the agency responsible for income deduction
in another state terminates his or her relationship with his or her payor, the
IV-D agency shall notify the agency in the other state and provide it with
the name and address of the obligor and the address of any new payor of
the obligor, if known. §61.1301(2)(h)(3), Florida Statutes.

The procedural rules and laws of this state govern the procedural aspects of
income deduction whenever the agency responsible for income deduction in
another state requests the enforcement of an income deduction order in
this state. §61.1301(2)(h)(4)(a), Florida Statutes.

Except with respect to when withholding must be implemented, which is
controlled by the state where the order establishing, enforcing, or
modifying the obligation was entered, the substantive law of this state shall
apply whenever the agency responsible for income deduction in another
73
state requests the enforcement of an income deduction in this state.
§61.1301(2)(h)(4)(b), Florida Statutes.

When the IV-D agency is requested by an agency responsible for income
deduction in another state to implement income deduction against a payor
located in this state for the benefit of an obligee who is being provided IV-D
services by the agency in the other state or when the IV-D agency in this
state initiates an income deduction request on behalf of an obligee
receiving IV-D services in this state against a payor in another state,
pursuant to this section or the Uniform Interstate Family Support Act, the
IV-D agency shall file the interstate income deduction documents, or an
affidavit of such request when the income deduction documents are not
available, with the depository and if the IV-D agency in this state is
responding to a request from another state, provide copies to the payor and
obligor. §61.1301(2)(h)(4)(c), Florida Statutes.

The depository created pursuant to §61.181 shall accept the interstate
income deduction documents or affidavit and shall establish an account for
the receipt and disbursement of child support or child support and alimony
payments and advise the IV-D agency of the account number in writing
within 2 days after receipt of the documents or affidavit.
§61.1301(2)(h)(4)(c), Florida Statutes.
Employer action
A person may not discharge, refuse to employ, or take disciplinary action against an
employee because of the enforcement of an income deduction order. An employer
who violates this subsection is subject to a civil penalty not to exceed $250 for the
first violation or $500 for any subsequent violation. Penalties shall be paid to the
obligee or the IV-D agency, whichever is enforcing the income deduction, if any
alimony or child support is owing. If no alimony or child support is owing, the
penalty shall be paid to the obligor. §61.1301(2)(j)(1), Florida Statutes.
Arrearages
In a Title IV-D case, if an obligation to pay current support is reduced or terminated
due to the emancipation of a child and the obligor owes an arrearage, retroactive
support, delinquency, or costs, income deduction continues at the rate in effect
immediately prior to emancipation until all arrearages, retroactive support,
delinquencies, and costs are paid in full or until the amount of withholding is
modified. Any income-deducted amount that is in excess of the obligation to pay
74
current support shall be credited against the arrearages, retroactive support,
delinquency, and costs owed by the obligor. §61.1301(3)(b), Florida Statutes.
State Disbursement Unit/depository/direct pay

The clerk of the court operates the child support depository, and each
depository participates in the State Disbursement Unit.

Payments on non-Title IV-D cases without income deduction orders shall not
be sent to the State Disbursement Unit. §61.181(1)(a), Florida Statutes.

For payments not required to be processed through the State Disbursement
Unit, the depository shall collect and distribute all support payments paid
into the depository to the appropriate party. §61.181(3)(a), Florida
Statutes.

When time-sharing of a child is relinquished by a parent who is entitled to
receive child support moneys from the depository to the custody of a
licensed or registered long-term care child agency, that agency may request
from the court an order directing child support payments that would
otherwise be distributed to the parent be distributed to the agency for the
period of time that the child is with the agency. Thereafter, payments shall
be distributed to the agency as if the agency were the parent until further
order of the court. §61.181(3)(d), Florida Statutes.
State Disbursement Unit
The State Disbursement Unit is responsible for the collection and disbursement of
payments for:
 All support cases enforced by the Department of Revenue pursuant to Title
IV-D of the Social Security Act; and
 All child support cases not being enforced by the Department of Revenue
pursuant to Title IV-D of the Social Security Act in which the initial support
order was issued in this state on or after January 1, 1994, and in which the
obligor‟s child support obligation is being paid through income deduction.
§61.1824(1), Florida Statutes.
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The State Disbursement Unit shall perform the following functions:
 Disburse all receipts from intercepts, including, but not limited to, United
States Internal Revenue Service, unemployment compensation, lottery, and
administrative offset intercepts.
 Provide employers and payors with one address to which all income
deduction collections are sent.
 When there is more than one income deduction order being enforced
against the same obligor by the payor, allocate the amounts available for
income deduction.
 To the extent feasible, use automated procedures for the collection and
disbursement of support payments, including, but not limited to, having
procedures for:
o Receipt of payments from obligors, employers, other states and
jurisdictions, and other entities.
o Timely disbursement of payments to obligees, the Department of
Revenue, and other state Title IV-D agencies.
o Accurate identification of payment source and amount.
o Furnishing any parent, upon request, timely information on the current
status of support payments under an order requiring payments to be
made by or to the parent.
o Electronic disbursement of support payments to obligees. §61.1824(3),
Florida Statutes.
Certified copies of payment records maintained by a depository shall, without
further proof, be admitted into evidence in any legal proceeding in this state.
§61.1301(2)(i), Florida Statutes.
The depository created pursuant to §61.181 shall accept the interstate income
deduction documents or affidavit and shall establish an account for the receipt and
disbursement of child support or child support and alimony payments and advise the
IV-D agency of the account number in writing within 2 days after receipt of the
documents or affidavit. §61.1301(2)(h)(4)(c), Florida Statutes.
Extraordinary expenses
The court may adjust the total minimum child support award, or either or both
parents' share of the total minimum child support award, based upon extraordinary
medical, psychological, educational, or dental expenses. §61.30(11)(a), Florida
Statutes.
76
Private educational expenses may be awarded only where the non-custodial parent
has the ability to pay for that private school. Pollow v. Pollow, 712 So. 2d 1235 (Fla.
4th DCA 1998).
A provision in a final decree of dissolution which required the father to pay tuition
for private school with no limitation expressed should be construed to require the
payment of tuition in a reasonable amount. Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d
DCA 1980).
Tax exemptions
Section 61.30(11)(a), Florida Statutes, authorizes the courts to take into account
the impact of the dependency exemption and waiver of that exemption when
determining child support.
The court does not have the power to allocate the federal tax dependency
exemption. However, it can require the custodial parent to transfer the exemption
to the noncustodial parent through the execution of a waiver if the non-custodial
parent is current with his/her support payments. Geddies v. Geddies, 43 So. 3d 888
(Fla. 1st DCA 2010).
Child support schedule in subsequent child situations

If a parent with a support obligation has other children living with him or
her who were born or adopted after the support obligation arose, the court,
when considering an upward modification of an existing award, may
disregard the income from secondary employment obtained in addition to
the parent‟s primary employment if the court determines that the
employment was obtained primarily to support the subsequent children.
§61.30(12)(a), Florida Statutes.

Except as provided above, the existence of such subsequent children
should not as a general rule be considered by the court as a basis for
disregarding the amount provided in the guidelines schedule. The parent
with a support obligation for subsequent children may raise the existence
of such subsequent children as a justification for deviation from the
guidelines schedule. However, the income of the other parent of the
subsequent children shall be considered by the court in determining
77
whether or not there is a basis for deviation from the guideline amount.
§61.30(12)(b), Florida Statutes.

The issue of subsequent children may only be raised in a proceeding for an
upward modification of an existing award and may not be applied to justify
a decrease in an existing award. §61.30(12)(c), Florida Statutes.

Unless there are special circumstances, subsequent children will not justify
a deviation from the child support guidelines. Mena v. Mena, 967 So. 2d
360 (Fla. 4th DCA 2007).
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79
V. COLLECTION AND ENFORCEMENT OF SUPPORT
I.
Generally
 Venue - Venue for the collection and/or enforcement of child support is the
county in which the petitioner resides or in which the obligor for the support
is found. §61.17(1)(a), Florida Statutes.
 Enforcement (Also see previous section on income deduction orders)
o Enforcement of child support is initially accomplished by the entry of an
income deduction order. §61.1301(1)(a), Florida Statutes.
o The entry of an income deduction order is mandatory for enforcement of
current support and arrearages. §61.1301. See Dept. of Revenue v.
Laporte, 735 So. 2d 574 (2d DCA 1999).
o An income deduction order is effective immediately. The Court has
discretion to stay the effective date of an income deduction order until
the payments are one month delinquent. §61.1301(1)(c), Florida Statutes.
o The Court must find good cause to stay an income deduction order. A
showing of good cause must include:
• Written findings that explain why implementing an income
deduction would not be in the child‟s best interest,
• In the case of modification, proof of timely payment of the
previously ordered obligation without an income deduction
order, and
• Either an agreement by the obligor to advise the Title IV-D
agency of a change in employment or health insurance
coverage, or a signed written agreement providing an
alternative agreement between the obligor and obligee.
§61.1301(1)(c), Florida Statutes.
o In extraordinary or compelling circumstances, a court may decline to
enforce a past-due obligation to pay child support. Fox v. Haislett, 388
So. 2d 1261(Fla. 2d DCA 1980).
II.
Methods for Enforcement/Collection
Garnishment
 Federal pay is subject to garnishment for members of the military and civil
employees of the United States. 42 U.S.C. 659 (Social Security Act, section
459 added by Pub.L. 93-647, part B, sec. 101(a), 88 Stat. 2357, as amended
80
by the Tax Reform and Simplification Act of 1977, Pub.L. 95-30, title V, sec.
502, 91 Stat. 157).

Suspension of an obligor‟s driver‟s license and/or vehicle registration.
§61.13016, Florida Statutes.

The suspension process may be initiated by the Title IV-D agency, or, upon
request of the obligee, the depository or the Clerk of the Court once an
obligor becomes delinquent.
§61.13016, Florida Statutes.

The obligor must file a petition to contest a notification that his or her
license is being suspended within 20 days of notification.
§61.13016(1)(c)(1)(c), Florida Statutes.

The court must hear the motion contesting the driver‟s license suspension
within 15 days of the filing of a motion. An order must be entered within 10
days of the hearing. §61.13016(2)(b), Florida Statutes.

The court must treat the sanction of a driver‟s license suspension in the
same manner as a contempt sanction for which the court must find a
present ability to pay any purge amount set. Larsen v. Larsen, 901 So. 2d
327 (Fla. 4th DCA 2005).
Writs


When either party is about to remove himself or his property out of the
state, or fraudulently convey or conceal it, the court may award a ne exeat
or injunction against the party or the property and make such orders as will
secure support to the party who should receive it. §61.11(1), Florida
Statutes.
The writ must include, at a minimum, information on the respondent‟s
physical description and location as is required for entry of the writ into the
Florida Crime Information Center telecommunications system. The writ shall
direct that service and execution of the writ may be made on any day of the
week and any time of the day or night. §61.11(2)(a), Florida Statutes.
81

The writ shall be enforceable in all counties of the state. §61.11(2)(c),
Florida Statutes.

Attachment or garnishment of the salary of the parent. §61.12, Florida
Statutes.

Denial or suspension of professional licenses or certificates. This suspension
process may be initiated by an obligee and covers all licenses issued
pursuant to Chapters 409, 455, 456, 559, and 1012, Florida Statutes.
§61.13015(1), Florida Statutes.
Some of the types of licenses or certificates that may be suspended:
o Family foster homes
o Child placing agencies
o Certified public accountants
o Real estate
o Teaching
o Physicians, including Osteopathic Doctors
o Nursing
o Pharmacist
o Collection agents

The party seeking enforcement must give notice of the delinquency to the
obligor that he or she is delinquent and that the obligor has 30 days in
which to pay the delinquency or to reach an agreement for payment of the
delinquency. This notice must provide that if payment is not made or an
agreement cannot be reached, the license or certificate may be denied or
suspended. §61.13015(2), Florida Statutes.

If the delinquency is not paid or an agreement is not reached within 30
days, a second notice must be sent giving the obligor 30 days to either pay
the delinquency or reach an agreement for payment of the delinquency. If
the obligor fails to respond to either notice or fails to pay the delinquency
or reach an agreement, the obligee may petition the court to deny the
application or suspend the license or certificate. §61.13015(3), Florida
Statutes.

The court may find that denial or suspension is inappropriate if:
82
o Irreparable harm would occur to the obligor or would not accomplish the
objective of a denial or a suspension; or
o The obligor demonstrates a good faith effort to reach an agreement with
the obligee. §61.13015(3)(a-b), Florida Statutes.
o The court may not deny or suspend a license if an alternative remedy
exists which would accomplish the objective of collecting a delinquency.
§61.13015(3), Florida Statutes.
o Lien on proceeds of lump sum workmen‟s compensation settlement.
§61.14 (8)(a), Florida Statutes.
o Civil Contempt: This procedure is to compel compliance with a court
order. The requirements for proceeding on a Motion for Civil Contempt
are:
 Filing of a motion.
 Actual notice to obligor. The notice must contain the following
language (in bold): FAILURE TO APPEAR AT THE HEARING MAY RESULT
IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR
ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48
HOURS BEFORE A HEARING IS HELD.
 Hearing.
Fla. Fam. L. R. P. 12.615(a-c).

When a court of competent jurisdiction enters an order for the payment of
child support, the court shall make a finding of the obligor's imputed or
actual present ability to comply with the order. If the obligor subsequently
fails to pay alimony or support and a contempt hearing is held, the original
order of the court creates a presumption that the obligor has the present
ability to pay the alimony or support and to purge himself or herself from
the contempt. At the contempt hearing, the obligor shall have the burden
of proof to show that he or she lacks the ability to purge himself or herself
from the contempt. The court shall state in its order the reasons for
granting or denying the contempt. §61.14(5)(a), Florida Statutes.

The requirements for a finding of indirect civil contempt after hearing the
evidence presented:
o The movant must show that a prior court order directed the party to pay
the support and that the party in default has failed to make the ordered
payments.
o The defaulting party must then dispel the presumption of ability to pay
by demonstrating that, due to circumstances beyond his control which
83
intervened since the time the order directing him to pay was entered,
he no longer has the ability to meet his support obligations.
o The court must then evaluate the evidence to determine whether it is
sufficient to justify a finding that the defaulting party has willfully
violated the court order.
o If the court finds that a civil contempt has occurred, it must determine
what alternatives are appropriate to obtain compliance with the court
order.
o If incarceration is appropriate, the court must make a separate,
affirmative finding that the contemnor possesses the present ability to
comply with the purge conditions set forth in the contempt order, and
may look at all assets from which the amount might be obtained.
Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).

Recommended orders from a hearing officer must contain detailed findings
of fact to support the recommendation. Gregory v. Rice, 727 So. 2d 251
(Fla. 1999).

The sanctions which may be imposed may include:
o Incarceration. The purpose of a civil contempt proceeding is to obtain
compliance with a court order. Because incarceration is utilized solely to
obtain compliance and not to punish, it must be used only when the
contemnor has the ability to comply. Bowen v. Bowen, 471 So. 2d 1274
(Fla. 1985).
 Note: There are no circumstances in which a parent is entitled to
court-appointed counsel in a civil contempt proceeding for failure to
pay child support because if the parent has the ability to pay, there
is no indigency, and if the parent is indigent, there is no threat of
imprisonment. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
However, see Turner v. Rodgers, 131 S.Ct. 2507 (2011), which holds
that although the due process clause does not automatically require
the state to provide counsel to indigent parents subject to a civil
contempt proceeding, certain safeguards should be required so that
the civil proceeding is fair. The state must have adequate procedural
safeguards that assure a fundamentally fair determination of whether
the noncustodial parent has the present ability to comply with the
contempt order. It noted that the following procedures, if employed
together, could significantly reduce the risk of an erroneous
deprivation of liberty: 1) notice to the defendant that his “ability to
84
pay” is a critical issue in the contempt proceeding; 2) the use of a
form (or the equivalent) to elicit relevant financial information; 3) an
opportunity at the hearing for the defendant to respond to
statements and questions about his financial status, (e.g., those
triggered by his responses on the form); and 4) an express finding by
the court that the defendant has the ability to pay.
o A purge must be reasonable. The Court may look at all the obligor‟s
assets to determine his or her ability to purge. Pompey v. Cochran, 685
So. 2d 1007 (Fla. 4th DCA 1997).

If obligor is unemployed or underemployed, the Court may order that he or
she:
o Seek employment;
o File periodic reports with the Court detailing the obligor‟s efforts to
obtain employment;
o Notify the Court that he or she has obtained employment, income or
property; or
o Participate in job training, job placement or other work programs
§61.14 (5)(b), Florida Statutes.

The Court may issue an Order for a writ of bodily attachment when an
obligor has been duly notified and fails or refuses to appear for a hearing.
Fla. Fam. L. R. P. 12.615 (c)(2)(b).
Direct Criminal Contempt: Criminal contempt proceedings are appropriate when the
party in default has continually and willfully neglected his support obligations, or
has affirmatively acted to divest himself of assets and property. This procedure is
used to punish the contemnor. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
The requirements for proceeding on a Motion for Indirect Criminal Contempt are:
 An affidavit based on personal knowledge, and
 An Order to Show Cause detailing all essential facts as to the criminal
contempt charge.
 Appointment of a public defender.
 Trial.
 If contemnor is found guilty, he or she must have an opportunity to present
mitigating circumstances.
Fla. R. Crim. Pr. 3.840.
85

The defendants in criminal proceedings are entitled to the same
constitutional due process protections afforded criminal defendants in more
typical criminal proceedings. Sando v. State, 972 So. 2d 271 (Fla. 4th DCA
2008).

Attorney‟s Fees
o After considering the financial resources of both parties, the court may
order a party to pay a reasonable amount for attorney‟s fees, suit
money, and the cost to the other party of maintaining or defending,
enforcing, or modifying child support and appeals.
o If a non compliant party is without justification for failing to follow a
court order, the court may not award attorney‟s fees, suit money, and
costs to the noncompliant party.
o No corroborating expert testimony is necessary.
o The trial court maintains continuing jurisdiction to make temporary
attorney‟s fees and costs awards reasonably necessary to prosecute or
defend an appeal.
o Fees may be assessed against the Department of Revenue pursuant to s.
57.105(1), Florida Statutes.
§61.16(1), Florida Statutes.
ADDITIONAL COLLECTION METHODS AVAILABLE SOLELY TO TITLE IV-D AGENCY
In addition to the above methods for enforcement and collection of child support,
the Title IV-D agency, designated in Florida as the Florida Department of Revenue,
has the following additional options to enforce and collect child support:
 Interception of unemployment compensation benefits. §443.051, Florida
Statutes.
 Interception of Federal Income Tax Refund. §409.2557(3)(j), Florida
Statutes; 42 U.S.C.A. § 654.
 Collection of Florida Lottery prize winnings §24.115(4), Florida Statutes.
 Denial, revocation, or limitation of United States Passport. §409.2557(3)(j),
Florida Statutes; 42 U.S.C.A. § 652. See also Dept. of Revenue v Walton, No,
1DO8-5625 (Fla. 1st DCA 2009) and Dept. of Revenue ex rel. Jackson v.
Nesbitt, 975 So. 2d 549 (Fla. 4th DCA 2008) (Trial court not authorized to
order Department of Revenue to remove passport restrictions).
Bank levies. §409.25656, Florida Statutes; 42 U.S.C.A. § 666.
 Credit reporting. §61.1354, Florida Statutes; 42 U.S.C.A. § 666.
 Interception of unclaimed property. §409.25658, Florida Statutes.
 Administrative offset of Federal vendor payments. 31 U.S.C.A. § 3716
86
87
VII. INTERSTATE AND INTERNATIONAL FULL FAITH AND
CREDIT
(Note: Chapter 88, Florida Statutes, has been amended to encompass UIFSA 2008 with
a future implementation date.)
III.
Full Faith and Credit




IV.
Federal law requires states to give full faith and credit to orders from other
states. U.S.C.A. Const. Art. 4, § 1.
In the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28
U.S.C. § 1738B (1994), Congress established national standards for
determining jurisdiction to issue a child support order and the effect courts
must give to orders from other states. Under this act, courts must enforce a
child support order from another state if it is consistent with FFCCSOA.
Also, a court cannot modify the order of another state unless the new state
has jurisdiction, and the issuing state must no longer have continuing
exclusive jurisdiction.
The court was required to enforce a child support provision of an Alabama
divorce decree which obligated the father to support an adult child while
child was in college, even though Florida courts do not award child support
to adult children. Elortegui v. Elortegui, 616 So. 2d 69 (Fla. 3d DCA 1993).
Judgments are only entitled to full faith and credit as to the individuals who
were parties to the other court‟s proceedings or who were given notice and
an opportunity to be heard. MacRai-Billewicz v. Billewicz, 67 So. 3d 226
(Fla. 2d DCA 2010).
The Uniform Interstate Family Support Act

The Uniform Interstate Family Support Act (UIFSA) was originally enacted in
1996 and addresses the complications found in enforcing child support
orders across state lines. Florida adopted UIFSA (1996) effective July 1,
1997, which was codified in Chapter 88, Florida Statutes. Unless otherwise
noted, the sections of Chapter 88 referenced in this section will take effect
upon the earlier of 90 days following Congress amending 42 U.S.C. s. 666(f)
to allow or require states to adopt the 2008 version of the Uniform
Interstate Family Support Act, or 90 days following the state obtaining a
waiver of its state plan requirement under Title IV-D of the Social Security
88
Act. UIFSA provides national uniform rules for the enforcement of family
support orders by:
o Addressing jurisdiction standards, including continuing exclusive
jurisdiction (CEJ).
o Establishing rules to determine which state has issued the controlling
order if proceedings have occurred in multiple jurisdictions.
o Providing rules for modification of other state‟s orders.
V. Jurisdiction

In a proceeding to establish or enforce a support order or to determine
parentage of a child, a tribunal of this state may exercise personal
jurisdiction over a nonresident individual or the individual's guardian or
conservator if:
o The individual is personally served with citation, summons, or notice
within this state;
o The individual submits to the jurisdiction of this state by consent in a
record, by entering a general appearance, or by filing a responsive
document having the effect of waiving any contest to personal
jurisdiction;
o The individual resided with the child in this state;
o The individual resided in this state and provided prenatal expenses or
support for the child;
o The child resides in this state as a result of the acts or directives of
the individual;
o The individual engaged in sexual intercourse in this state and the
child may have been conceived by that act of intercourse;
o The individual asserted parentage of a child in a tribunal or in a
putative father registry maintained in this state by the appropriate
agency; or
o There is any other basis consistent with the constitutions of this state
and the United States for the exercise of personal jurisdiction.
§88.2011, Florida Statutes.

Personal jurisdiction in a proceeding relating to a support order continues
as long as a tribunal of this state has continuing, exclusive jurisdiction to
modify its order or continuing jurisdiction to enforce its order. §88.2021,
Florida Statutes.

A tribunal may exercise jurisdiction to establish a support order if the
petition or comparable pleading is filed after a petition or comparable
pleading is filed in another state or a foreign country only if:
o The petition or comparable pleading in this state is filed before the
expiration of the time allowed in the other state or the foreign
89
country for filing a responsive pleading challenging the exercise of
jurisdiction by the other state or the foreign country;
o The contesting party timely challenges the exercise of jurisdiction in
the other state or the foreign country; and
o If relevant, this state is the home state of the child.
§88.2041(1), Florida Statutes.

A tribunal of this state may not exercise jurisdiction to establish a support
order if the petition or comparable pleading is filed before a petition or
comparable pleading is filed in another state or a foreign country if:
o The petition or comparable pleading in the other state or the foreign
country is filed before the expiration of the time allowed in this state
for filing a responsive pleading challenging the exercise of
jurisdiction by this state;
o The contesting party timely challenges the exercise of jurisdiction in
this state; and
o If relevant, the other state or the foreign country is the home state
of the child.
§88.2041(2), Florida Statutes.

A tribunal of this state that has issued a child support order consistent
with the law of this state has and shall exercise continuing, exclusive
jurisdiction to modify its child support order if the order is the controlling
order and:
o At the time of the filing of a request for modification, this state is
the residence of the obligor, the individual obligee, or the child for
whose benefit the support order is issued; or
o Even if this state is not the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is issued,
the parties consent in a record or in open court that the tribunal of
this state may continue to exercise jurisdiction to modify its order.
§88.2051(1), Florida Statutes.

A tribunal of this state that has issued a child support order consistent
with the law of this state may not exercise continuing, exclusive
jurisdiction to modify the order if:
o All of the parties who are individuals file consent in a record with the
tribunal of this state that a tribunal of another state that has
jurisdiction over at least one of the parties who is an individual or
that is located in the state of residence of the child may modify the
order and assume continuing, exclusive jurisdiction; or
o Its order is not the controlling order.
§88.2051(2), Florida Statutes.
90

If a tribunal of another state has issued a child support order pursuant to
this act or a law substantially similar to this act which modifies a child
support order of a tribunal of this state, tribunals of this state shall
recognize the continuing, exclusive jurisdiction of the tribunal of the other
state. §88.2051(3), Florida Statutes.

A tribunal of this state that lacks continuing, exclusive jurisdiction to
modify a child support order may serve as an initiating tribunal to request
a tribunal of another state to modify a support order issued in that state.
§88.2051(4), Florida Statutes.

A temporary support order issued ex parte or pending resolution of a
jurisdictional conflict does not create continuing exclusive jurisdiction in
the issuing tribunal. §88.2051(5), Florida Statutes.

A tribunal of this state that has issued a child support order consistent
with the law of this state may serve as an initiating tribunal to request a
tribunal of another state to enforce:
o The order if the order is the controlling order and has not been
modified by a tribunal of another state that assumed jurisdiction
pursuant to the Uniform Interstate Family Support Act; or
o A money judgment for arrears of support and interest on the order
accrued before a determination that an order of a tribunal of another
state is the controlling order.
o §88.2061(1), Florida Statutes.

A tribunal of this state having continuing jurisdiction over a support order
may act as a responding tribunal to enforce the order. §88.2061(2),
Florida Statutes.

If a proceeding is brought under this act and only one tribunal has issued a
child support order, the order of that tribunal controls and must be
recognized. §88.2071(1), Florida Statutes.

If a proceeding is brought under this act, and two or more child support
orders have been issued by tribunals of this state, another state, or a
foreign country with regard to the same obligor and the same child, a
tribunal of this state having personal jurisdiction over both the obligor and
individual obligee shall apply the following rules and by order shall
determine which order controls and must be recognized :
o If only one of the tribunals would have continuing, exclusive
jurisdiction under this act, the order of that tribunal controls.
91
o If more than one of the tribunals would have continuing, exclusive
jurisdiction under this act:
 An order issued by a tribunal in the current home state of the
child controls; or
 If an order has not been issued in the current home state of
the child, the order most recently issued controls.
o If none of the tribunals would have continuing, exclusive jurisdiction
under this act, the tribunal of this state shall issue a child support
order, which controls.
§88.2071(2), Florida Statutes.

If two or more child support orders have been issued for the same obligor
and the same child, upon request of a party who is an individual or that is
a support enforcement agency, a tribunal of this state having personal
jurisdiction over both the obligor and the obligee who is an individual shall
determine which order controls under subsection (2). The request may be
filed with a registration for enforcement or registration for modification
pursuant to part VI of this chapter, or may be filed as a separate
proceeding. §88.2071(3), Florida Statutes.

A request to determine which is the controlling order must be
accompanied by a copy of every child support order in effect and the
applicable record of payments. The requesting party shall give notice of
the request to each party whose rights may be affected by the
determination. §88.2071(4), Florida Statutes.

The tribunal that issued the controlling order under subsection (1),
subsection (2), or subsection (3) has continuing jurisdiction to the extent
provided in s. 88.2051 or s. 88.2061. §88.2071(5), Florida Statutes.

A tribunal of this state that determines by order which is the controlling
order under paragraph (2)(a), paragraph (2)(b), or subsection (3) or that
issues a new controlling order under paragraph (2)(c) shall state in that
order:
o The basis upon which the tribunal made its determination;
o The amount of prospective support, if any; and
o The total amount of consolidated arrears and accrued interest, if
any, under all of the orders after all payments made are credited as
provided by s. 88.2091.
§88.2071(6), Florida Statutes.

Within 30 days after issuance of an order determining which is the
controlling order, the party obtaining the order shall file a certified copy
of it in each tribunal that issued or registered an earlier order of child
support. A party or support enforcement agency obtaining the order that
92
fails to file a certified copy is subject to appropriate sanctions by a
tribunal in which the issue of failure to file arises. The failure to file does
not affect the validity or enforceability of the controlling order.
§88.2071(7), Florida Statutes.

An order that has been determined to be the controlling order, or a
judgment for consolidated arrears of support and interest, if any, made
pursuant to this section must be recognized in proceedings under this act.
§88.2071(8), Florida Statutes.
VI. Petition to establish support order/temporary orders

If a support order entitled to recognition under this act has not been
issued, a responding tribunal of this state with personal jurisdiction over
the parties may issue a support order if:
o The individual seeking the order resides outside this state; or
o The support enforcement agency seeking the order is located outside
this state.
§88.4011(1), Florida Statutes.

The tribunal may issue a temporary child support order if the tribunal
determines that such an order is appropriate and the individual ordered to
pay is:
o
o
o
o
o
o
o
o

A presumed father of the child;
Petitioning to have his paternity adjudicated;
Identified as the father of the child through genetic testing;
An alleged father who has declined to submit to genetic testing;
Shown by clear and convincing evidence to be the father of the child;
An acknowledged father
The mother of the child; or
An individual who has been ordered to pay child support in a
previous proceeding and the order has not been reversed or vacated.
§88.4011(2), Florida Statutes.
Upon finding, after notice and opportunity to be heard, that an obligor
owes a duty of support, the tribunal shall issue a support order directed to
the obligor and may issue other orders pursuant to §88.3051, Florida
Statutes. §88.4011(3), Florida Statutes.
93
VII. Direct Enforcement of Order from another State without Registration

An income-withholding order issued in another state may be sent to the
person or entity defined as the obligor's employer under Florida‟s income
deduction law or payor without first filing a petition or comparable
pleading or registering the order with a tribunal of this state. §88.5011,
Florida Statutes.

An employer who willfully fails to comply with an income-withholding
order issued by another state and received for enforcement is subject to
the same penalties that may be imposed for noncompliance with an order
issued by a tribunal of this state. §88.5051, Florida Statutes.

An obligor may contest the validity or enforcement of an incomewithholding order issued in another state and received directly by an
employer in this state in the same manner as if the order had been issued
by a tribunal of this state. The obligor shall give notice of the contest to:
o A support enforcement agency providing services to the obligee;
o Each employer that has directly received an income-withholding
order; and
o The person or agency designated to receive payments in the incomewithholding order, or if no person or agency is designated, to the
obligee.
§88.5061, Florida Statutes.
VIII. Registration for Enforcement

A support order or an income-withholding order issued in another state or
a foreign support order may be registered in this state for enforcement.
§88.6011, Florida Statutes.

The registering tribunal must send notice to the non-registering party
accompanied by a copy of the registered order. §88.6051, Florida Statutes.
Service of process is not required. Department of Revenue v. Cuevas, 862
So. 2d 810 (Fla. 4th DCA 2003). The registration is complete upon filing. If
no contest is filed within 20 days after notice of registration, the order is
confirmed by operation of law.

A support order or income-withholding order issued in another state or a
foreign support order is registered when the order is filed in the
registering tribunal of this state. §88.6031(1), Florida Statutes.
94

A registered support order issued in another state or a foreign country is
enforceable in the same manner and is subject to the same procedures as
an order issued by a tribunal of this state. §88.6031(2), Florida Statutes.

Except as otherwise provided in this act, a tribunal of this state shall
recognize and enforce, but may not modify, a registered support order if
the issuing tribunal had jurisdiction. §88.6031(3), Florida Statutes.

A party contesting the validity or enforcement of a registered support
order or seeking to vacate the registration has the burden of proving one
or more of the following defenses:
o The issuing tribunal lacked personal jurisdiction over the contesting
party;
o The order was obtained by fraud;
o The order has been vacated, suspended, or modified by a later order;
o The issuing tribunal has stayed the order pending appeal;
o There is a defense under the law of this state to the remedy sought;
o Full or partial payment has been made;
o The statute of limitation under s. 88.6041 precludes enforcement of
some or all of the alleged arrearages; or
o The alleged controlling order is not the controlling order.
§88.6071(1), Florida Statutes.
IX. Modification

A party or support enforcement agency seeking to modify, or to modify
and enforce, a child support order issued in another state shall register
that order in this state in the same manner provided in §§88.601188.6081 if the order has not been registered. A petition for modification
may be filed at the same time as a request for registration, or later. The
pleading must specify the grounds for modification. §88.6091, Florida
Statutes.

If §88.6131 does not apply, upon petition, a tribunal of this state may
modify a child support order issued in another state which is registered
in this state if, after notice and hearing, the tribunal finds that:
o The following requirements are met:
 1. Neither the child, nor the obligee who is an individual, nor the
obligor resides in the issuing state;
 2. A petitioner who is a nonresident of this state seeks
modification; and
95
3. The respondent is subject to the personal jurisdiction of the
tribunal of this state; or
o This state is the state of residence of the child, or a party who is an
individual, is subject to the personal jurisdiction of the tribunal of
this state and all of the parties who are individuals have filed
consents in a record in the issuing tribunal for a tribunal of this state
to modify the support order and assume continuing exclusive
jurisdiction.
§88.6111(1), Florida Statutes.


Modification of a registered child support order is subject to the same
requirements, procedures, and defenses that apply to the modification
of an order issued by a tribunal of this state and the order may be
enforced and satisfied in the same manner. §88.6111(2), Florida
Statutes.

A tribunal of this state may not modify any aspect of a child support
order that may not be modified under the law of the issuing state,
including the duration of the obligation of support. If two or more
tribunals have issued child support orders for the same obligor and same
child, the order that controls and must be so recognized under §88.2071
establishes the aspects of the support order which are non-modifiable.
§88.6111(3), Florida Statutes.

In a proceeding to modify a child support order, the law of the state that
is determined to have issued the initial controlling order governs the
duration of the obligation of support. The obligor's fulfillment of the
duty of support established by that order precludes imposition of a
further obligation of support by a tribunal of this state. §88.6111(4),
Florida Statutes.

On issuance of an order by a tribunal of this state modifying a child
support order issued in another state, the tribunal of this state becomes
the tribunal of continuing exclusive jurisdiction. §88.6111(5), Florida
Statutes.

Notwithstanding subsections (1)-(5) and §88.2011(2), a tribunal of this
state retains jurisdiction to modify an order issued by a tribunal of this
state if:
o One party resides in another state; and
o The other party resides outside the United States.
§88.6111(6), Florida Statutes.
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VIII. MODIFICATION OF CHILD SUPPORT ORDERS
Note: the Florida Bar Continuing Legal Education Department has an excellent chapter
on modification of child support that has been included in this Benchbook. See tab 2.
A.
B.
Generally
 At any time, any party, including the IV-D agency, may apply to the court
to:
o Modify, suspend, or terminate the income deduction order in accordance
with a modification, suspension, or termination of the support provisions
in the underlying order; or
o Modify the amount of income deducted when the arrearage has been
paid. §61.1301(1)(g), Florida Statutes.

Pursuant to §61.13(1)(a), Florida Statutes, child support payments may be
modified when in the best interests of the child, when the child reaches
majority, or when there is a substantial change in the circumstances of the
parties.

The change in circumstances must be significant, material, involuntary, and
permanent in nature. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA 1996);
Bunassar v. Diaz, 804 So. 2d 487 (Fla. 3d DCA 2001).

When the amount of child support is based upon an agreement by the
parties, a heavier burden rests upon the party seeking a modification than
would otherwise be required. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA
1996).

A parent‟s failure to regularly exercise the court-ordered or agreed timesharing schedule not caused by the other parent shall be deemed a
substantial change of circumstances for purposes of modifying the child
support award. A modification is retroactive to the date the noncustodial
parent first failed to regularly exercise the court-ordered or agreed timesharing schedule. §61.30(11)(c), Florida Statutes.
Change of circumstance
 Party seeking modification of child support payments has burden of showing
the change in circumstances. Hand v. Kushmer, 673 So. 2d 926 (Fla 2d DCA
1996).
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
C.
Temporary modification due to military service. If a temporary order is
issued, the court may address the issue of support by:
o Entering an order of temporary support from the service member to the
other parent;
o Requiring the service member to enroll the child as a military dependent
with DEERs, TriCare, or other similar benefits available to military
dependents as provided by the service member‟s branch of service; or
o Suspending, abating, or reducing the child support obligation of the nonservice member until the custody judgment or time-share order
previously in effect is reinstated. §61.13002(6), Florida Statutes.
Streamlined judicial modification upon Department of Revenue agency
review. §409.2564(11), Florida Statutes.

The Department of Revenue is mandated in §409.2564(11)(a), Florida
Statutes, to review child support orders in IV-D cases at least once every 3
years when requested by either party, or when support rights are assigned
to the state. The Department of Revenue may seek modification of the
order if appropriate.

If the Department of Revenue seeks to modify the order, the department
shall file:
o a petition
o a child support guideline worksheet
o any financial affidavits
o a proposed modified order that includes findings as to the source and
amount of income
o a notice that informs the parties of the requirement to file an objection
or a request for hearing with the court if the party wants a court hearing
on the petition to modify. §409.2564(11)(b), Florida Statutes.

If a party wishes to obtain a court hearing on a petition to modify a support
order, a party who is served by regular mail must file an objection to the
proposed order or a request for hearing with the court within 30 days after
the date on which the petition, proposed order, and other documents were
mailed. §409.2564(11)(c), Florida Statutes.

If a party is served personally, to obtain a court hearing on a petition to
modify the party must file an objection to the proposed order or a request
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for hearing with the court within 30 days after the date of receipt of the
petition, proposed order, and other documents. §409.2564(11)(c), Florida
Statutes.

If a timely objection or request for hearing is not filed with the court, the
court may modify the support order without a hearing in accordance with
the terms of the proposed order. §409.2564(11)(d), Florida Statutes.

If a support order does not provide for payment of non-covered medical
expenses or require health insurance for the minor child and health
insurance is accessible and available at a reasonable cost, the Department
of Revenue shall seek to have the order modified. Any modification shall be
made without a requirement for proof or showing of a change in
circumstances. §409.2564(11)(e), Florida Statutes.
Appeals:
 Appellate courts use the abuse of discretion standard when reviewing a trial
court‟s order in a child support modification proceeding. Martland v.
Arabia, 987 So. 2d 118 (Fla. 4th DCA 2008).
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IX.
A.
CHILD SUPPORT IN TITLE IV-D CASES
Generally

Public assistance monies received by a custodian on behalf of a child is not
free money, but money that has to be paid back to the state by the parents
of the child, who bear the primary legal burden of supporting their children.
Any payment of temporary cash or Title IV-E assistance made to, or for the
benefit of, any dependent child creates an obligation in an amount
determined pursuant to the child support guidelines. §409.2561(1), Florida
Statutes.

Once a custodian receives state public assistance benefits on behalf of the
child(ren) because of a lack of direct viable financial support from the
mother or father, the custodian subrogates their rights to collecting child
support to the State of Florida through the Department of Revenue which
establishes and enforces a child support obligation. The state shall retain
amounts collected only to the extent necessary to reimburse amounts paid
to the family as assistance by the state. §409.2561(1), Florida Statutes.

If there has been a prior support order or final judgment of dissolution of
marriage establishing an obligation of support, the obligation is limited to
the amount provided by such support order or decree. §409.2561(1), Florida
Statutes.

Any payment of public assistance money made on behalf of any dependent
child creates an obligation in an amount equal to the amount of public
assistance paid. If there is no prior court order establishing an obligation of
support, the court shall establish the liability of the obligor for payment of
public assistance monies by applying the child support guidelines in §61.30
for the public assistance period. Dept. of Revenue v. Nelson, 717 So. 2d 201
(Fla. 5th DCA 1998).

Arrearages/Reimbursement - As to the award of retroactive
support/arrears, while the actual child support arrears can only relate back
to the filing date of the support petition, any portion of the retroactive
award which is reimbursement to the state for public assistance funds under
§409.234 can embody expenditures for public assistance which pre-date the
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filing of the petition. Gherardi v. Gherardi, 712 So. 2d 1236 (Fla. 4th DCA
1998).
o The parent cannot waive all arrears when the Department of Revenue is
a party and public assistance was paid to the parent. In this case, the
Department of Revenue was also not noticed or made a party to the
stipulation between the mother and the father. Dept. of Revenue v.
Pericola, 662 So. 2d 386 (Fla. 5th DCA 1995).

No retroactive reimbursement during parent‟s incarceration. The state‟s
subrogation rights are no greater than the parent‟s. Since the father could
not support the children during a period of incarceration, the state was not
entitled to reimbursement of AFDC assistance funds paid to the mother
during his period of incarceration. Under the facts of this case, the mother
and children could not have obtained support from the father during
imprisonment because he was unable to provide for them financially. H.R.S.
v. Hatfield, 522 So. 2d 61 (Fla. 2d DCA 1988). However, recent case law
holds that a parent facing incarceration can be ordered to pay support and
the arrears will accumulate during the incarceration. See McCall v. Martin,
34 So. 3d 121 (Fla. 4th DCA 2010).

Limitation on amount that can be reimbursed. The reimbursable obligation
of the father is limited to the amount he could have paid. The
reimbursement may be less than the actual public assistance paid if the
father is indigent. D.H.S. v. Huffman, 332 S.E. 2d 866 (Va. SCT 1985).

By accepting temporary cash assistance or Title IV-E assistance, the
recipient assigns to the Department of Revenue any right, title, and interest
to support the recipient may be owed. §409.2561(2)(a), Florida Statutes.

Note: If the parents of the child were actually providing regular monthly
financial support for their child to the actual custodian of the child, then
the custodian would not have the need to secure public assistance from the
state to help support the child.

Likewise, the occasional situation will arise, after hearing evidence and
testimony in the court proceeding, where the custodian of the child is
committing public assistance “fraud” by not actually meeting the legal
requirements for receipt of public assistance monies from the state (i.e. the
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child is not actually in their physical custody, or, there is actually an
“intact” family but the custodian is receiving public assistance by stating in
the request paperwork for public assistance that there is no intact family).
You will have to address these potential issues as they may come up on a
case-by-case basis.
B.
C.
Cases Involving the Parents

The most typical action brought by the Department of Revenue related to
public assistance issues involves an enforcement action, a Petition for
Support, or a Paternity Complaint on behalf of the Parent/Custodian of the
child who is receiving public assistance of some kind (food stamps/monthly
cash assistance/Medicaid) from the state based upon their reporting that
the non-custodial parent is not financially supporting the child and not
living in the same household.

On occasion, you will have a case where the mother and father are both
present in court and the mother is stating to the court that she does not
want to place the father on child support because he “helps” on a regular
basis with the child(ren); the father is likewise stating that he pays the
mother some monies from time to time, visits and exercises agreed-upon
visitation, and that he always provides other support or necessities for the
child(ren) when he can. The salient issue that can arise in this scenario is
the mother is receiving public assistance on behalf of the child(ren) and
that establishment of a child support obligation from the father must be
pursued under applicable law unless the mother gives up certain public
assistance entitlements.

If the mother does decide to “opt” out of the public assistance system, the
father would still be financially liable for any previous public assistance
paid out to the mother on behalf of the child and a reasonable monthly
payment plan would have to be agreed upon, or court ordered, between the
father and the Department of Revenue.
Cases Involving Third-Party Custodians and the Parents

Another typical public assistance scenario arises when the department filed
actions for child support against the mother or father, and the minor child
is being raised/housed by a third-party custodian who is receiving public
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assistance to help them financially support the child. The parent must
reimburse the state for the public assistance expenditure. The three most
typical scenarios are:
o where there is a relative custody order in place for the child under a
Chapter 751 proceeding awarding a third-party legal custody of the child
to the third-party custodian.
o where there is/has been a Department of Children and Families
dependency case under Chapter 39 involving child abuse or neglect and
there is a court order giving that third-party custodian legal custody of
the child. Please note that the custody in these cases may be temporary
while the parent completes a case plan for return of their children to
their physical custody or may be permanent if the parent failed to
complete a case plan and the dependency court “closed” the case with
the child in the formal legal custody of the third-party custodian.
 Note that in many of these cases, the third-party custodian
is often receiving monthly “Relative Caregiver Funds”
which is a form of public assistance (a monthly cash
subsidy) to help raise the child. In these cases, the parents
of the child are financially responsible for reimbursing the
state for the monies being paid to the third-party
custodian.
o where there is no formal legal custody order giving the third-party
“custody” of the child but there is an informal agreement to have the
third-party custodian raise the children because of incapacity or inability
of the parent to raise and provide for the child financially themselves
due to incarceration or substance abuse issues, for example.

There are many times in court on these third-party custodian child support
cases when the parties, who may not understand the legal requirements of
PA cases, raise the following issues:
o Legal custody. The court should explain to the parties that while the
parent may be living in the home with the custodian or actively involved
in the child‟s life, they may not have “legal” custody of the child. If the
custodian is the party receiving public assistance on behalf of the child,
the parent is still responsible for the payment of child support to the
state.
o Action against the other parent. The department may often file a
separate action against each parent, but the court only has jurisdiction
over the case at bar.
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o IV-D lawyers represent the department and not either party to a case so
they can appear to establish and enforce support against the obligor and
then appear in the same case to argue for a downward modification
which benefits the obligor. Dept. of Revenue v. Collingwood, 43 So. 3d
952 (Fla. 1st DCA 2010).
o The department has to follow federal requirements in federal income
tax intercept and passport cases, which are administrative, and the
circuit court has no jurisdiction to order the department to lift the
federal passport restrictions or limit the department's income tax
intercepts.
o A court cannot retrospectively modify an administrative support order.
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X.
CHILD SUPPORT IN DEPENDENCY CASES
The Department of Children and Families (DCF) is the state agency responsible for
litigation of child dependency cases. §39.01(21), Florida Statutes. The Department of
Revenue is charged with enforcing support orders obtained in dependency proceedings
for children adjudicated to be dependent. §39.521(1)(d)7, Florida Statutes.
A. Dependency Child Support Checklist
At the Initial Dependency Hearing:
 Determine whether or not paternity has been previously established.
Methods for determining paternity include:
o The parent has voluntarily signed a sworn paternity affidavit,
o The father is named on the child‟s birth certificate,
o The child was conceived and born while the mother was married,
o The putative father is discovered through DNA testing, and/or
o Paternity is established by a court or administrative proceeding.
 If paternity has not been established:
o Have parent swear under oath that he/she is the parent and adjudicate
him/her as the parent or,
o Order a DNA test.
 Verify whether or not child support has already been established.
 If it has, transfer it to the dependency court for enforcement and
compliance monitoring.
 If it has not, proceed with ordering child support in current case.
 Set the paternity/child support hearing in conjunction with the next
dependency hearing.
 Confirm the order includes:
o Notice that paternity and child support will be established at the next
hearing,
o A requirement that the parents provide the financial information needed
to determine child support within 28 days to the court and to DCF, and
o An order for a DNA test, if necessary.
At the Subsequent Paternity/Child Support Hearing (ideally in conjunction with the
subsequent dependency hearing):
 Establish paternity, if not already done, and adjudicate the mother/father
as the parent of the child.
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

Determine and set child support.
Include the following in the child support order:
o Amount of child support to be paid and to whom,
o A provision for health insurance and non-covered medical expenses,
o Income deduction and State Disbursement Unit information,
o The full name and date of birth of each minor child, and
o When the first payment is due and where it should be sent.
Follow-up and Compliance options.
 The obligee or their attorney may initiate contempt.
 The court can hold a compliance review hearing:
o Review hearings can occur in conjunction with judicial review or other
regularly scheduled dependency hearings, if properly noticed.
 The respondent must provide proof of payment or that he/she lacks the
ability to pay.
 If the respondent fails to provide proof of payment the court can:
o Order the parent to seek employment or job training;
o Issue an order to show cause. Offending parent can be found in civil
contempt and jailed up to 179 days;
 Contempt order must contain a purge amount.
 Contemnor must have the ability to pay the purge amount.
o Issue a writ of attachment;
o Garnish the salary of the parent;
o Suspend the driver‟s license and motor vehicle registration; and/or
o Allow the Department of Revenue to seek other enforcement options.
Modification and Termination.
 Child support payments can be modified when:
o The modification is found necessary by the court and is in the best
interests of the child,
o When the child reaches 18 years of age, or
o When there is a substantial change in the circumstances of the parties.
 If modifications occur, the court should require the clerk‟s office to notify
the State Disbursement Unit of the changes.
 If an Income Deduction Order is facilitating payment, the court should enter
an Order to Vacate and require that a copy be sent by the clerk to the
employer and the State Disbursement Unit.
 Upon closure of the dependency case, advise the parents that:
109
o If they need help with enforcement, the case can be transferred to
family court and they or counsel can proceed with enforcement, but the
case will receive a new case number, and
o Filing fees may be assessed.
B. Model for Child Support in Dependency Cases
Introduction
This model serves as suggested guidelines for how child support should be handled in
dependency cases. Its purpose is to provide guidance on issues related to child
support in dependency proceedings so that Florida‟s children receive the financial
support they need. According to the principles of unified family court as described
in In re Report of Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001), the
best practice is to handle the child support matter before the same judge hearing
the dependency case to avoid conflicting orders and multiple court appearances by
the parties, as well as to increase efficiency and wisely utilize court resources.
The Process
Initial Hearing: At the shelter hearing (or the arraignment hearing if there is not a
shelter hearing), the court should:

Determine whether or not paternity has ever been established for the child.
Methods for determining paternity: (Chapters 742, 382, Florida Statutes)
o The parent has voluntarily signed a sworn paternity affidavit. §742.10(4),
Florida Statutes. Other forms of voluntary acknowledgement are
permitted under §742.10(1) Florida Statutes. Also, paternity may have
been established judicially or voluntarily in another state. See §742.105,
Florida Statutes.
o The father is named on the child‟s birth certificate. The father must
have signed a paternity affidavit before his name was put on the birth
certificate. §382.013(2)(c), Florida Statutes.
o If the mother was married when the child was conceived and born, the
husband is considered the legal father of the child. §742.11,
382.013(2)(a), Florida Statutes.
o The putative father is found to be the biological father through genetic
testing. §742.12, Florida Statutes.
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o Paternity is established by a court of competent jurisdiction under
§382.015, Florida Statutes, or determined through administrative
proceedings under §409.256, Florida Statutes. The judge may access the
JIS system to verify previous court orders.
o If paternity has not been established, have parent swear under oath that
he/she is the parent of the child and adjudicate him/her as the parent,
or order a DNA test for the father if he is contesting paternity.
§§742.10(4), 742.12(1), Florida Statutes. Payment for the DNA testing is
governed by §742.12(7), Florida Statutes.

Verify whether or not child support has already been established in another
court or under the Title IV-D process in which the Department of Revenue is
a party. If it has, transfer it to the dependency court. Rule 8.205(a) allows
child support cases to be transferred and handled in dependency court. If it
has not, proceed with ordering child support in current case.
§39.402(11)(a), Florida Statutes.
o A support order or an income-withholding order issued by a tribunal of
another state may be registered in this state for enforcement. §80.6011,
Florida Statutes.

Set the next child support hearing in conjunction with the next regularly
scheduled dependency hearing. §39.402(16), Florida Statutes.

The initial shelter order should:
o Give the putative father and all other parties notice of the proceeding to
establish paternity and child support at the next hearing. §§409.256(4),
742.021, Florida Statutes.
o Require the parents to provide to DCF and the court the financial
information necessary to accurately calculate child support within 28
days. §39.402(11)(a), Florida Statutes. The court should require that all
parties fill out the financial affidavits and other forms before the next
hearing to save time. (See “e” below.)
o Order a DNA test to establish paternity, if needed. §742.12(1), Florida
Statutes. Payment for the DNA testing is governed by §§742.12(7),
742.18(7)(c), Florida Statutes.
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
Forms parent must fill out to receive child support (Courts could request
that the clerk have these forms and any Department of Revenue application
forms available for the litigants.):
o Family Law Financial Affidavit, Fla. Fam. L. R. P. Form 12.902(b) or (c).
o Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).
o Child Support Guidelines Worksheet, Fla. Fam. L. R. P. Form 12.902(e).
o Notice of Social Security Number, Florida Supreme Court Approved
Family Law Form 12.902(j).
o Notice of Related Case Form. Florida Rule of Judicial Administration
2.085(d).
o In addition to the required forms, it will be helpful if the parent lists
such information as the other parent‟s place of employment, pay stub
information, a W-2 form, or a recent tax return. If the parent does not
know this information but can obtain it and bring it to the hearing,
advise him or her to do so.
At the Paternity/Child Support Hearing:

Establish paternity, if not already done, and adjudicate the father as the
parent of the child. Once paternity is established, the birth record needs to
be updated at the Office of Vital Statistics to appropriately record the
establishment of paternity. The CLS attorney should complete the top
portion of the Department of Health form DH673 using information from the
birth record. Next, a certified copy of the paternity adjudication with the
father's name should be provided to the Clerk of the Court who then
submits the record to the Office of Vital Statistics. A separate paternity
order should be used for this purpose to ensure dependency information is
kept confidential. The birth record is then updated with the father's name
and the official record shows that paternity is no longer an issue. Florida
Supreme Court Approved Family Law Form 12.983(g) Final Judgment of
Paternity can be used for this purpose.
o If a party still disputes paternity, they may request a jury trial. B.J.Y. v.
M.A., 617 So. 2d 1061 (Fla. 1993).
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NOTE: The 3rd DCA recently held that the trial court has no jurisdiction to
determine a disputed issue of paternity in a dependency proceeding under Chapter
39 in N.D. v DCFS, 32 Fla L. Weekly D1737b (Fla. 3rd DCA 2007); however, several
other districts disagree. [See: T.J. v. Department of Children and Families, 860 So.
2d 517 (Fla. 4th DCA 2003) (Trial court erred in not applying clear and convincing
standard to paternity evidence as required in §§ 742.031, 742.10(1), Florida
Statutes); In Interest of J.M., 499 So. 2d 929 (Fla. 1st DCA 1986) (A circuit court has
inherent and continuing jurisdiction to entertain matters pertaining to child custody
and to enter any order appropriate to a child's welfare.); Dept. of Revenue v.
Yambert, 883 So. 2d 881(Fla. 5th DCA 2004) (Department of Revenue was forced to
establish paternity and child support obligation when dependency court had ordered
DNA testing but failed to issue an order adjudicating paternity.); In re S.M., 874 So.
2d 720 (Fla. 2nd DCA 2004) (Circuit court erred in ordering E.K., an out-of-state
resident with absolutely no connections to Florida, to submit to paternity testing
before moving forward with the dependency action. The paternity action must occur
in the state having personal jurisdiction over the parent.)] Also, §39.521(1)(d)(7)
states: “The court may exercise jurisdiction over all child support matters, shall
adjudicate the financial obligation, including health insurance, of the child‟s
parents or guardian, and shall enforce the financial obligation as provided in chapter
61.”
Set child support
 Child support is based on the parent‟s net monthly income. The child
support guideline amount chart is found in §61.30, Florida Statutes. The
court can vary from the amount prescribed in this chart by 5% after
considering all relevant factors including the needs of the child, age, station
in life, standard of living, and financial status and ability of each parent. If
they do vary by more than 5%, they must have a written finding justifying
the variance in the order. §61.30(1)(a), Florida Statutes.

If the child will spend a substantial amount of time with each parent, the
amount of child support should be adjusted accordingly. See §61.30(1)(a)
and §61.30(11)(b), Florida Statutes. If financial affidavits are filled out
before court by both parties, it will save court time. Child support can be
calculated by using FinPlan, Divorce Power Analyzer, or similar software.
The amount can also be calculated manually by using the Child Support
Guidelines Worksheet, Fla. Fam. L. R. P. 12.902(e).
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
The judge should explain the following to both parties when ordering child
support:
o This is permanent child support. The order for child support will only
end when the child turns 18 or if it is modified by the court. §61.14,
Florida Statutes. (Exception: §743.07(2), Florida Statutes, provides that
dependent children can continue to receive support when the
dependency is based upon mental or physical incapacity which began
prior to the child reaching the age of majority, or if the person is
between ages 18-19 and is still in high school, performing in good faith
with a reasonable expectation of graduation before the age of 19.)
o It is the parent‟s/guardian‟s responsibility to notify their attorney or
case manager if payments are not made. The attorney or case manager
must report this information to the court.
o The court‟s options for enforcing the child support order (order to show
cause, contempt. See generally §§ 61.16, 61.17, Florida Statutes; Rule
8.285; and section 2(c)below of this document.).
o The responsibilities of the petitioner and respondent to notify the court
if the award needs to be modified due to a change in circumstance.
§61.14(1)(a), Florida Statutes.

An order separate from the dependency hearing order should be written by
the parent‟s attorney or the Children‟s Legal Services attorney, once
paternity is established and should include:
o The amount of child support to be paid and to whom.
o A provision for health care insurance if it is reasonable in cost and
accessible to the child.
o The court may also order retroactive child support. See §61.30(17),
Florida Statutes.
o A provision for payment of non-covered medical expenses.
o Income Deduction Orders are the preferred method for collecting child
support payments and should be ordered whenever possible. §61.1301,
Florida Statutes. The obligee or his/her agent should serve the Income
Deduction Order on the obligor‟s employer within two business days by
certified mail. §61.1301(2)(b)(2), Florida Statutes. The amount of time it
takes for the obligee to receive payment varies greatly depending on the
employer and payroll procedures, therefore, the judge should consider
alternative payment methods for the initial payment or payments.
o In cases in which support has already been established under Title IV-D
where the Department of Revenue is a party, and in all other types of
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family law cases utilizing an income deduction order, the judge shall
order child support payments to be made through the State
Disbursement Unit pursuant to §61.181, Florida Statutes. Income
deduction orders should be used whenever possible; however, if
payments are not being made by income deduction order, the judge
shall order that child support be paid through the depository unless both
parties request and the court finds that direct payments are in the best
interest of the child pursuant to §61.13(1)(d), Florida Statutes. Direct
payments to the parent or caretaker should be avoided as this may
increase the likelihood of disputes as to what was or was not actually
paid.
o In non IV-E cases, the child support money should be sent to DCF at the
following address:
Department of Children and Families
Cash Receipt Section
1317 Winewood Blvd.
Building 1, Room 403
Tallahassee, Florida 32399
o The full name and date of birth of each minor child who is the subject of
the child support order must be included in the order. The parent should
be notified when his or her first payment is due and where the check
should be sent. In addition, the court case number, the name of the
person obligated to pay, and the name of the person to whom the
payment is being made must be included with payments. It would be
helpful if the following information was included as standard language
on notices of hearings:
“The first child support payment shall be due on (date) and is payable to the State
of Florida Disbursement Unit, P.O. Box 8500, Tallahassee, Florida 32314-8500.
Include the COUNTY, COURT CASE NUMBER, and NAME of the person to whom the
payment is being made, and your NAME on each payment. No credit for payment will
be given to you for any payment given directly to the custodial parent or caregiver.”
o If the child is in licensed care, the parent can be ordered to pay child
support to the Department of Children and Families to reimburse the
department for costs associated with the child‟s care. §§39.0135,
984.22(3), Florida Statutes.
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
Before leaving court, both parents should receive documentation showing
the judge‟s decision on child support, and the parent payor should receive
information on how payments should be made. If income deduction is being
used, both parents should receive information on when payment will begin
and how payments will be made until the Income Deduction Order takes
effect.

If a change of placement is done during a dependency case, the order
should contain specific language that states the date the payments should
stop to the previous payee, the new payee‟s full name, the amount of the
payment, and the date the payments should start to the new payee. A
better practice would be to do an entirely separate order that redirects
payment as of the date of the change of placement so that the clerk knows
where to direct the money. If the clerk doesn‟t have an order specifying not
only the change in placement but also the change in payee, it could
significantly delay the money reaching the new caretaker of the child.

In termination of parental rights cases where child support has been
previously ordered, the court should address child support in the final
order, notify the Department of Revenue, and specify:
o The date the parent is to stop paying child support, and
o Determine if the parent should continue to pay arrearages.
Follow-Up and Compliance
Follow-up and compliance with child support can be done in several different ways:

DCF Case Managers could use a tickler system that initiates compliance
checks at key points in time. The tickler system should be used in the
following manner:
o The system may be set up as either an automated electronic system or a
manual case file system.
o The tickler system should alert the case manager to the timeframe or
deadline contained in the child support order. Many times, child support
is an integral part of the case plan and the case manager must monitor
compliance along with the other case plan tasks.
o After the deadline passes, if the respondent has not produced
documentation of payment, the case manager should alert the court and
proceed according to circuit procedures.
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
The obligee or their attorney may initiate contempt proceedings if they are
not receiving support pursuant to the court order.

Compliance review hearings should be conducted in the following manner:
o The court can review compliance with child support payments at the
same time the court is conducting its judicial review, permanency
review hearings, or other dependency hearings if the hearing is properly
noticed. If compliance is not occurring, the court can set a separate
compliance hearing with the respondent being the only person required
to attend.
o At the compliance hearing the respondent must provide proof and
documentation that child support is being paid as ordered by the court
and that he or she is complying with all the requirements of the child
support order, or that he or she lacks the ability to pay. §61.14(5)(a),
Florida Statutes.

If the respondent fails to provide proof of child support payments or other
requirements at or before the scheduled review hearings, the court can:
o Order the parent to seek employment or job training. §61.14(5)(b),
Florida Statutes.
o Issue an Order to Show Cause; a hearing date should be set before the
court for no later than two weeks. The offending parent can be found in
civil contempt and jail time of up to 179 days may be ordered. Payor
should be able to make full payment to purge the contempt.
§61.14(5)(a), §38.22, Florida Statutes. [Note: The contemnor must have
the present ability to pay a monetary purge under Bowen v. Bowen, 471
So. 2d 1274, 1279 (Fla. 1985), and Gregory v. Rice, 727 So. 2d 251 (Fla.
1999). See also Family Law Rule of Procedure 12.615.]
o Issue a writ of attachment. §61.11, Florida Statutes.
o Garnish the salary of the parent. §61.12, Florida Statutes.
o The driver's license and motor vehicle registration of a support obligor
may be suspended if the obligor is delinquent in payment or has failed to
comply with subpoenas or a similar order to appear or show cause
relating to paternity or support proceedings. §61.13016(1), Florida
Statutes.
o Allow the Department of Revenue, the state‟s child support enforcement
agency, to enforce the child support order. §39.521(d)(7), Florida
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Statutes. The parent may be directed to apply for help through the
Department of Revenue and file the necessary petition. However, since
it is often difficult for the Department of Revenue to get a copy of a
dependency order, a promising practice would be for the court to enter
a separate child support order and then transfer it to the family division
for enforcement under a new case number. Although this is an option,
ideally the court would handle enforcement during the dependency
proceedings unless enforcement becomes extremely difficult.
o The respondent should have the opportunity to provide proof of
compliance to either the clerk or designee prior to the scheduled review
hearing. If proof is provided early, the respondent should then be
excused from attending the hearing and should be provided with a
document indicating that he or she was excused.
Modifications and Termination

Child support payments can be re-examined when:
o The modification is found necessary by the court and is in the best
interests of the child.
o When the child reaches 18 years of age and it may be best for the court
to extend the child support order prior to the 18th birthday.
o When there is a substantial change in the circumstances of the parties.
§61.13(1)(a), Florida Statutes.

When there is a modification or termination of child support payments
made through the State Disbursement Unit, the clerk‟s office must notify
the State Disbursement Unit of the changes. In addition, if an Income
Deduction Order is facilitating payment, an Order to Vacate should be sent
by the clerk to the employer and the State Disbursement Unit when a
modification or termination is entered.

Upon closure of the dependency case, the court should advise the parents
that if they require help with enforcement or other issues, the case can be
transferred to family court and will receive a new case number. Filing fees
may be assessed. The court should collaborate with the clerk‟s office when
establishing the transfer to determine the best transfer procedure. Once
the procedure is determined, the court should provide a handout to the
parents that outlines the process and directions the parents need to follow.
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119
XI.
CHILD SUPPORT IN DOMESTIC VIOLENCE CASES

If the court determines that an injunction will be issued, the court shall also
rule on such matters as contact between the parties, use of the residence,
temporary custody and visitation, temporary child support, and temporary
child support. Rule 12.610(c)(1)(C)(v), Fla. Fam. L. R. P.

Temporary child support is to be awarded on the same basis as provided in
chapter 61. §741.30(6)(a)(4), Florida Statutes.

As petitioners seek safety for themselves and their children, financial needs are
also a concern. At the same time, petitioners sometimes fear that seeking
temporary child support will alert the respondent to their address, require
physical contact during courtroom proceedings, revive efforts for visitation or
child custody, or anger the respondent further. Therefore, while petitioners
are aware that child support will help with the care of their children, they are
also wary that it may compromise their safety.

This promising practices model serves as suggested guidelines for how child
support should be handled in domestic violence cases. Its purpose is to provide
guidance on issues related to temporary child support in domestic violence
injunction proceedings so petitioners may pursue child support safely and
knowledgably.
The Intake Process
Make sure the petitioner understands all parts of the Petition for Injunction for
Protection against Domestic Violence. In particular, make sure that the petitioner is
aware that he or she may seek temporary child support from the respondent if the
respondent is the legal parent or adoptive parent of a minor child or children. See
§§741.30(6)(a)(4), 61.13(1)(a), 39.402(11)(a), Florida Statutes; Fla. Fam. L. R. P.
Form 12.980(a), section VI(3).

Find out whether paternity has ever been established and if the petitioner
is already receiving child support in another case. Also ask whether the
mother was legally married to a man who is not the other party in the
current case when the child(ren) was conceived or born. If paternity has
never been established, inform the petitioner that initiating a paternity
case is one way to have child support established on a permanent basis.
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
If the petitioner fears disclosing his or her address in Section I of the
Petition for Injunction for Protection against Domestic Violence, make sure
that the petitioner is aware that he or she can keep this information
confidential. If desired, have the petitioner write “confidential” in the
spaces provided in Section I, number 1, and then have the petitioner
complete and file the Florida Supreme Court Approved Form 12.980(h),
Petitioner‟s Request for Confidential Filing of Address.

If the petitioner wishes to seek child support, make sure that Section VI is
filled out completely and accurately. In addition, make sure that the
petitioner also completes:
o Family Law Financial Affidavit, Fla. Fam. L. R. P. Form 12.902(b) or (c);
o Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d);
o Child Support Guidelines Worksheet, Fla. Fam. L. R. P. Form 12.902(e);
o Notice of Social Security Number, Florida Supreme Court Approved
Family Law Form 12.902(j); and
o A Notice of Related Case Form if applicable.

In addition to the required forms, it will be helpful for the establishment of
temporary child support if the petitioner lists such information as the
respondent‟s place of employment along with the address, phone number,
fax number, rate of pay, pay stub information, a W-2 form, or a recent tax
return. If the petitioner does not know this information but can obtain it
and bring it to the hearing, advise him or her to do so.

Prior to the return hearing, make sure to check for related cases to see if
child support has already been established.
In Court

If the petitioner requests temporary child support in the petition, the judge
must address it in the domestic violence hearing pursuant to
§741.2902(2)(d), Florida Statutes, regardless of whether other paternity,
divorce, or related cases are pending. It is the best practice for the
presiding judge to consider and order temporary child support at the
injunction hearing to alleviate the need for the petitioner to return to
court, to prevent additional contacts between the petitioner and the
respondent, and to ensure that temporary child support is ordered and
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hopefully received by the petitioner as soon as possible. Victims of domestic
violence are often in need of child support immediately as they may lose
their regular means of support when they file a petition for an injunction.
Other family court cases may take months to resolve and in the meantime
the children of victims of domestic violence still need to be supported.
Lastly, an order for temporary child support becomes ineffective upon the
entry of an order pertaining to child support in a pending or subsequent civil
case pursuant to §741.30(6)(a)(4), Florida Statutes, so no two orders will
conflict.

If the petitioner does not include a request for temporary child support in
the Petition for Injunction for Protection against Domestic Violence the
judge should not address child support unless the respondent is present and
waives notice.

While the judge can always calculate temporary child support during the
hearing, the following two options can save court time and promote
accuracy:
o Financial affidavits are filled out in court or ahead of time by both
parties, and child support is calculated on the spot by using FinPlan,
Divorce Power Analyzer, or similar software.
o Financial affidavits are filled out in court or ahead of time by both
parties, and the domestic violence case manager calculates the
guidelines amount of child support manually using Form 12.902(e), Child
Support Guidelines Worksheet.

In Title IV-D cases and in all cases utilizing an income deduction order, the
judge shall order temporary child support payments to be made through the
State Disbursement Unit pursuant to §61.181, Florida Statutes. Income
deduction orders should be used whenever possible; however, if payments
are not being made by an income deduction order, the judge shall order
that temporary child support be paid through the depository unless both
parties request and the court finds that direct payments are in the best
interest of the child pursuant to §61.13(1)(d), Florida Statutes. Direct
payments to the petitioner should be avoided as this may increase the
likelihood of contact between the petitioner and the respondent or disputes
as to what was or was not actually paid.
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
Each child support order shall provide the full name and date of birth of
each minor child who is the subject of the child support order. The
respondent should be notified when his or her first payment is due and
where the check should be sent. In addition to the court case number, the
name of the person obligated to pay and the name of the person to whom
the payment is being made must be included with payments. It would be
helpful after each hearing for the respondent to receive a paper reminding
him or her of this information. An example of this is:
The first payment shall be due on (date) and is payable to the State of Florida
Disbursement Unit, PO Box 8500 Tallahassee, FL 32314-8500. Include the COUNTY,
COURT CASE NUMBER, and NAME of the person to whom the payment is being made,
and your NAME, on each payment. No credit for payment will be given to you for any
payment given directly to the custodial parent.
 Income Deduction Orders are the preferred method for collecting child
support payments and should be ordered whenever possible. The deputy
clerk or other designee should mail or fax the Income Deduction Order to
the obligor‟s employer within two business days. The amount of time it
takes for the obligee to receive payment varies greatly depending on the
employer and payroll procedures; therefore, the judge should consider
alternative payment methods for the initial payment or payments.

When ordering temporary child support the judge should explain the
following to both parties:
o That this is temporary child support. The order for temporary child
support will end when the injunction expires, or when a child support
order is entered in another case;
o The options for securing long-term child support, such as a paternity
hearing;
o That it is the petitioner‟s responsibility to notify the court if payments
are not made;
o The court‟s options for enforcing the child support order; and
o The responsibilities of the petitioner and respondent to notify the court
if the award needs to be modified due to a change in circumstance.

Before leaving court, both parties should receive documentation showing
the judge‟s decision on temporary child support, and the respondent should
receive information on how payments should be made. If income deduction
is being used, both the respondent and petitioner should receive
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information on when payment will begin and how payments will be made
until the Income Deduction Order takes effect.
Follow-Up and Compliance
Follow-up and compliance with temporary child support can be done in several
different ways:

One such method is the use of a tickler system that initiates compliance
checks at key points in time. The tickler system should be used in the
following manner:
o The system may be set up as either an automated electronic system or a
manual case file system.
o The tickler system should alert the case manager to the timeframe or
deadline contained in the injunction order for temporary child support
payments.
o After the deadline passes, if the respondent has not produced
documentation of payment, the case manager should alert the court and
proceed according to circuit procedures.

A second method is the use of compliance review hearings. These hearings
should be conducted in the following manner:
o An order setting review hearings for compliance with temporary child
support and all other conditions of the injunction - such as batterers
intervention participation - should be issued at the final hearing.
Compliance hearings should be set for 30 days and 60 days after issuance
of the final judgment with the respondent being the only person
required to attend.
o At the compliance hearing the respondent must provide proof and
documentation that child support is being paid as ordered by the court
and that he or she is complying with all the requirements of the final
judgment.
o If the respondent fails to provide proof of child support payments or
other requirements at or before the scheduled review hearings, an Order
to Show Cause should be issued and a hearing date should be set before
the court for no later than two weeks.
o The respondent should have the opportunity to provide proof of
compliance to either the clerk or designee prior to the scheduled review
hearing. If proof is provided early, the respondent should then be
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excused from attending the hearing and should be provided with a
document indicating that he or she was excused.
o If there is nonpayment of child support after the completion of the
compliance review hearings, the petitioner should file a Motion for
Enforcement with the clerk or obtain the services of the Department of
Revenue Child Support Enforcement Unit to enforce compliance. The
petitioner should be made aware of this responsibility in writing by the
court at the end of the final hearing.
Modifications and Termination



The petitioner or the respondent may request a modification of an
injunction or a dismissal of an injunction using the appropriate Florida
Supreme Court approved Family Law Form.
If requested, domestic violence coordinators should provide information and
referrals to both the petitioner and the respondent regarding changes to or
termination of the injunction.
Upon filing, the motion to modify or terminate the injunction will be sent to
the signing judge for review and a hearing will be scheduled if necessary.
When there is a modification or termination of an injunction requiring temporary
child support payments made to the State Disbursement Unit, the clerk‟s office
must notify the State Disbursement Unit of the changes. In addition, if an Income
Deduction Order is facilitating payment, an Order to Vacate should be sent by the
clerk to the employer and the State Disbursement Unit when a modification or
termination is entered.
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XII. CHILD SUPPORT IN DISSOLUTION CASES

Commencement of a proceeding for dissolution of marriage or for alimony
and child support; dissolution questionnaire. §§61.043, 409.2561, Florida
Statutes. (1) A proceeding for dissolution of marriage or a proceeding under
§61.09 shall be commenced by filing in the circuit court a petition entitled
“In re the marriage of __________, husband, and __________, wife.” A copy
of the petition together with a copy of a summons shall be served upon the
other party to the marriage in the same manner as service of papers in civil
actions generally.

Recent years have seen a number of legislative changes within chapter 61,
Florida Statutes. Subject to a few exceptions, the concepts of parenting
plans and time-sharing have replaced time-honored terms of custody and
visitation. Provisions governing child support in dissolution cases have been
amended as well. While the underlying premise for distribution of marital
assets is equitable division, the starting point for child support is the
recognition in the statutes that “each parent has a fundamental obligation
to support his or her minor child.” §61.29(1), Florida Statutes. How this
obligation is allocated between the parents with the backdrop of dissolution
of marriage proceedings is the focus of this outline; allocations specific to
certain family situations may also be presented in marital settlement
agreements. It should be noted that dissolution is not required for
imposition of a child support obligation; see §61.09, Florida Statutes.

Calculation of Support: (See Child Support Guidelines for more information)

Section 61.30, Florida Statutes, is the starting point for determining the
amount of child support owed; subsection (6) contains the schedule to be
applied to the combined net income of the parents as if they and the
children “were living in an intact household.” §61.29(2), Florida Statutes.
The guidelines apply to both temporary and permanent orders for support.
Gross and net income is discussed in §§61.30(2)-(5), Florida Statutes.

Form reference: Fla. Fam. L. R. P. Form 12.902(e), Child Support Guidelines
Worksheet.
126

Deviation or Variation from the Guidelines: A judge may order payment of child
support, varying within 5% from the amount given in the guidelines, upon
consideration of the factors set forth in §61.30(1)(a), Florida Statutes; a
variance of more than 5% must be accompanied by written findings explaining
why ordering support equal to the guidelines amount would be either unjust or
inappropriate. Deviation factors are enumerated in §61.30(11), Florida
Statutes.

Form reference: Florida Supreme Court Approved Family Law Form 12.943,
Motion to Deviate from Child Support Guidelines.

Department of Revenue: Please refer to the section within this bench book on
Department of Revenue Administrative Orders.

Enforcement of Support: Pursuant to §61.1301(1)(a), Florida Statutes, any
order establishing, enforcing, or modifying a child support obligation, other
than an order for temporary support, must be accompanied by a separate order
for an income deduction, if one has not already been entered. In accordance
with §61.1301, Florida Statutes, income deduction orders may be issued in both
Title IV-D and non-Title IV-D cases; however, immediate implementation of an
income deduction order may be deferred in certain circumstances. Deferral
generally requires: a showing that immediate implementation is not in the best
interests of the minor child; proof of past timely support payments without an
income deduction order; and either an agreement by the obligor to advise the
Title IV-D agency of any change in payor and/or health insurance or an
agreement signed by obligor and obligee providing an alternative arrangement.
Payments are made to either the State Disbursement Unit or to a central
depository within the office of the clerk of court (See Fla. Fam. L. R. P.
12.996(a), Income Deduction Order, for the order issued in non-Title IV-D
cases.). An action for enforcement of child support may be brought in the
county in which either the obligee or obligor resides. Depending on the
circumstances, methods for enforcement may include garnishment; suspension
of the obligor‟s driver‟s license or registration; or interception of
unemployment compensation, federal tax refunds, and lottery winnings.
Continued refusal to meet a court-ordered child support obligation may also
subject an obligor to indirect civil contempt proceedings (See Writ of Bodily
Attachment below). Direct criminal contempt proceedings may be used if the
obligor has either continually and willfully neglected his or her support
obligations or has affirmatively divested himself or herself of assets. Bowen v.
Bowen, 471 So. 2d 1274 (Fla. 1985).
127

High School Students: Pursuant to §743.07(2), Florida Statutes, the court may
require support for a dependent between the ages of 18 and 19, who is still
attending high school, so long as the student is “performing in good faith with a
reasonable expectation of graduation before the age of 19.”

Disabled students: The court may require support for a dependent child beyond
the age of 18 if the dependency is because of a metal or physical disability that
began prior to the child reaching the age of majority.

Income (Gross and Net): Gross income is defined in §61.30(2)(a), Florida
Statutes. Subtracting allowable deductions from gross income yields net
income; allowable deductions are found in §61.30(3). The child support
guidelines rely on the combined net incomes of the parents to determine the
minimum required for child support.

Income (Imputed): Only legal income can be considered. Crossin v. Crossin, 979
So. 2d 298 (Fla. 4th DCA 2008).
o Income is imputed to a voluntarily unemployed or underemployed parent
and in absence of a factual finding of either physical or mental
incapacity or circumstances beyond the parent‟s control; the imputation
must be based on competent, substantial evidence. The mechanics of
imputation of income are found in §61.30(2)(b); that section also
authorizes the court to refuse to impute income to a parent when the
court finds that it is necessary for that parent to stay home with a child.
With the exception of a parent who has recently graduated or has
recently become licensed or certified, income cannot be imputed at a
higher level than the parent ever earned. Neither incarceration resulting
from a crime tied to child support block nor a parent‟s financial reversal
caused by the costs of defending against a crime related to the child
support obligation necessarily bar imputation of income. Mascola v.
Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999); Waskin v.Waskin, 484 So. 2d
1277 (Fla. 3d DCA 1986).

Income Deduction Orders: Permissible with entry of temporary order
establishing support or temporary order enforcing or modifying a temporary
order of support; mandatory with other orders establishing, modifying, or
enforcing obligations or alimony and/or child support. Payments may be made
either through the depository within the clerk‟s office or to the State
Disbursement Unit, depending on how payment is ordered. An income
deduction order is effective immediately, unless the court defers it, “upon
128
good cause shown,” and with written findings satisfying §61.1301(b)8, Florida
Statutes. Forms for income deduction orders were most recently revised in
June, 2011.

Form references: Fla. Fam. L. R. P. Forms 12.996(a), Income Deduction Order
(Non-Title IV-D case) and 12.996(b), Notice to Payor.

Information to be Submitted to the Court: Social security number and date of
birth of each party; name, date of birth, and social security number of each
minor child. §61.13(8), Florida Statutes.

Insurance (Health and Life): Every order imposing a child support obligation
must contain a provision for health insurance for the minor children “when
health insurance is reasonable in cost and accessible to the child.”
§61.13(1)(b), Florida Statutes.
Reasonableness generally means that the cost does not exceed 5% of the gross
income of the parent responsible for providing it; accessibility means that it
may be used in the children‟s home county, “or in another county if the parent
who has the most time under the time-sharing plan agrees.” In circumstances
of equal time-sharing, accessible means either the child‟s home county or
another if both parents agree. The details of health insurance for minor
children are spelled out in §61.13(1)(b). Section 61.13(1)(c) authorizes a court
having imposed a child support obligation to order the obligor to either
purchase or maintain life insurance to secure the obligation. Although there is
no “reasonableness” requirement for life insurance in the statute, there are
cases on that point.

Methods of Payment: Section 61.1301(1)(a), Florida Statutes, requires issuance
of a separate income deduction order to accompany any non-temporary order
establishing, enforcing, or modifying an order for child support, if one has not
already been entered; however, depending on circumstances, immediate
implementation of the income deduction order may be deferred. Generally,
payments made in accordance with an income deduction order are made to
either the State Disbursement Unit or the central depository within the clerk‟s
office. (Please see Enforcement above).

Military Parents: When a temporary order is entered under §61.13002, Florida
Statutes, the court may address child support by: “entering an order of
temporary support from the service member to the other parent under §61.30;
requiring the service member to enroll the child as a military dependent with
129
DEERs, TriCare, or other similar benefits available to military dependents as
provided by the service member‟s branch of service and federal regulations; or
suspending, abating, or reducing the child support obligation of the non-service
member until the custody judgment or time-share order previously in effect is
reinstated.” Section 61.13002 applies only to temporary modifications due to
military service; permanent change of station moves by military personnel are
governed by the provisions regarding relocation, §61.13001, Florida Statutes.

Form references: Florida Supreme Court Approved Family Law Forms 12.905(d),
Supplemental Petition for Temporary Modification of Parenting Issues for
Child(ren) of Parent Activated, Deployed, or Temporarily Assigned to Military
Service; and 12.950(a), (c), (d), (e), (f), and (i), regarding relocation.

Modification of Support: There are numerous justifications a parent may
present when petitioning for modification of child support, but vital to a
request for modification is either: (1) a substantial change in circumstances or
in the financial ability of either party, which occurs subsequent to the
imposition of the child support obligation, whether that obligation is agreed to
or court-ordered; or (2) a child or children who benefit from the obligation are
no longer entitled to support, leading to a reduction or termination of the
obligation. §§61.13, 61.14, Florida Statutes.

Obligation for Support: “Each parent has a fundamental obligation to support
his or her minor or legally dependent child.” §61.29(1), Florida Statutes.

Overnights: The number of overnights comes into play when deviation from the
guidelines is being considered. “Substantial amount of time,” as defined in
§61.30(11)(b)8, Florida Statutes, means that a parent exercises time-sharing of
at least 20% of the overnights in a year. A parenting arrangement in which “the
child spends a significant amount of time, but less than 20% of the overnights
with one parent,” is a factor for deviation under §61.30(11)(a)10. The
threshold percentage of overnights required to be considered “substantial” has
been the subject of legislative action within the past few years; it was recently
reduced from 40% to 20%. The number of overnights must be entered on the
guidelines worksheet, form 12.902(e). §61.30(11), Florida Statutes.

Reduction or Termination of Support: Unless §743.07(2), Florida Statutes,
applies (see High School Students above) or the parties agree otherwise, a
parent‟s obligation for child support terminates on a child‟s 18th birthday, at
which time, the overall obligation for any remaining minor or dependent
children is reduced in accordance with the schedule required by
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§61.13(1)(a)(1)b, Florida Statutes. That schedule must specify the date of
reduction or termination. §61.13(1)(a), Florida Statutes.

Retroactive Support: In its initial determination of child support in a dissolution
of marriage proceeding, the court has the discretion to “award child support
retroactive to the date when the parents did not reside together in the same
household with the child, not to exceed a period of 24 months preceding filing
of the petition, regardless of whether that date precedes the filing of the
petition.” §61.30(17), Florida Statutes. Section 61.14(1)(a), Florida Statutes,
allows the court to modify an order of support by increasing or decreasing the
support retroactively to the date of filing of the initial or supplemental petition
for modification, “as equity requires,” unless otherwise provided in §61.30(17).
Retroactive child support may be awarded in temporary orders.

Service: Service of process by publication (constructive service) is permitted
for dissolution or annulment of marriage; cases involving either alimony or
child support require personal service. §49.011(4), Florida Statutes.

State Disbursement Unit: The State Disbursement Unit is the agency responsible
for collection and disbursement of child support payments in all Title IV-D
cases and in non-Title IV-D cases in which the initial support order was issued in
Florida after January 1, 1994, and in which the obligor‟s child support
obligation is paid through income deduction.

Tax Issues: As these issues may be complicated, they are outside of the scope
of this outline; however, the question of whether one parent receives the
federal income tax dependency or whether the tax credit rotates between
parents should be considered during the dissolution proceedings. Although a
court is not authorized to allocate the dependency exemption, it can require a
custodial parent to transfer it to the non-custodial parent so long as the noncustodial parent is current with support payments. (Geddies v. Geddies, 43 So.
3d 888 (Fla. 1st DCA 2010). By whom child support payments are deducted and
to whom they are taxed should also be taken into consideration as unallocated
support payments may be viewed as alimony by the IRS. It is important that the
parties consult attorneys and/or accountants regarding taxation issues.

Temporary Support: The child support guidelines (see above) apply to
temporary support orders. A trial court may retroactively reduce a parent‟s
obligation for temporary child support, but cannot retroactively increase
temporary child support payments for the period prior to the date the motion
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to increase the child support is filed, Flores v. Flores, 874 So. 2d 1211 (Fla. 4th
DCA 2004).

Termination of Support: (see Reduction or Termination of Support above)

Title IV-D Payments: Title IV-D cases have some administrative remedies for
non-payment of child support that non-Title IV-D do not, such as interception
of unemployment compensation benefits, federal tax refunds, and lottery
winnings.

Writs of Bodily Attachment: (also see Enforcement) Issuance of this writ in
connection with a court-ordered child support obligation must include a
physical description, as required by §61.11(2)(a), Florida Statutes, and must
advise the contemnor how he or she can purge the contempt. The writ must
include the amount of the purge payment and how it is to be allocated
between unpaid support, and other amounts owing such as the sheriff‟s fee or
Department of Revenue costs. See also Florida Supreme Court Approved Family
Law Form 12.962, Writ of Bodily Attachment.
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XIII. DEPARTMENT OF REVENUE ADMINISTRATIVE SUPPORT
ORDERS

Child support orders in Title IV-D cases can now be established
administratively by the Florida Department of Revenue in a quasi-judicial
procedure. It does not supplant or replace the traditional judicial process,
but provides an alternative procedure when there is not a judicial support
order. §409.2563(2)(a), Florida Statutes.

The Department of Revenue may modify or terminate its administrative
order, unless the circuit court has taken jurisdiction by issuing a prospective
superseding order. §409.2563(10)(d), Florida Statutes.

Evidentiary hearings are conducted by the Division of Administrative
Hearings. §409.2563(6), Florida Statutes.

The administrative procedure only allows the establishment of child support
obligations. The Division of Administrative Hearings does not have
jurisdiction to hear or determine dissolution of marriage, separation,
alimony or spousal support, termination of parental rights, dependency,
disputed paternity (except as provided in §409.256, Florida Statutes) or
award of or change to time sharing. §409.2563(2)(b), Florida Statutes.
o The Department of Revenue was obligated to terminate an
administrative proceeding to establish child support and continue in
circuit court once the father requested paternity testing. Neither the
Department of Revenue nor the Division of Administrative Hearings had
jurisdiction to hear or determine issues of disputed paternity. Mendez v.
Dept. of Revenue, 898 So. 2d 1060 (Fla. 2d DCA 2005).
o When paternity has already been established by affidavit, a birth
certificate, or a prior judicial proceeding, the father is not a “putative
father” and the Department of Revenue, the mother, or the child do not
bear the burden of proving paternity. Fernandez v. Dept. of Revenue,
971 So. 2d 875 (Fla. 3d DCA 2007).
o A father who has acknowledged paternity will remain responsible for
child support until he establishes good cause or prevails in his own action
in circuit court to disestablish paternity and terminate the payment
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obligations. The father‟s unverified request for DNA testing, without a
separate circuit court action and affidavit conforming to the applicable
paternity statutes, was insufficient to halt the administrative proceeding
for the benefit of the child. Fernandez v. Dept. of Revenue, 971 So. 2d
875 (Fla. 3d DCA 2007).

The department may proceed administratively to establish support on
behalf of:
o An applicant or recipient of public assistance,
o A former recipient of public assistance,
o An individual who has applied for services,
o Itself or the child as provided by §409.2561, Florida Statutes, in public
assistance cases, or
o A state or local government of another state.
§409.2563(2)(c), Florida Statutes.
A support order issued by a circuit court prospectively supersedes an administrative
support order rendered by the Department of Revenue. §409.2563(2)(d), Florida
Statutes. However, to supersede an administrative order, the court must
prospectively change the support obligations and determine the amount of any unpaid
support owed under the administrative order, and shall include the amount as
arrearage in its superseding order. The court may not retroactively modify any unpaid
support owed under the administrative order, except as provided by §61.14(1)(a).
§409.2563(10)(c), Florida Statutes. Dept. of Revenue ex rel. Chamberlain v. Manasala,
982 So. 2d 1257 (Fla. 1st DCA 2008) (holding that although a circuit court is authorized
to supersede the entry of an administrative support order by entering a prospective
order modifying the child support award, it is not authorized to enter an order
vacating or retroactively affecting the administrative support order).

The administrative order must provide and state findings, if applicable,
concerning:
o The full name and date of birth of the child or children;
o The names of the parents and caregivers;
o The parent's duty and ability to provide support;
o The amount of the parent's monthly support obligation;
o Any obligation to pay retroactive support;
o The parent's obligation to provide for health care;
o The beginning date of any required monthly payments and health
insurance;
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o That all support payments ordered must be paid to the Florida State
Disbursement Unit;
o That the parents or caregiver must file a financial affidavit, appropriate
disclosures, and any change of address;
o That if the parent ordered to pay support receives unemployment
compensation benefits, the payor shall withhold, and transmit to the
department, 40 percent of the benefits for payment of support, not to
exceed the amount owed. §409.2563(7)(e), Florida Statutes.

An income deduction order must be incorporated into the administrative
support order or, if not, then rendered separately. §409.2563(7)(e), Florida
Statutes.

The Department of Revenue may utilize this procedure to establish a child
support obligation against a nonresident over whom the state may assert
personal jurisdiction. §409.2563(3), Florida Statutes.

The parent from whom support is being sought may consent in writing to
entry of an administrative support order without a hearing.
§409.2563(5)(c)(4), Florida Statutes.
Modification
 If it has not been superseded by a subsequent court order, the Department
of Revenue may modify, suspend, or terminate an administrative support
order in a Title IV-D case. §409.2563(12), Florida Statutes.

A circuit court order may supersede a prior order by changing the support
obligations prospectively. The circuit court does not have jurisdiction to
vacate, amend, modify, or terminate an administrative order retroactively.
State, Dept. of Revenue ex rel. Chamberlain v. Manasala, 982 So. 2d 1257
(Fla. 1st DCA 2008).

A circuit court order which required the father to pay the exact amount he
had been ordered to pay under final administrative support order, was an
enforcement order rather than a superseding order. The Department of
Revenue therefore, had jurisdiction to enter administrative modification
order. The circuit court order did not prospectively change the father's
support obligation. Dept. of Revenue ex rel. Gauthier v. Hoover, 40 So. 3d
99 (Fla. 5th DCA 2010).
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Judicial Enforcement
 An administrative support order issued with or without a hearing may be
enforced by any lawful means except contempt. §§409.2563(5)(c)(6),
409.2563(9)(d)(1), Florida Statutes.
o If the circuit court issues its own order enforcing the administrative
support order, the circuit court may enforce its own order by contempt.
§409.2563(10)(b), Florida Statutes.

The Department of Revenue may implement an income deduction notice
immediately upon rendition of an income deduction order, whether it is
incorporated in the administrative support order or rendered separately.
§409.2563(9)(a), Florida Statutes.

The Department of Revenue may initiate other collection action 15 days
after the date an administrative support order is rendered. §409.2563(9)(b),
Florida Statutes.
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CHRISTIAN M. GIVENS*†
7
MODIFICATION OF CHILD SUPPORT
I.
[§7.1] INTRODUCTION
II.
PARTIES
A. [§7.2] In General
B. [§7.3] Child
C. [§7.4] Adoptive Parents And Guardians
D. [§7.5] Third-Party Custodians
E. [§7.6] Department Of Revenue
III.
GROUNDS
A. [§7.7] Statutory Basis
B. [§7.8] Best Interest Of Child
C. Change In Circumstances
1.
[§7.9] In General
2.
Payor
a. Ability To Pay
(1) [§7.10]
In General
(2) [§7.11]
Application Of Child Support Guidelines
(3) [§7.12]
Good Fortune Child Support
(4) [§7.13]
Receipt Of Social Security Benefits
b. [§7.14]
Permanent Change
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c. [§7.15]
Voluntary Change
d. [§7.16]
Incarcerated Parent
e. Challenge To Paternity
(1) [§7.17]
In General
(2) [§7.18]
Disestablishment Of Paternity
*J.D., 2003, Florida State University. Mr. Givens is a member of The Florida Bar and
the Hillsborough County Bar Association. He practices with Givens Law Group, LLC., in
Tampa.
†David M. Caveda, Tampa, was the co-author of this chapter in the ninth edition of
this manual.
3.
4.
5.
a.
b.
c.
d.
e.
f.
g.
6.
7.
8.
D. [§7.31]
E. [§7.32]
IV.
PROCEDURE
A. [§7.33]
B. [§7.34]
C. [§7.35]
D. [§7.36]
E. [§7.37]
F. [§7.38]
G. Proof
1.
2.
[§7.19]
Payee
[§7.20]
Remarriage
Child
[§7.21]
In General
[§7.22]
Needs
[§7.23]
Majority
[§7.24]
Behavior
[§7.25]
Change In Residence
[§7.26]
Emancipation
[§7.27]
Income Of Child
[§7.28]
Effect Of Inflation
[§7.29]
Support Of Subsequent Children
[§7.30]
Substantial Shared Parenting Time
Support Set By Agreement
Modification On Remand
Commencement Of Proceedings
Notice And Hearing
Discovery And Mandatory Disclosure
Child Support Guidelines
Temporary Relief
Referral To General Magistrate Or Hearing Officer
[§7.39]
Burden Of Proof
Change In Circumstances
a. [§7.40]
Needs Of Child
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b. [§7.41]
c. [§7.42]
d. [§7.43]
H. Defenses
1.
2.
3.
4.
5.
I. Order
1.
2.
3.
J. [§7.52]
Ability To Pay
Inflation
Voluntary Payments
[§7.44]
[§7.45]
[§7.46]
[§7.47]
[§7.48]
Arrearages
Agreement Not To Modify
Time-Sharing
Insufficiency Of Proof
Laches
[§7.49]
[§7.50]
[§7.51]
Appeal
In General
Method Of Payment
Effective Date
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I.
[§7.1] INTRODUCTION
This chapter discusses the modification of child support in postjudgment judicial
proceedings. Modification and termination of support orders issued in Florida and by
other courts are covered. The chapter examines who is eligible to modify support, the
grounds and procedural steps involved in obtaining modification, defenses to a
modification action, the effect of the child support guidelines, and appellate review.
Other chapters of this manual also discuss child support orders. Jurisdiction and venue
in postjudgment proceedings is covered in Chapter 2. For discussion of enforcement of
child support orders, see Chapter 3. The Uniform Interstate Family Support Act
(UIFSA) is analyzed in Chapter 8. Enforcement of foreign judgments in Florida is the
subject of Chapter 9. The Child Support Enforcement Program operated by the
Department of Revenue (“department”) is discussed in Chapter 10.
The enactment of F.S. 61.30 and its subsequent amendments have significantly
changed the practice, procedure, and grounds for modifying child support. Because
decisions interpreting the statute are released regularly, practitioners are advised to
stay current on emerging case law.
See Chapter 12 of Florida Dissolution of Marriage (Fla. Bar CLE 10th ed. 2010) for
further discussion of child support.
II.
A.
PARTIES
[§7.2] In General
Any payor or payee under a current child support order may seek modification of that
order. This includes any person presently receiving support for a child, whether a
natural parent, adoptive parent, or guardian, and any person making payments for
child support. F.S. 61.14(1)(a). But see D.F. v. Dept. of Revenue ex rel. L.F., 736
So.2d 782 (Fla. 2d DCA 1999), approved 823 So.2d 97, discussed in §7.5.
B.
[§7.3] Child
It does not appear that a minor child who is the subject of a support order has
standing to seek a modification of that order, because the child is not a “party.” F.S.
61.14(1)(a). A distinction must be made, however, between enforcement and
modification. Under contract law, a child is an intended third-party beneficiary to a
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marital settlement agreement providing for child support. Intended third-party
beneficiaries to a contract may enforce the contract. Generally, courts may not
modify a contract without specific authority in law to do so. However, “[c]ontracts
between the parents regarding the support of their minor children are subject to the
plenary power of the state to control, regulate and [exercise] discretion [over
whether] to enforce.” Zolonz v. Zolonz, 659 So.2d 451, 452 (Fla. 4th DCA 1995).
The court may not modify or change the agreement of the parties as it relates to the
support of their adult children. Richter v. Richter, 666 So.2d 559 (Fla. 4th DCA 1996);
Zolonz. However, an adult child, as a third-party beneficiary, may enforce a
contractual obligation to pay support beyond age 18 or to pay college expenses.
Farnsworth v. Farnsworth, 657 So.2d 1273 (Fla. 1st DCA 1995). An adult child may
also enforce arrearages that accrued during his or her minority. Dept. of Health &
Rehabilitative Services, Child Support Enforcement v. Holland, 602 So.2d 652 (Fla.
5th DCA 1992).
In Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998), the mother sought
“modification” of a child support order on behalf of her 26-year-old mentally
handicapped daughter. The parties‟ original agreement had provided support through
the child‟s 21st birthday. The appellate court affirmed the trial court‟s ruling that it
lacked jurisdiction to modify the order, but noted that the daughter could bring an
independent action for support under F.S. 743.07(2). See also Taylor v. Bonsall, 875
So.2d 705 (Fla. 5th DCA 2004).
C.
[§7.4] Adoptive Parents And Guardians
F.S. 63.172(1)(c) creates a relationship between adoptive parents and their adopted
child equivalent to that of a “blood descendant . . . born within wedlock.” This
relationship applies to all statutes, including those fixing support obligations.
Under F.S. 744.361 et seq., a guardian has a duty to ensure that the ward receives
medical, mental, and personal care and social and personal services for the ward‟s
best welfare. F.S. 744.361(8) specifically requires the guardian, if authorized by the
court, to take possession of all of the ward‟s assets and property and use them for the
care, support, maintenance, and education of the ward/child. This duty confers on
that guardian the right to seek modification of an existing child support obligation.
The court in Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982), held that a
child‟s right of support, during his or her minority, must be enforced by a legal
representative, such as a guardian, fiduciary, guardian ad litem, or next friend. In
Florida Dept. of Health & Rehabilitative Services ex rel. Powell v. Powell, 490 So.2d
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1043 (Fla. 2d DCA 1986), the court held that a grandmother given custody of her three
grandchildren could bring an action for their support. If a guardian or custodian must
enforce the obligation, that same person should also be able to seek modification of
it.
D.
[§7.5] Third-Party Custodians
A person who is not a legal guardian may have physical or actual custody of a child.
This third-party custodian, usually a relative or friend and often a grandparent, may
be receiving support for the child. This arrangement is common in child support cases
involving the Department of Revenue. In these cases, the third-party custodian is a
subrogee, receiving public assistance on behalf of the child. In other cases, the
arrangement exists with parental consent. In either case, a modification proceeding
may be needed to redirect child support to the third-party custodian.
The status of the third-party custodian as a party may be questionable. In D.F. v.
Dept. of Revenue ex rel. L.F., 736 So.2d 782 (Fla. 2d DCA 1999), approved 823 So.2d
97, the parents‟ final judgment of dissolution of marriage incorporated a settlement
agreement providing that the maternal grandparents would provide the child‟s
primary physical residence. The father was ordered to pay child support directly to
the grandparents. Three years later, following a contempt proceeding, an income
deduction order was entered requiring payment through the court depository. In
1997, the department filed a petition to modify the father‟s child support obligation.
The mother signed an affidavit stating that she was the child‟s custodian. An order
increasing child support was appealed by the father on the ground that the
grandparents should have been joined as indispensable parties to the action. The
appellate court disagreed, stating: “Even if the child still resides with the maternal
grandparents, the grandparents are not parties whose interest in the subject matter is
such that a complete and efficient determination of the equities and rights of the
other parties is not possible without their joinder.” Id. at 784. The indispensable
parties are those persons who have a legal duty to support the children involved.
Dept. of Revenue ex rel. Preston v. Cummings, 871 So.2d 1055 (Fla. 2d DCA 2004),
approved 930 So.2d 604 (legal fathers are indispensable parties in actions to
determine paternity of biological father and duty of support).
E.
[§7.6] Department Of Revenue
The Department of Revenue, Child Support Enforcement Program, is authorized by
F.S. 409.2551 et seq. to assist in the enforcement of child support obligations. See
Taylor v. McGregor, 616 So.2d 159 (Fla. 3d DCA 1993). The department is also
authorized by F.S. 409.2561(1) to “apply for modification of a support order on the
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same grounds as either party to the cause.” Accordingly, the department may be a
proper party to a modification action. See Thaysen v. Thaysen, 583 So.2d 663 (Fla.
1991).
In Dept. of Health & Rehabilitative Services, Child Support Enforcement v. Holland,
602 So.2d 652 (Fla. 5th DCA 1992), the court held that neither HRS (predecessor to
the Department of Revenue as the state child support enforcement agency) nor the
mother could enforce (or, presumably, modify) child support accruing after majority.
See Chapter 10 of this manual for detailed discussion of the child support
enforcement program.
III.
A.
GROUNDS
[§7.7] Statutory Basis
The statutory grounds for modification of child support are found in F.S. 61.13(1)(a)
and 61.14(1)(a). F.S. 61.13(1)(a)2 authorizes modification in accordance with the
guidelines in F.S. 61.30 when
•
it is found necessary by the court in the best interest of the child;
•
the child reaches majority;
•
F.S. 742.07(2) (extension of support to allow high school graduation)
applies;
•
a child is emancipated, marries, joins the armed forces, or dies; or
•
there is a substantial change in the circumstances of the parties.
F.S. 61.14(1)(a) identifies the grounds for modification as a change in the
circumstances or the financial ability of either party or the attainment of majority by
the child who is a beneficiary of an agreement or court order awarding child support.
Although the statutes must be read together, under F.S. 61.13(1)(a), “a court may
enter an order modifying child support payments when the modification is found to be
necessary in the best interests of the child or when there is a substantial change of
circumstances.” Overbey v. Overbey, 698 So.2d 811, 814–815 (Fla. 1997). “To justify a
modification of child support, the movant must establish a substantial change in
circumstances that is material, involuntary, and permanent in nature.” Swanson v.
Swanson, 888 So.2d 117, 119 (Fla. 4th DCA 2004). Future or anticipated events do not
provide an appropriate evidentiary basis when originally determining support. Knapp
v. Knapp, 778 So.2d 475 (Fla. 3d DCA 2001).
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Under F.S. 61.14(1)(a), a “finding that medical insurance is reasonably available or
the child support guidelines schedule in s. 61.30 may constitute changed
circumstances” to support modification of support. F.S. 61.30(1)(b) also provides that
the child support guidelines may constitute a substantial change for modification
when their application results in an adjustment of child support of at least 15% or
$50, whichever is greater. But see Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997)
(F.S. 61.30(1)(b) not applicable to downward modification of support set by
agreement without showing of change of circumstances). See §§7.11 and 7.36 for
discussion of the guidelines.
B.
[§7.8] Best Interest Of Child
Historically, courts did not give much weight to the “best interests of the child”
ground in F.S. 61.13(1)(a). Some courts have stated explicitly that the best interest
ground is not sufficient alone to justify modification when the original support
amount was fixed by agreement of the parties, and that the parties must also show a
change in circumstances. See, e.g., Fritz v. Fritz, 485 So.2d 488 (Fla. 3d DCA 1986);
Lacy v. Lacy, 413 So.2d 472 (Fla. 2d DCA 1982), disapproved in part 698 So.2d 811. In
other cases, however, courts have held that modification may be permitted, if
necessary for the best interest of the children, without regard to a substantial change
in circumstances. See, e.g., Booth v. Booth, 625 So.2d 114 (Fla. 2d DCA 1993); Wood
v. Wood, 272 So.2d 14 (Fla. 3d DCA 1973).
In Overbey v. Overbey, 698 So.2d 811 (Fla. 1997), the court applied the best interest
standard in reviewing a request by the payor/father for a downward modification in
child support while the payor attended law school. The court rejected the
voluntary/involuntary change standard applied in cases such as Milligan v. Addison,
582 So.2d 769 (Fla. 3d DCA 1991), and State, Dept. of Revenue ex rel. Johnson v.
Thomas, 659 So.2d 1305 (Fla. 1st DCA 1995), and stated that “the focus should be on
whether the temporary reduction will be in the best interests of the recipients.”
Overbey, 698 So.2d at 814. Under Overbey, factors to be considered include the age
of the child and the increased income that is expected after the parent completes the
further training or education; i.e., will there be a significant increase in the payor‟s
ability to pay, and for how many years can the child benefit from this increased
support?
Even if the payee parent wastes or dissipates assets, the payor must pay based on the
best interest of the children. If the payee spouse mishandles funds, the court can
issue practical implementing orders. See Pariser v. Pariser, 636 So.2d 741 (Fla. 4th
DCA 1994) (Polen, J., concurring specially).
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Notwithstanding the language of the statute, the better practice is to allege and
attempt to prove a substantial change in circumstances and that modification would
be in the best interest of the child.
C.
Change In Circumstances
3.
[§7.9] In General
Both F.S. 61.13(1)(a) and 61.14(1)(a) cite a substantial change in the parties‟
circumstances as a ground for modification of child support. Under Allen v. Allen, 569
So.2d 875 (Fla. 2d DCA 1990), changed circumstances sufficient to justify a
modification of child support must be unanticipated, significant, substantive,
material, involuntary, and permanent in nature. See also Swanson v. Swanson, 888
So.2d 117 (Fla. 4th DCA 2004); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th
DCA 1981) (change in circumstances must be significant, material, involuntary, and
permanent in nature). In making a downward modification, the court must also
consider the best interests of the children. Overbey v. Overbey, 698 So.2d 811 (Fla.
1997); Tietig v. Boggs, 602 So.2d 1250 (Fla. 1992). When the parties have agreed to a
modification, however, the petitioner is not required to prove a substantial change in
circumstances. Andrews v. Andrews, 712 So.2d 462 (Fla. 2d DCA 1998). The child
support guidelines schedule may also justify a modification of support. F.S.
61.30(1)(b) provides that
[t]he guidelines may provide the basis for proving a substantial
change in circumstances upon which a modification of an existing order
may be granted. However, the difference between the existing monthly
obligation and the amount provided for under the guidelines shall be at
least 15 percent or $50, whichever amount is greater, before the court
may find that the guidelines provide a substantial change in
circumstances.
In Miller v. Schou, 616 So.2d 436 (Fla. 1993), the court held that an increase in the
payor‟s ability to pay was sufficient by itself to justify a modification of child support.
However, in Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999), a “good fortune”
child support case, the appellate court approved the trial court‟s requirement that
the mother show a change in the children‟s needs. See §7.12 for discussion of good
fortune child support.
2.
Payor
a. Ability To Pay
(1)
[§7.10]
In General
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A substantial increase or decrease in the ability of the payor to make the child
support payment is justification for modification. F.S. 61.13(1)(a)2, 61.14(1)(a);
Garone v. Goller, 878 So.2d 430 (Fla. 3d DCA 2004). In fact, it is error to modify child
support without considering the payor‟s ability to pay. Shellmyer v. Shellmyer, 418
So.2d 477 (Fla. 4th DCA 1982). The court must determine whether a specific change is
of sufficient magnitude to be deemed “substantial.” In Thompson v. Thompson, 402
So.2d 1220 (Fla. 5th DCA 1981), the court suggested that a 10% change in the income
of the payor constituted a substantial change in circumstances justifying modification.
However, ability to pay may encompass more than just an increase or decrease in
income. Kersh v. Kersh, 613 So.2d 585 (Fla. 4th DCA 1993) (father‟s income had
increased but expenses had also increased on remarriage and birth of two subsequent
children).
There must be a change in the payor‟s ability to pay for a downward modification to
be granted. In Conness v. Conness, 607 So.2d 493 (Fla. 4th DCA 1992), the court held
that financial circumstances known to the payor at the time of the original agreement
could not form the basis for modification. See also State, Dept. of Health &
Rehabilitative Services ex rel. Movassaghi v. Mirarmandeh, 597 So.2d 421 (Fla. 2d
DCA 1992). However, a substantial decrease in the parents‟ earnings does not in all
circumstances require a reduction in support payments. Whitney v. Whitney, 624
So.2d 275 (Fla. 3d DCA 1993) (Baskin, J., dissenting); Cimitier v. Cimitier, 579 So.2d
142 (Fla. 3d DCA 1991).
Imputation of income must be based on competent, substantial evidence and include
a determination of whether a parent‟s underemployment is voluntary and a
calculation of the imputed income. In calculating imputed income, the court must
consider the parent‟s recent work history, occupational qualifications, and the
prevailing wage in the community. Bator v. Osborne, 983 So.2d 1198 (Fla. 2d DCA
2008).
Regardless of any change, it is error for the court to order a parent “to pay child
support which that parent cannot afford to pay.” Alois v. Alois, 937 So.2d 171, 175
(Fla. 4th DCA 2006).
(2)
[§7.11]
Application Of Child Support Guidelines
The child support guidelines may be the basis for modification of child support when
their application results in an adjustment of child support of at least 15% or $50,
whichever is greater. F.S. 61.30(1)(b). However, in Knight v. Knight, 702 So.2d 242
(Fla. 4th DCA 1997), the court held that a downward modification of support set by
agreement could not be based solely on the guidelines statute and required a showing
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of changed circumstances. But see Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA
2003).
In Simmons v. Simmons, 922 So.2d 373 (Fla. 4th DCA 2006), the trial court granted a
downward modification of child support because the father was paying more than
required by the guidelines. The appellate court reversed, stating that the guidelines
could not be used “„as the sole basis for relief from an agreed-to, judicially adopted
child support order without a showing of independent changed circumstances.‟” Id. at
374, quoting Fleischmann v. Fleischmann, 868 So.2d 1, 2–3 (Fla. 4th DCA 2004).
The change in ability to pay must be one recognized by the child support guidelines
statute, F.S. 61.30. In Smoot v. Smoot, 685 So.2d 1337 (Fla. 2d DCA 1996), the court
found that the former husband‟s payment of credit card debts that the former wife
was ordered to pay did not constitute allowable deductions from gross income for the
purpose of calculating child support. Therefore, the court found that the payments, in
excess of $2,200, did not equate to a change in net income and reversed the
temporary reduction of child support.
In McGhee v. Childress, 724 So.2d 196, 197 (Fla. 1st DCA 1999), when an upward
modification of child support had been requested, the trial court erred in deviating
20% from the guidelines amount “„based on the fact that the appellee‟s salary is
currently at the minimum wage.‟” In Davis v. Spencer, 737 So.2d 1226 (Fla. 1st DCA
1999), the trial court ordered an upward modification but allowed the father to
slowly increase his payments over four months. The appellate court reversed,
rejecting the trial court‟s finding “that it was unfair to [the father] to increase his
support payments immediately.” Id. at 1226.
In Heard v Heard, 965 So.2d 173, (Fla. 5th DCA 2007), the court held that the former
wife could not receive relief, pursuant to Fla.Fam.L.R.P. 12.540, from a marital
settlement agreement, entered into four years earlier, that provided for child support
that was approximately 37% less than what the guidelines would have required. In
Heard, the court held that because the former wife had access to all material
financial information she could not receive retroactive relief. The court did specify
that its ruling was without prejudice to any future attempt to seek a modification of
the previously agreed-upon child support.
As in an initial determination of child support, the court should impute income to a
party who is voluntarily unemployed or underemployed. F.S. 61.30(2)(b) provides a
procedure for imputation of income. See, e.g., Bator v. Osborne, 987 So.2d 1198 (Fla.
2d DCA 2008).
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(3)
[§7.12]
Good Fortune Child Support
A substantial increase in the payor‟s income is itself sufficient to constitute a change
in circumstances warranting an upward modification without any demonstration of
increased need on behalf of the residential parent or the child. Miller v. Schou, 616
So.2d 436 (Fla. 1993). However, “[t]he child is only entitled to share in the good
fortune of his parent consistent with an appropriate lifestyle.” Id. at 439.
The Supreme Court elaborated on Miller in Finley v. Scott, 707 So.2d 1112 (Fla.
1998). The trial court should begin with the statutorily mandated guidelines as the
correct amount and then evaluate the statutory criteria and the needs of the child,
including age, station in life, and standard of living. The trial court is also to consider
the financial status and ability of each parent and any other relevant factors. See F.S.
61.30(1)(a).
In Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999), the district court affirmed an
order denying modification of child support based on the payor‟s income, finding that
the needs of the children were being met by the current support. “A wish for a
$300.00 baseball bat or a tuxedo for a fourteen year old as argued by Petitioner does
not establish increased need on the part of the children.” Id. at 474.
In Ferraro v. Ferraro, 971 So.2d 826 (Fla. 3d DCA 2008), the court held that the
children‟s needs were met by the $28,770 per month that the father was paying, even
though the guidelines reflected an obligation of $44,680 per month.
In Allen v. Allen, 569 So.2d 875 (Fla. 2d DCA 1990), the court held that a father‟s
receipt of a large bonus without evidence of increased needs of the child or decrease
in the mother‟s ability to pay would not justify a modification. However, in Crowley
v. Crowley, 672 So.2d 597 (Fla. 1st DCA 1996), the trial court erred by failing to
include regular bonuses paid to the husband in determining his income. The
difference appears to be whether the change is permanent in nature.
In Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997), the court held that regular
gifts from the husband‟s parents made throughout the marriage and expected to be
continued could be included in determining income for child support. However, in
Vorcheimer v. Vorcheimer, 780 So.2d 1018 (Fla. 4th DCA 2001), the same court held
that payments from the husband‟s father that were not expected to continue could
not be considered in calculating income. See also Elremmash v. Peterson, 676 So.2d
525 (Fla. 2d DCA 1996) (error to consider family gifts and loans in child support
modification); Shively v. Shively, 635 So.2d 1021 (Fla. 1st DCA 1994).
(4)
[§7.13]
Receipt Of Social Security Benefits
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Under F.S. 61.30(11)(a)2, the court may adjust the guidelines child support based on
the child‟s independent income, not including supplemental security income (SSI).
However, if the payor parent begins receiving social security benefits because of
retirement or disability that also creates a dependent benefit for the child,
modification is appropriate. Sealander v. Sealander, 789 So.2d 401 (Fla. 4th DCA
2001); Wallace v. Dept. of Revenue ex rel. Cutter, 774 So.2d 804 (Fla. 2d DCA 2000).
In Sealander, the father voluntarily retired and began receiving social security
benefits. His child also began receiving a dependent benefit of $500 per month. The
court held that the father should “have received a credit against his $300 child
support obligation for benefits paid as child support as a result of his retirement.” Id.
at 403. In calculating child support under these circumstances, the social security
benefits received by both the parent and children should be considered as income to
the parent. After guidelines support is calculated, the payee parent receives a credit
equal to the amount of the children‟s benefits. See Wallace; Williams v. Williams,
560 So.2d 308 (Fla. 1st DCA 1990).
Social security disability insurance (SSDI) payments made directly to the child because
of the child‟s disability are intended to provide additional income to a disabled child
and do not reduce the parents‟ support obligation. Ford v. Ford, 816 So.2d 1193 (Fla.
4th DCA 2002); Sealander. However, if the child receives SSDI payments because of a
parent‟s disability, these payments are credited to the parent‟s support obligation.
Ford.
b. [§7.14]
Permanent Change
If a payor seeks to decrease child support based on a decreased ability to pay, the
decrease must be significant, material, involuntary, and permanent. Overbey v.
Overbey, 698 So.2d 811 (Fla. 1997); Swanson v. Swanson, 888 So.2d 117 (Fla. 4th DCA
2004); Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA 1991); Deatherage v.
Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981). Permanency was discussed in
Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979), in which the payor was unable
to meet his child support obligation because of a union strike. The court found that
change to be temporary and refused to modify child support. In Ronan v. Ronan, 621
So.2d 518 (Fla. 1st DCA 1993), the husband‟s employment was terminated
involuntarily and he had been unable to find new employment. The court held that it
was an abuse of discretion for the trial court to refuse to temporarily suspend his
support obligation.
The issue of permanency was also dispositive in Manning v. Manning, 600 So.2d 1274
(Fla. 1st DCA 1992). The court held that the firing of the former husband and his
subsequent acceptance of a lower-paying job did not demonstrate that the reduction
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in his income was permanent. The court, however, ruled that the former husband was
entitled to “emergency” or “temporary” relief until he could “reestablish himself.”
Id. at 1276. A year later, the same court held, in Pitts v. Pitts, 626 So.2d 278, 283
(Fla. 1st DCA 1993), that a “healthy, able-bodied 32-year old heavy equipment
operator, with a good work record and a history of steady employment as a supervisor
in his field” had not suffered a “permanent” reduction in income. As such, he was
entitled to only a temporary reduction in child support. On the other hand, in
Freeman v. Freeman, 615 So.2d 225, 226 (Fla. 5th DCA 1993), another appellate court
held that “permanent” does not mean “forever”; rather, it only means “not
temporary or transient” but encompassing “an extended period of time.” By way of
example, the court suggested that a change lasting one year or more would be a
sufficient demonstration of permanency. See also Perez v. Perez, 973 So.2d 1227 (Fla.
4th DCA 2008).
In cases such as those above, the court may order an unemployed parent to perform a
documented work search to demonstrate willingness to work and the unavailability of
suitable employment. If unemployment or underemployment is the result of a
parent‟s lack of effort, the court may find that the original support amount should be
continued.
In Garcia v. Gonzalez, 654 So.2d 1064 (Fla. 3d DCA 1995), the court dealt with the
ultimate issue of permanency. In a paternity case, the father died three years after
executing an agreement to support the child until she reached majority. The mother
claimed against the father‟s estate, and the court ordered the estate to continue the
payments. In affirming, the District Court of Appeal, Third District, found that
although the “obligation of a father to support a child normally terminates upon the
death of the father,” an express agreement can abrogate the common-law rule. Id. at
1065. Under F.S. 61.13(1)(c), the court may also order the payor to purchase life
insurance or a bond to secure payments of child support.
c. [§7.15]
Voluntary Change
“The purpose of requiring that a change in circumstance be involuntary to modify
support is to ensure that the duty to furnish adequate support is not deliberately
avoided.” Vazquez v. Vazquez, 922 So.2d 368, 372 (Fla. 4th DCA 2006). See Smith v.
Smith, 737 So.2d 641 (Fla. 1st DCA 1999) (retirement); Burdette v. Burdette, 681
So.2d 862 (Fla. 5th DCA 1996) (job change); Dean v. Dean, 503 So.2d 439 (Fla. 4th
DCA 1987) (remarriage and birth of subsequent children); Vanden Bosch v. Elkins, 419
So.2d 1127 (Fla. 3d DCA 1982) (payee‟s remarriage, sale of marital home, and
purchase of more expensive home); In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st
DCA 1977) (remarriage and job change). Similarly, self-induced income tax problems
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leading to a decreased ability to pay did not support a downward modification in
Conness v. Conness, 607 So.2d 493 (Fla. 4th DCA 1992).
In Overbey v. Overbey, 698 So.2d 811 (Fla. 1997), the court considered a father‟s
request for a downward modification in child support while he attended law school.
The court rejected the voluntary/involuntary analysis applied by the lower court and
held that the best interests of the child should control. See discussion in §7.8.
Involuntary changes will generally support a modification of child support. In Hackney
v. Hackney, 560 So.2d 423 (Fla. 4th DCA 1990), the father quit his job when faced
with the choice of quitting or being fired. Under the circumstances of that case, the
court held that his resignation was not a voluntary change and his unemployment
would constitute grounds for modification. In Levin v. Levin, 613 So.2d 556 (Fla. 4th
DCA 1993), the trial court reduced the husband‟s support obligation after a drastic,
involuntary decrease in his income. The appellate court reversed and remanded,
however, because the reduced amount was still beyond the husband‟s ability to pay.
Even if a payor is dismissed, he or she must still make efforts to find similarly paying
employment. See Abdella v. Abdella, 693 So.2d 637 (Fla. 3d DCA 1997).
A strong showing is required before a downward modification will be granted based on
an alleged change in economic or market conditions, especially when the payor is
operating in an entrepreneurial capacity. This is because one so engaged can easily
record drastic fluctuations in income by the amount of initiative employed in securing
and accepting work or business. See Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA
1991); O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981).
“„[A]bsent physical or mental incapacity or other circumstances over which the parent
has no control,‟” a parent is expected to be fully employed. Smith, 737 So.2d at 645,
quoting F.S. 61.30(2)(b) (1997). Employment potential is generally measured by
recent employment history, occupational qualifications, and prevailing earnings level
in the community. “„A claim that a payor spouse has arranged his financial affairs or
employment situation so as to short change the payee spouse is a valid matter to be
explored in determining the payor‟s real ability to pay.‟” Saporta v. Saporta, 766
So.2d 379, 382 (Fla. 3d DCA 2000), quoting Smith, 737 So.2d at 644. The payor‟s living
expenses and lifestyle are also factors for the court‟s consideration. Beniaminov v.
Beniaminov, 789 So.2d 494 (Fla. 3d DCA 2001).
In Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992), the court stated that “[v]oluntary
retirement cannot be considered a change of circumstances which would warrant a
modification of child support.”
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d. [§7.16]
Incarcerated Parent
There previously was a conflict on whether an incarcerated parent should be
obligated to pay child support. See, e.g., Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA
1996); Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998), abrogated 846 So.2d
486. This conflict was resolved by the Florida Supreme Court in Dept. of Revenue v.
Jackson, 846 So.2d 486 (Fla. 2003), which set forth the following procedure to be
followed when a payor is incarcerated. A parent seeking modification of child support
payments because he or she is incarcerated may file a petition for modification. The
trial court will hold the petition in abeyance and place the matter on its inactive
calendar for the term of the payor‟s incarceration until a time when a thorough
evaluation of the parent‟s ability to pay may be conducted. After the payor‟s release,
the court is to conduct a hearing and, after considering the parties‟ current
situations, is to develop a payment plan for both past and future support. Although
the amount of unpaid support that accumulated while the payor was incarcerated
should not be reduced, its payment may be restructured to enhance the likelihood
that it will eventually be paid, even if payments continue beyond the child‟s majority.
See McCall v. Martin, 34 So.3d 121 (Fla. 4th DCA 2010), for a case applying Jackson.
e. Challenge To Paternity
(1)
[§7.17]
In General
The availability and accuracy of genetic testing to determine paternity has created
new legal issues. If nonpaternity is successfully proved in a dissolution of marriage
proceeding, case law has held that the marital father may be relieved of his duty to
support a child born during the marriage. Daniel v. Daniel, 695 So.2d 1253 (Fla. 1997).
But see Dept. of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.
1993) (requirements for paternity testing when there is legal father).
Previously, a final judgment of dissolution that established a child support obligation
for the husband was a “final determination of paternity” and could only be challenged
under Fla.R.Civ.P. 1.540. D.F. v. Dept. of Revenue ex rel. L.F., 823 So.2d 97 (Fla.
2002). However, F.S. 742.18, enacted in 2006, creates a procedure by which a man
may disestablish paternity and terminate a child support obligation when he receives
“newly discovered evidence” that he is not the biological father of the child. See
Johnston v. Johnston, 979 So.2d 337 (Fla. 1st DCA 2008).
In M.A.F. v. G.L.K., 573 So.2d 862 (Fla. 1st DCA 1990), the court held that the wife‟s
concealment during their dissolution proceedings of the fact that the husband was not
the father of the children born during the marriage constituted extrinsic fraud, was
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collateral to the proceeding, and entitled the husband to challenge paternity and
child support more than one year after the dissolution judgment because paternity
was not at issue in the dissolution of marriage. However, in State, Dept. of Revenue
v. Speights, 864 So.2d 73 (Fla. 1st DCA 2003), a paternity case, the court held that
the mother‟s misrepresentation of the child‟s paternity was central rather than
collateral to the case and constituted intrinsic fraud because paternity was the
central issue.
(2)
[§7.18]
Disestablishment Of Paternity
Chapter 2006-265, Laws of Florida, created F.S. 742.18, allowing a man to disestablish
paternity and terminate a previously established child support obligation if he is not
the biological father of the child.
This procedure requires the following:

Filing of a petition in the circuit court and service on all interested parties,
including the Department of Revenue, if applicable, and the mother or legal
guardian
or
custodian
of
the
child.
F.S.
742.18(1).
See
Fla.Sup.Ct.App.Fam.L. Form 12.951(a).

Filing of an affidavit by the petitioner that newly discovered evidence
relating to paternity has come to the petitioner‟s attention since the
establishment of paternity or support. F.S. 742.18(1)(a).

Submission of the results of scientific tests conducted within 90 days of
filing showing that the petitioner cannot be the biological father of the
child or an affidavit stating that the petitioner did not have access to the
child to have testing performed. F.S. 742.18(1)(b).

Filing of an affidavit stating that the petitioner is current on all child
support obligations and that any delinquency is due to inability to pay for
just cause. F.S. 742.18(1)(c).
To relieve an obligor of the duty to pay child support, the court must find all of the
following:

Newly discovered evidence has come to the petitioner‟s knowledge since
entry of the previous order or judgment.

Scientific tests were properly conducted.

The payor is current in all child support obligations or has substantially
complied and any arrearage is for just cause.
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
The child has not been adopted by the payor.

The child was not conceived by artificial insemination while the payor and
mother were married.

The payor has not prevented the biological father from asserting his
parental rights.

The child was under age 18 when the petition was filed.
F.S. 742.18(2). See Form 12.951(b) for an order disestablishing paternity.
Relief will be denied, even if the above conditions are met, if the payor engaged in
any of the following after learning he was not the biological father of the child:

The payor married the mother in accordance with F.S. 742.091 and
voluntarily assumed parental responsibilities and a duty of support.

The payor acknowledged paternity in a sworn statement.

The payor agreed to be named as the father on the child‟s birth certificate.

The payor voluntarily promised in writing to support the child and is
required to do so on that basis.

The payor received notice from a state agency or court to submit to
paternity testing and ignored it.

The payor signed a voluntary acknowledgment of paternity as provided by
F.S. 742.10(4).
F.S. 742.18(3).
Any relief granted is limited to prospective child support payments and termination of
parental rights, custody, and visitation. F.S. 742.18(5). Child support may not be
suspended while the petition is pending except for “good cause shown.” F.S.
742.18(6). Entry of an order granting the petition does not affect the legitimacy of a
child born during a lawful marriage. F.S. 742.18(9).
In Johnston v. Johnston, 979 So.2d 337 (Fla. 1st DCA 2008), the trial court dismissed
the father‟s petition to disestablish paternity under F.S. 742.18 under the authority of
Parker v. Parker, 950 So.2d 388 (Fla. 2007). The appellate court reversed, finding
that F.S. 742.18 does not require a petitioner to prove fraud or duress to disestablish
paternity and that the statute “created a new cause of action in situations where a
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father has „newly discovered evidence‟ rather than allegations of fraud, as previously
required.” Johnston, 979 So.2d at 338.
3.
[§7.19]
Payee
Increased or decreased ability of the primary residential parent to contribute to the
needs of the child may also sustain a modification of child support. Arnold v. Miller,
404 So.2d 1166 (Fla. 1st DCA 1981). See Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA
2004); Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973). Furthermore, F.S.
61.30(11)(b)7 provides:
The court may deviate from the child support amount calculated
pursuant to subparagraph 6. based upon the deviation factors in
paragraph (a), as well as the obligee parent‟s low income and ability to
maintain the basic necessities of the home for the child, the likelihood
that either parent will actually exercise the time-sharing schedule set
forth in the parenting plan granted by the court, and whether all of the
children are exercising the same time-sharing schedule.
Changes in financial circumstances must generally be involuntary if support is to be
modified. A voluntary reduction of income by the obligee parent, however, may
justify, under certain circumstances, a modification of support. A parent, for
example, who voluntarily becomes unemployed would generally have income imputed
and be unable to receive an upward modification. F.S. 61.30(2)(b). See Harbus v.
Harbus, 874 So.2d 1230 (Fla. 4th DCA 2004); Caskey v. Pratt, 540 So.2d 253 (Fla. 4th
DCA 1989). Likewise, voluntary underemployment may support imputation of income
to a payee. Young v. Taubman, 855 So.2d 184 (Fla. 4th DCA 2003). Under F.S.
61.30(2)(b), however, the court may decline to impute income to a parent who stays
home to care for a child. In such a case, the parent‟s ability to support the child
would be reduced and an increase might be justified. See F.S. 61.30(2)(b)1–(2)(b)2
regarding requirements for imputation of income.
The court could not simply deny a claim for upward modification because it found
that the primary residential parent was “underemployed” in Garone v. Goller, 878
So.2d 430 (Fla. 3d DCA 2004). In State, Dept. of Revenue ex rel. Young v. Sumblin,
675 So.2d 691 (Fla. 1st DCA 1996), the court held that rather than simply denying
modification, the trial court should have determined whether it was appropriate to
impute income to the residential parent, taking into account whether it was
necessary for her to be at home with the child. If it was deemed appropriate, a
specific amount would need to be imputed and used to calculate child support under
the guidelines.
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Imputation of income “must be supported by specific findings of fact indicating the
amount and source of the imputed income.” Zubkin v. Zubkin, 823 So.2d 870, 871
(Fla. 5th DCA 2002). See F.S. 61.30(2)(b)1b. Other factors to be considered include
hourly wage, number of hours worked, and availability of jobs in the community. See,
e.g., Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999); Wollschlager v. Veal, 601
So.2d 274 (Fla. 1st DCA 1992), disapproved on other grounds 698 So.2d 811. If income
is to be imputed, the court may not, without special circumstances, do so at a level
greater than that which the party has previously earned. Tarnawski v. Tarnawski, 851
So.2d 239 (Fla. 4th DCA 2003); Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA
1996); Stodtko v. Stodtko, 636 So.2d 814 (Fla. 3d DCA 1994).
As described in §7.7, the child support guidelines may also serve as a basis for
modification of child support.
4.
[§7.20]
Remarriage
Remarriage generally is not relevant to a modification action and it is usually error for
the court to consider the income of the new spouse in determining need and ability to
pay. Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1999); Rosales v. Rosales, 599
So.2d 779 (Fla. 3d DCA 1992); Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988).
The same is true of the income of a “roommate” or new companion. Sullivan v.
Sullivan, 593 So.2d 1153 (Fla. 4th DCA 1992). However, the trial court may consider a
roommate‟s contribution to living expenses as evidence of a former spouse‟s true
living expenses. Singleton v. Singleton, 696 So.2d 1338 (Fla. 4th DCA 1997); McCall v.
McCall, 616 So.2d 607 (Fla. 2d DCA 1993). It is also error for the court to increase one
party‟s income based on “in-kind contributions” from a new spouse. Hinton. See F.S.
61.30(2)(a)13.
This general rule has been abrogated in a few limited circumstances. When there is
clear and convincing evidence that the remarried parent is unable to discharge the
duty of support from his or her own funds, the court may permit discovery of the new
spouse‟s finances. Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974). See also
Hayden v. Hayden, 662 So.2d 713 (Fla. 4th DCA 1995); Young v. Young, 465 So.2d 652
(Fla. 1st DCA 1985). In addition, if a recipient can demonstrate that the payor has
deliberately limited income or divested himself or herself of assets to avoid a support
obligation and is living off the new spouse‟s income, discovery will be allowed.
Hayden; Harman. See also Poquette v. Poquette, 425 So.2d 1203 (Fla. 2d DCA 1983).
F.S. 61.30(12)(b) provides that if a payor/parent raises the existence of subsequent
children as a basis for deviation from the guidelines support amount on an upward
modification, the income of the other parent of the subsequent children will be
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considered in determining whether there is a basis for deviation from the guidelines
amount. See further discussion in §7.29.
5.
Child
a. [§7.21]
In General
There are innumerable changes that could occur with respect to a child that might
justify modification of child support. Obviously, increased or decreased needs of the
child are factors often cited to justify modification of support, but other factors may
also support modification. The child reaching majority or being emancipated is often
grounds for modification. F.S. 61.13(1)(a). Effective July 1, 2010, all child support
and income deduction orders must state that child support terminates on the child‟s
18th birthday unless F.S. 743.07(2) applies or the parties‟ agreement provides
otherwise. F.S. 61.13(1)(a)1a. The child‟s death terminates the obligation to pay
support. Id. Modification is also permitted when F.S. 743.07(2) (continued support
beyond age 18) applies, the child is emancipated or marries, or the child enters the
military service. F.S. 61.13(1)(a)2.
b. [§7.22]
Needs
The claimed change in the circumstances of the child is usually that of increased or
decreased need. When the issue is increased need, most often it is related to the age
of the child. See Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1988), receded
from on other grounds 821 So.2d 1088, and the cases cited therein. It may be proper
for the court to take judicial notice that a child‟s needs increase with age. This
judicial notice, and the fact that the husband‟s income had increased, were held to
be sufficient demonstration of an increased need to justify modification of child
support in Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983). Three years later,
however, that same court found that a modification based on inflation and the
increased ages of the children was not justified in Boylan v. Cooper, 482 So.2d 584
(Fla. 5th DCA 1986). The better practice, therefore, is to document with specific
evidence and testimony precisely how the needs of the child have increased with age.
In Thyrre v. Thyrre, 963 So. 2d 859 (Fla. 2d DCA 2007), the court held that the obligor
spouse was still required to pay child support according to the guidelines, even though
the parties‟ autistic child had a trust fund to help with expenses. In Thyrre, the
receiving spouse testified that child‟s expenses were not completely met by the trust
fund.
c. [§7.23]
Majority
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The statutes providing for modification of child support identify the child‟s
attainment of majority as a ground to modify child support. F.S. 61.13(1)(a)2.
Effective July 1, 2010, all child support and income deduction orders must state that
child support terminates on the child‟s 18th birthday unless F.S. 743.07(2) applies or
the parties‟ agreement provides otherwise. Id. However, the payor cannot unilaterally
reduce child support payments as each child reaches majority if support in the court‟s
order is in a single amount. The payor must seek modification as each child reaches
majority, because the court cannot terminate the support any earlier than the date of
the petition. See Dept. of Revenue ex rel. Ortega v. Ortega, 948 So.2d 855 (Fla. 3d
DCA 2007); Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001); Dept. of Revenue ex
rel. Hall v. Hall, 699 So.2d 1036 (Fla. 5th DCA 1997). Effective July 1, 2010, all child
support or income deduction orders must contain a schedule showing how child
support will be reduced as each child is no longer eligible to receive support. F.S.
61.13(1)(a)1b. See Fla.Fam.L.R.P. Form 12.996(a), Income Deduction Order, for an
example.
F.S. 743.07(2) permits child support to be continued until age 19 if the child is
dependent in fact, still in high school, and performing in good faith with a reasonable
expectation of graduation before age 19. The requirement that the child “graduate”
by age 19 has been construed liberally to “mitigate potential harm to children.” Boot
v. Sapp, 714 So.2d 579, 580 (Fla. 4th DCA 1998). In Wattenbarger v. Wattenbarger,
767 So.2d 1172 (Fla. 2000), the Supreme Court approved Boot and reversed a district
court order denying extension of child support to a child who turned 19 eleven days
before graduation. In Ratcliff v. Ratcliff, 679 So.2d 1279 (Fla. 1st DCA 1996), the
court reversed a final judgment provision continuing child support until the child
reached age 19 or graduated from high school. The court held that child support
should be terminated at age 18 or the child‟s emancipation. If F.S. 743.07(2) later
became applicable, a petition for modification could be filed. See also Hunter v.
Hunter, 626 So.2d 1069 (Fla. 1st DCA 1993).
F.S. 743.07(2) also permits continuation of support beyond majority when the child‟s
dependency is because of “a mental or physical incapacity which began prior to such
person reaching majority.” See Perla v. Perla, 58 So.2d 689 (Fla. 1952). The right to
support in this case belongs to the child and not to the parent. Hastings v. Hastings,
841 So.2d 484 (Fla. 3d DCA 2003). In Taylor v. Bonsall, 875 So.2d 705 (Fla. 5th DCA
2004), the disability of the parties‟ child was known at the time of the dissolution of
marriage. The parties‟ agreement provided that child support terminated as each
child reached age 18, unless an order extending support was issued before the child‟s
18th birthday. The mother petitioned to extend support for the disabled child before
the child‟s 18th birthday, but the order was not entered until after the child turned
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18. The father appealed and the court enforced the agreement and reversed the trial
court, noting that the now-adult child could file a petition for support under the
statute.
F.S. 743.07(2) was last amended in 1991. The court in Walworth v. Klauder, 615 So.2d
219 (Fla. 5th DCA 1993), explains the relative history of this subsection. Cases prior to
Klauder may provide a misleading view of the present state of the law, but do contain
policy considerations.
Family law practitioners seeking to modify child support should look closely at how
the child support provision in the original settlement agreement or final judgment are
worded. In Karten v. Karten, 983 So.2d 17 (Fla. 3d DCA 2008), the court held that
when the child support order provided that the child support obligation would
terminate as “each child” attained the age of 18, a portion of the father‟s child
support obligation should automatically terminate as each child reached age 18. The
“each child” language was held to mean that this was an allocated award and the
reduction was retroactive to the date each child became 18. Effective July 1, 2010,
F.S. 61.13(1)(a)1b requires that the child support or income deduction order provide
for reduction of child support as each child is no longer eligible to receive support.
See Form 12.996(a).
The court in Karnbach v. Karnbach, 971 So.2d 1031 (Fla. 4th DCA 2008), held that
when the parties‟ agreement did not specify how much support would be reduced
when one child reached the age of majority, the child support should be recalculated,
rather than automatically proportionally reduced. The court reached this conclusion
even though the language of the parties‟ agreement implied an allocated child
support award.
In Ortega, the court described the difference between unallocated and allocated
child support as follows: “[A]n unallocated child support award, unlike an allocated
award, does not terminate by operation of law when a child attains majority but
terminates at a later (or other) date either agreed upon or ordered.” Id. at 858. The
court further held that the parent who is making a lump sum payment for more than
one child must continue to make the full support payment until he or she successfully
obtains modification after a child reaches majority and that the payments vest when
they are due.
The District Court of Appeal, Fourth District, has taken two slightly different positions
regarding child support after a child turns 18, but before the child graduates from
high school. In Rose v. Rose, 8 So.3d 1251 (Fla. 4th DCA 2009), the court enforced a
marital settlement agreement that required the father to pay child support for each
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minor child until they “reach the age of majority, marry, die, graduate from high
school or becomes self supporting, whichever occurs first” (emphasis in original). Id.
at 1252. One of the children reached the age of majority while in her senior year of
high school. The court held that the parties were bound by the language in their
agreement, and that the father‟s child support obligation ended when the child
turned 18. In Moniz v. Moniz, 979 So.2d 1140 (Fla. 4th DCA 2008), the court held that
the trial court should either award child support until the date a child graduates or
set forth findings of fact explaining why such relief is denied, even though the
parties‟ child turned 18 before graduating from high school.
d. [§7.24]
Behavior
It has been held that a child who has reached the age of discretion may be so
“disrespectful and contumacious” of the payor as to justify suspension of the support
obligation during the period of the child‟s willful misconduct. Riley v. Connor, 509
So.2d 1177, 1178 (Fla. 5th DCA 1987). The District Court of Appeal, Second District,
held to the contrary in Carroll v. Carroll, 593 So.2d 1131, 1133 (Fla. 2d DCA 1992):
“Unlike the Fifth District court, we are unwilling to say that conduct by a child, not
shown to be orchestrated by one of the parents, should relieve a parent of his or her
duty to support the child.” See also Spalding v. Spalding, 907 So.2d 1270 (Fla. 5th
DCA 2005) (trial court erred in suspending support until child developed meaningful
relationship with father when parties‟ agreement specified there would be no
visitation). The practitioner should not rely on using the child‟s behavior to support a
modification of support. This would appear to go against the public policy of Florida.
e. [§7.25]
Change In Residence
When a child has moved out of the home of the payee parent, that fact may
constitute a change in circumstances justifying reduction of the child support paid to
that parent. See Phillips v. Phillips, 449 So.2d 1310 (Fla. 5th DCA 1984); Broudy v.
Broudy, 423 So.2d 504 (Fla. 3d DCA 1982). A child returning to the home of a parent
so that the parent now had two minor children in her home instead of one constituted
“prima facie evidence of a substantial change of circumstances” in Hillman v.
Hillman, 567 So.2d 1066, 1067 (Fla. 2d DCA 1990). See also Dept. of Revenue ex rel.
Baculik v. Baculik, 719 So.2d 1008 (Fla. 5th DCA 1998).
f. [§7.26]
Emancipation
The child‟s emancipation supports termination of support. F.S. 61.13(1)(a)2. A payor‟s
belief that the child has become “emancipated,” however, does not justify
termination of the support obligation without a petition and order of modification.
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Alpert v. Alpert, 479 So.2d 875 (Fla. 3d DCA 1985). Like majority, emancipation does
not automatically modify a child support obligation. State, Dept. of Revenue ex rel.
Orr v. Orr, 737 So.2d 652 (Fla. 1st DCA 1999); Doerrfeld v. Konz, 524 So.2d 1115 (Fla.
2d DCA 1988).
In Karnbach v. Karnbach, 971 So.2d 1031 (Fla. 4th DCA 2008), the court held that
courts should look for specific and unambiguous language in the parties‟ agreement
regarding whether child support should be proportionally reduced or recalculated
when one child becomes emancipated.
g. [§7.27]
Income Of Child
Under F.S. 61.30(11)(a)2, the court may consider the child‟s independent income as a
factor to support deviation from the child support guidelines. Case law has held that
income earned through a child‟s employment does not decrease the child‟s needs nor
justify a reduction in child support. Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA
1982). However, income earned by the child from sources other than employment
may be taken into account when determining the needs of the child. Bordman v.
Bordman, 231 So.2d 543 (Fla. 3d DCA 1970) (trust payments to child). Moore v.
Moore, 542 So.2d 1026 (Fla. 3d DCA 1989), also appears to suggest that an award to
the child in a negligence action, received after the child support obligation has been
fixed, may constitute a change in circumstances sufficient to support modification.
But see Jobe v. Jobe, 934 So.2d 576 (Fla. 1st DCA 2006) (error to modify support
based on child‟s receipt of lawsuit settlement).
See §7.13 regarding social security benefits received by the child.
6.
[§7.28]
Effect Of Inflation
Inflation is a factor that must be taken into account when determining whether there
has been a change in financial circumstances. Brooks v. Brooks, 423 So.2d 995 (Fla. 3d
DCA 1982); Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977). This factor affects both
parties, and the court must measure the impact that inflation has had on both the
payor and the recipient. Petersen v. Petersen, 392 So.2d 298 (Fla. 4th DCA 1981). As
inflation erodes the buying power of the original child support, it also erodes the
buying power of the payor‟s income, unless the payor has had income increases that
keep pace with or exceed inflation.
In Boylan v. Cooper, 482 So.2d 584 (Fla. 5th DCA 1986), the court held that the
existence of inflation alone was not enough to justify an increase in support. The
impact of inflation on the petitioner must be shown to be unique. See Waldman v.
Waldman, 520 So.2d 87 (Fla. 3d DCA 1988), receded from on other grounds 821 So.2d
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1088. The court may take judicial notice of the effect of inflation. See F.S.
90.202(12). If the case justifies the expenses, it may be useful to have an accountant
or other expert witness testify to establish the specific impact that inflation has had
on the buying power of the recipient.
This ground is likely to be less persuasive now that the guidelines schedule in F.S.
61.30 governs child support in all cases. Arguably, inflation is one of the factors to be
considered by the legislature in its regular review of the guidelines. See F.S.
61.30(16).
7.
[§7.29]
Support Of Subsequent Children
A payor‟s obligation to support children from a subsequent marriage or relationship
may not be the basis for decreasing support to the children of a prior marriage or
relationship. F.S. 61.30(12)(c); Mena v. Mena, 967 So.2d 360 (Fla. 4th DCA 2007);
Pohlmann v. Pohlmann, 703 So.2d 1121 (Fla. 5th DCA 1998); Reed v. Reed, 597 So.2d
936 (Fla. 1st DCA 1992). F.S. 61.30(12)(c) specifically provides that the issue of
subsequent children may be raised only in a proceeding for an upward modification
and may not be applied to justify a decrease in an existing award. F.S. 61.30(12)(b)
also establishes a general rule that the existence of subsequent children generally
should not be considered by the court as a basis for disregarding the amount provided
in the guidelines schedule. The court interpreted that provision in Robinson v.
Robinson, 657 So.2d 958, 960 (Fla. 1st DCA 1995), and found it to be “a legislative
recognition that parties should be aware of their support obligation to existing
children, and should take that into account prior to assuming further obligation.” The
statute was found constitutional in Pohlmann.
The courts have responded differently to the issue of support of children born before
either the child in question was born, or the proceeding to establish support for that
child began. In Speed v. Florida, Dept. of Revenue ex rel. Nelson, 749 So.2d 510 (Fla.
2d DCA 1999), the father had married and fathered two children before a paternity
proceeding to establish his obligation to support his child by Ms. Nelson began. The
appellate court remanded the case to the trial court with instructions to consider the
father‟s obligation to support his two afterborn children in calculating child support.
The court may also use other statutory grounds to include support of other children in
its child support calculations. In State, Dept. of Revenue ex rel. Marshall v. Smith,
716 So.2d 333 (Fla. 2d DCA 1998), the trial court, in calculating child support for an
out-of-wedlock child, deducted from the father‟s income the amount of child support
he would be required to pay under the guidelines for the two children previously born
of his intact marriage. The trial court noted that under F.S. 61.30(3)(f), the father
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would be entitled to a deduction from gross income for “[c]ourt-ordered support for
other children which is actually paid,” Smith, 716 So.2d at 334, and concluded that
the children of his intact marriage were not less deserving of his support.
If a payor parent raises the existence of subsequent children in a request for a
deviation from the guidelines, the income of the subsequent children‟s other parent
must be considered. F.S. 61.30(12)(b). See Flanagan v. Flanagan, 673 So.2d 894 (Fla.
2d DCA 1996). In State, Dept. of Revenue ex rel. Cornejo v. Martinez, 744 So.2d 580
(Fla. 2d DCA 1999), however, the father raised the existence of three prior-born
children in a child support modification proceeding. The trial court imputed income to
the children‟s mother under F.S. 61.30(12). The appellate court reversed because
Martinez raised only the existence of his children born before the birth of the child
who was the subject of the proceedings. The court also noted that the wife had never
worked regularly and was at home caring for six children.
In exceptional circumstances, the court may consider a subsequent child‟s needs in
setting child support. In Gebauer v. State, Dept. of Revenue ex rel. Hurlburt, 706
So.2d 407 (Fla. 4th DCA 1998), the severe illness of the mother‟s subsequent child,
which forced the mother to quit work and stay home to care for the child, was found
to justify a downward modification of her child support obligation.
If a parent has a second job primarily to allow him or her to support
subsequent children, F.S. 61.30(12)(a) allows the court to disregard that income in
setting support.
8.
[§7.30]
Substantial Shared Parenting Time
Under F.S. 61.30(11)(b), the court must adjust the child support guidelines amount
when the parenting plan provides for the child to spend “a substantial amount of time
with each parent.” See Hecht v. Hecht, 908 So.2d 547 (Fla. 1st DCA 2005); Migliore v.
Harris, 848 So.2d 1250 (Fla. 4th DCA 2003) (court required to apply statute even when
father had not exercised amount of visitation allotted to him); Rainsberger v.
Rainsberger, 819 So.2d 275 (Fla. 2d DCA 2002). Even if a parent does not request an
adjustment for substantial parenting time, the court must apply the statute in
calculating the child support guidelines amount. Santiago v. Santiago, 830 So.2d 922
(Fla. 4th DCA 2002). Effective January 1, 2010, the statutory definition of “substantial
amount of time” was changed from 40% to 20% of the overnights in a year. F.S.
61.30(11)(b)8. A formula for calculating the adjustment in support is found in F.S.
61.30(11)(b)1–(11)(b)7. See also Fla.Fam.L.R.P. Form 12.902(e), the child support
guidelines worksheet.
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The statutory amendment defining “substantial amount of time” was enacted in 2001
and has been held to be remedial in nature and applicable retroactively. Jensen v.
Jensen, 824 So.2d 315 (Fla. 1st DCA 2002); Arze v. Sadough-Arze, 789 So.2d 1141 (Fla.
4th DCA 2001). The court must apply the child support guidelines as amended, if the
amendment becomes effective while the case is pending. Rainsberger. In modifying
support to comply with the statute, the court should make the adjustment retroactive
to the date the time-sharing schedule was effective. Sichewski v. Sichewski, 862
So.2d 850 (Fla. 4th DCA 2003). But see Keeley v. Keeley, 899 So.2d 387 (Fla. 2d DCA
2005) (father not entitled to retroactive reduction when he did not actually exercise
visitation allotted to him).
Enactment of the statute has produced requests for modification by payors. In
Rubman v. Honig, 817 So.2d 1001 (Fla. 4th DCA 2002), the father initially sought a
modification of the parties‟ final judgment of dissolution of marriage following the
mother‟s remarriage. An order based on a mediated agreement was entered granting
him increased visitation, but not modifying child support. Ten days later, the father
petitioned to lower his child support obligation based on the increased visitation. The
trial court denied the motion and the appellate court affirmed, because the change in
circumstances relied on to support the modification was contemplated at the time the
order altering the visitation schedule was entered. The appellate court noted that it
was “unseemly, to say the least, for the father to have talked the mother into
increased visitation without a change in child support, and then to have sought
decreased child support based on the increased visitation.” Id. at 1001. See also
Catalano v. Catalano, 787 So.2d 243 (Fla. 2d DCA 2001).
A parent‟s failure to actually exercise at least 40% of overnights supported a
modification of child support, retroactive to the date the parent first failed to
regularly exercise time-sharing of at least 40% in Buhler v. Buhler, 913 So.2d 767 (Fla.
5th DCA 2005).
In Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th DCA 2003), the father petitioned for a
modification of child support, alleging a reduction in his income, and requested that
F.S. 61.30(11)(b) be followed. The court distinguished this case from cases such as
Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997), which hold that modification of
support is precluded when the only ground is that application of the guidelines would
result in decreased payments. Because the court “found an independent basis for its
determination that the circumstances had changed,” it was required to consider all
statutory criteria, including parenting time. Seiberlich, 859 So.2d at 571.
Even if the time-sharing schedule does not meet the 20% requirement, the court may
deviate from the guidelines based on the extent of time-sharing under F.S.
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61.30(11)(a)10, when it makes specific written findings of fact regarding the reasons
for the deviation. See, e.g., Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003).
D.
[§7.31]
Support Set By Agreement
Under F.S. 61.14(7), the proof required to modify an existing order of support based
on an agreement of the parties is the same as the proof required to modify an order
determined by the court. However, in Overbey v. Overbey, 698 So.2d 811, 814 (Fla.
1997), the court stated that when “child support was based on an agreement by the
parties that was subsequently incorporated into an order, a heavier burden rests on
the party seeking a reduction than would otherwise be required” (emphasis added).
See also Knight v. Knight, 702 So.2d 242, 243 (Fla. 4th DCA 1997) (“appears that the
supreme court has decided that section 61.14(7) does not apply to a petition to
reduce child support”).
Although an agreement not to seek modification is generally unenforceable, a
provision in an agreement allowing modification under the guidelines without a
showing of changed circumstances was approved in Ballantyne v. Ballantyne, 666
So.2d 957 (Fla. 1st DCA 1996).
In Lester v. Lester, 736 So.2d 1257 (Fla. 4th DCA 1999), the parties‟ child support
obligations and provisions for further modifications were set by agreement. Several
years later, the parties orally agreed that the husband would assume responsibility for
paying the children‟s private school tuition instead of the agreed-on modification. The
appellate court approved this arrangement. “The fact that parents may not waive or
otherwise „contract away‟ their child‟s right to support . . . does not preclude them
from making contracts or agreements concerning their child‟s support so long as the
best interests of the child are served.” Id. at 1259. But see Budnick v. Silverman, 805
So.2d 1112 (Fla. 4th DCA 2002) (distinguishing agreement that relieved parent of
support obligation).
Parties should be careful what they include in initial settlement agreements. In Myer
v. Kaye, 990 So.2d 1253 (Fla. 4th DCA 2008), the court held that when parties agreed
to a nonmodifiable amount of child support, the payor was not entitled to a reduction
in child support when the first of the parties‟ children reached the age of majority.
Perhaps importantly, the child support amount that was required in this case was
greater than the amount provided for by child support guidelines.
E.
[§7.32]
Modification On Remand
In Stephens v. Stephens, 959 So.2d 388 (Fla. 1st DCA 2007), the appellate court held
that the trial court, on remand, had the discretion to modify the amount of child
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support ordered in the final judgment should it determine that the prior award was
erroneous or no longer appropriate.
IV.
A.
[§7.33]
PROCEDURE
Commencement Of Proceedings
Modification proceedings are commenced by the filing of a petition (not a motion) and
payment of a filing fee. Fla.Fam.L.R.P. 12.110; Fla.R.Civ.P. 1.110(h). Service of
process is also required. See Commentary to Rule 12.110. Both parties must file and
serve a financial affidavit, F.S. 61.30(14); Rule 12.285(d)(1), and a child support
guidelines worksheet, Rule 12.285(j), and comply with the mandatory disclosure
requirements of Rule 12.285, Rule 12.285(d). See Forms 12.902(b)–(c), (e). See also
§7.35. If the parenting plan or time-sharing are issues, an affidavit under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) is required. F.S. 61.522. See
Fla.Sup.Ct.App.Fam.L. Form 12.902(d). The petitioner must file a Family Law Cover
Sheet, Form 12.928. Rule 12.100(a). The petitioner must also file a notice of related
cases, Form 12.900(h), if related cases are “known or reasonably ascertainable.”
Fla.R.Jud.Admin. 2.545(d)(1).
A court may not modify support without pleadings requesting modification. Newberry
v. Newberry, 831 So.2d 749 (Fla. 5th DCA 2002). A petition to modify custody,
visitation, or parental responsibility was also insufficient alone to permit modification
of support in Wynn v. Wynn, 727 So.2d 282 (Fla. 2d DCA 1999); Defreitas v. Defreitas,
398 So.2d 991 (Fla. 4th DCA 1981). The court may not order modification on its own
motion unless proper notice is given so that the parties have a fair opportunity to be
heard. Washington v. Fudge, 616 So.2d 196 (Fla. 3d DCA 1993). The court cannot
modify child support on a party‟s motion for contempt for non-payment of child
support. McGrath v. Caron, 8 So.3d 1253 (Fla. 4th DCA 2009).
Specific allegations for modification pleadings have not been required by case law or
statute. However, a petition seeking modification must be sufficient to provide notice
and an opportunity to be heard. See Hancock v. Tipton, 732 So.2d 1246 (Fla. 4th DCA
1998). See §7.34. “Simple pleadings” demonstrating a change of circumstances have
been held sufficient for modification proceedings. Chovnick v. Chovnick, 369 So.2d
355 (Fla. 2d DCA 1979). Rule 1.110(b) states that a petition must contain a short and
plain statement of the ultimate facts showing that the pleader is entitled to relief
and demand for judgment for the relief to which the pleader is entitled. A pleading
alleging a “substantial change in circumstances” without any supporting facts would
be insufficient. No statement of jurisdiction need be included unless this is a new
proceeding.
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In Wooding v. Williams, 581 So.2d 985 (Fla. 3d DCA 1991), the payor sought a
reduction of child support. The trial court denied the reduction and increased the
support sua sponte. The appellate court reversed, holding that the increase in support
constituted a denial of due process without pleadings seeking the relief and notice
and an opportunity to be heard.
In Murphy v. Murphy, 948 So.2d 864 (Fla. 5th DCA 2007), when the payor sought a
reduction of child support, but failed to specifically allege both the former wife‟s
increased income or the parties‟ marital settlement agreement as grounds for
modification, the court held that the payor had waived those arguments in favor of
modification.
See Form 12.905(b) for a petition for modification of child support.
B.
[§7.34]
Notice And Hearing
Due process requires not only a pleading seeking modification of child support, but
also notice and an opportunity to be heard at an evidentiary hearing. State, Dept. of
Revenue v. Kiedaisch, 670 So.2d 1058 (Fla. 2d DCA 1996); Betancourt v. Sanders, 629
So.2d 272 (Fla. 1st DCA 1993); Johnson v. Johnson, 489 So.2d 1193 (Fla. 3d DCA 1986).
The notice of hearing must specifically advise the parties that the issue of
modification will be considered at the hearing. Alexander v. Alexander, 683 So.2d 172
(Fla. 1st DCA 1996); Hammond v. Hammond, 492 So.2d 837 (Fla. 5th DCA 1986). A
motion for continuance and consideration of arrearages does not meet these
requirements. Levitt v. Levitt, 454 So.2d 1070 (Fla. 2d DCA 1984); Wallace v.
Wallace, 413 So.2d 1261 (Fla. 2d DCA 1982). Similarly, notice that the court will
consider an arrearage does not put a party on notice that the court might modify the
child support order. Dept. of Health & Rehabilitative Services ex rel. Newhall v.
Smith, 605 So.2d 1335 (Fla. 5th DCA 1992). An oral motion to modify made in open
court has also been held insufficient to meet due process requirements. Purvis v.
Carver, 303 So.2d 681 (Fla. 4th DCA 1974). The court may not modify support on its
own initiative without notice to all parties, State, Dept. of Health & Rehabilitative
Services v. Cushing, 632 So.2d 285 (Fla. 2d DCA 1994), nor may support be modified at
a contempt hearing when the issue has not been pleaded or noticed, see State, Dept.
of Revenue ex rel. Arnold v. Collins, 727 So.2d 1099 (Fla. 2d DCA 1999); Dept. of
Health & Rehabilitative Services v. Ward, 560 So.2d 1381 (Fla. 5th DCA 1990).
In Bolton v. Bolton, 462 So.2d 587 (Fla. 2d DCA 1985), the trial court denied
modification after considering only the parties‟ financial affidavits. The appellate
court reversed, holding that the absence of an evidentiary hearing constituted a
denial of due process.
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The court may consider the parties‟ circumstances both at the time of the petition
and at the time of the final hearing in ruling on a request for modification. Schwartz
v. Schwartz, 712 So.2d 1243 (Fla. 4th DCA 1998).
A notice of hearing must give the respondent sufficient time to prepare for the
hearing. Young v. Young, 431 So.2d 233 (Fla. 1st DCA 1983).
In Brewer v. Solovsky, 945 So.2d 610 (Fla. 4th DCA 2006), the court held that the trial
court erred in transferring the IRS dependency exemption when neither party had
pleaded or argued the issue.
C.
[§7.35]
Discovery And Mandatory Disclosure
Every petition for establishment or modification of child support must be
accompanied by an affidavit showing the party‟s income, allowable deductions, and
net income. This affidavit is to be served with the petition. The respondent includes
his or her affidavit with the answer to the petition. F.S. 61.30(14). Fla.Fam.L.R.P.
12.285(c)(1) and (d)(1) also require the filing and exchange of financial affidavits,
Form 12.902(b) or (c), in all modification of child support cases. Although some other
mandatory disclosure requirements may be waived by the parties or the court, this
requirement may not. Rule 12.285(a)(1). If no temporary relief is sought, the
affidavits (and other mandatory disclosure) are due within 45 days of service of the
initial pleading on the respondent. Rule 12.285(b)(2).
Rule 12.285 imposes a duty of mandatory financial disclosure on both parties in
modification actions. The specific items to be exchanged are listed in Rules 12.285(c)
(temporary relief) and (d) (initial and supplemental proceedings). Parties also have a
duty to supplement disclosure and amend financial affidavits “whenever a material
change in their financial status occurs,” Rule 12.285(e)(1), or when it is determined
that a previous disclosure was not correct when made or no longer is correct, Rule
12.280(a). Each party must also file a verified certificate of compliance, Form 12.932.
Rule 12.285(i).
In any proceeding in which child support is an issue, each party must serve and file a
child support guidelines worksheet in substantial conformity with Form 12.902(e).
Unlike the other mandatory disclosure deadlines, the worksheet must be served and
filed “at or prior to a hearing” on this issue. Rule 12.285(j). This requirement may not
be waived by the parties, id., or the court, Rule 12.285(a)(1).
A full disclosure of the parties‟ financial circumstances is necessary for the court to
make a complete evaluation of their request. In Woodward v. Berkery, 714 So.2d
1027, 1036 (Fla. 4th DCA 1998), however, the court stated that the “scope of
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discovery in a modification proceeding is necessarily narrower than in a plenary
proceeding to establish the need and amount of such support in the first instance.”
Florida appellate courts have attempted to balance the extensive cost of preparing
the documents and statements sought in the name of financial disclosure against the
trial courts‟ need to have the information necessary to a proper determination. In
Miller v. Schou, 616 So.2d 436 (Fla. 1993), the court held that because an increase in
ability to pay in itself was sufficient to warrant an increase in child support, a payor‟s
financial status must be known to the court before it can determine the appropriate
amount of the increase. The court cautioned that “the filing of a modification
petition alleging good fortune does not in and of itself entitle the petitioning parent
to a wholesale foray into all of the paying parent‟s financial documents.” Thus, the
extent of discovery in modification actions was left “in the able hands of the trial
court, to determine within its discretion whether the particular disclosure is
reasonable.” Id. at 439.
In Woodward, the appellate court quashed the trial court‟s order denying the
respondent/father‟s request for a protective order to keep his discovery responses
confidential. The petitioner/mother had stated her intention to release the
documents for publication in The Miami Herald. The appellate court noted the trial
judge‟s discretion to curtail the mandatory disclosure requirements of Rule 12.285 if
good cause exists, and stated that “there is nothing in the Family Law Rules
suggesting that one of its purposes is to facilitate disclosure to the press.” Woodward,
714 So.2d at 1038.
See also Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002) (discovery of prenuptial
agreement from mother‟s remarriage denied).
See Chapter 7 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for
discussion of mandatory disclosure and other discovery.
D.
[§7.36]
Child Support Guidelines
Any action for modification of child support is governed by the child support
guidelines in F.S. 61.30. F.S. 61.30(1)(a); Seiberlich v. Wolf, 859 So.2d 570 (Fla. 5th
DCA 2003). This is so even if the initial support order was entered before the effective
date of the guidelines statute. Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994);
Martinez v. Garcia, 575 So.2d 1365 (Fla. 3d DCA 1991). Changes in the child support
guidelines amounts are remedial in nature and may be applied retroactively to cases
pending when the changes take effect. Arze v. Sadough-Arze, 789 So.2d 1141 (Fla.
4th DCA 2001); Reed v. Reed, 597 So.2d 936 (Fla. 1st DCA 1992).
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The guidelines amount “presumptively establishes” the amount the court must order
as child support for both initial and modification proceedings, F.S. 61.30(1)(a), with
allowance for certain specific adjustments. The practitioner should pay careful
attention to the statutory adjustments, because they may provide grounds for
substantial deviation. See McGhee v. Childress, 724 So.2d 196 (Fla. 1st DCA 1999).
One example of an unusual ground for deviation from the presumptive guidelines
amount was the payor‟s need to replace an expensive leg prosthesis in State, Dept. of
Revenue ex rel. Bunting v. Cain, 675 So.2d 679 (Fla. 1st DCA 1996), but specific
findings were required of the trial court. The guidelines may also be used to provide
the basis for proving a substantial change in circumstances on which modification of
an existing order may be granted, if the difference between the existing order and
the new amount is at least 15% or $50, whichever is greater. F.S. 61.30(1)(b). F.S.
61.30(1)(b), however, may not be used to justify a downward modification. Turner v.
Turner, 695 So.2d 422 (Fla. 3d DCA 1997). See discussion in §7.11.
When modifying child support, revisions to the guidelines statute should be
considered. For example, the statute was amended in 1998 to require that
noncovered medical, dental, and prescription drug expenses for the children be added
to the basic support obligation unless payment of them has been ordered separately
on a percentage basis. F.S. 61.30(8). Former F.S. 61.30(11)(g) permitted the court to
adjust child support for periods of consecutive visitation exceeding 28 days. This
provision has been repealed. In its place, F.S. 61.30(11)(b) now requires the court to
adjust a child support award when the parties‟ parenting plan will result in each child
spending a “substantial amount of time” with each parent. See §7.30 for further
discussion of substantial shared parenting time.
The court may deviate from the guidelines amount by up to 5% without making
findings. A deviation of 5% or more, however, requires written findings “explaining
why ordering payment of such guideline amount would be unjust or inappropriate.”
F.S. 61.30(1)(a); Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005); McDaniel v.
McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003).
See Chapter 12 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for
detailed discussion of the child support guidelines.
E.
[§7.37]
Temporary Relief
F.S. 61.13(1)(a) may authorize an award of temporary relief in modification actions.
In Parks v. Parks, 424 So.2d 874 (Fla. 1st DCA 1983), the opinion indicates that a
temporary support order was entered during the pendency of the modification action.
In Saulnier v. Saulnier, 425 So.2d 558, 559 (Fla. 4th DCA 1983), however, the court
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found “no authority for such award of temporary relief prior to final hearing in this
post-judgment proceeding.” The court reasoned that a temporary award subjected
the husband immediately to contempt for nonpayment of an obligation that
ultimately might be determined improper. The proper relief could be had, it stated,
by making the modification retroactive to the date of the application. See §7.51. See
also Levinson v. Levinson, 895 So.2d 432 (Fla. 4th DCA 2004).
If temporary relief is sought, mandatory disclosure must be made by the party seeking
relief with service of the notice of hearing, unless the documents have already been
served. Fla.Fam.L.R.P. 12.285(b)(1)(A). The respondent must make disclosure at least
two business days before the hearing, if service is by delivery, or seven days before, if
service is by mail. The responding party, however, is to have no less than 12 days to
respond. Rule 12.285(b)(1)(B). A child support guidelines worksheet, in substantial
conformity with Form 12.902(e), must also be served and filed by each party at or
before any hearing on child support. Rule 12.285(j). Both parties must also file a
verified certificate of compliance with mandatory disclosure, Form 12.932. Rule
12.285(i).
F.
[§7.38]
Referral To General Magistrate Or Hearing Officer
As discussed in §7.34, due process requires an evidentiary hearing on a petition for
modification of child support. Because of the congestion of the calendar in many
courts, judges often refer modification actions to general magistrates or child support
enforcement hearing officers under Fla.Fam.L.R.P. 12.490 and 12.491. A party may
object to a referral to a general magistrate by filing a written objection within 10
days of the service of the order of referral. Otherwise, consent to the referral is
implied. Rule 12.490(b)(1). There is no right to object to a referral to a support
enforcement hearing officer. Rule 12.491(d). However, the referral is limited to the
issue of child support and enforcement of alimony when there is an ongoing child
support obligation. Rule 12.491(b).
See Chapter 20 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010) for
further discussion of the general magistrate and child support enforcement hearing
officer systems in Florida.
G.
Proof
1.
[§7.39]
Burden Of Proof
The heavy burden of showing a substantial change in circumstances in a modification
of child support action lies with the party seeking the modification. Hand v. Kushmer,
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673 So.2d 926 (Fla. 2d DCA 1996); Landa v. Massie, 593 So.2d 1146 (Fla. 3d DCA 1992).
See Overbey v. Overbey, 698 So.2d 811 (Fla. 1997).
F.S. 61.30(1)(b) provides:
The guidelines may provide the basis for proving a substantial change
in circumstances upon which a modification of an existing order may be
granted.
However, the difference between the existing monthly
obligation and the amount provided for under the guidelines shall be at
least 15 percent or $50, whichever amount is greater, before the court
may find that the guidelines provide a substantial change in
circumstances.
In Turner v. Turner, 695 So.2d 422 (Fla. 3d DCA 1997), the trial court used F.S.
61.30(1)(b) as the sole reason to decrease the father‟s agreed-to child support, which
was above the guidelines amount. The appellate court reversed, holding that this use
of the statute was not within its intent. In Fleischmann v. Fleischmann, 868 So.2d 1
(Fla. 4th DCA 2004), the court held that the payor‟s child support obligation could not
be modified based solely on an amendment to the guidelines statute, when the payor
had failed to demonstrate an independent substantial change in circumstance to
justify modification.
The burden of proving a substantial change in circumstances when the support was set
by agreement, rather than determined by a court order, should be the same under
the statute. F.S. 61.14(7). Case law, however, holds that a party seeking a reduction
in child support set by agreement bears a heavier burden of proof. See Overbey;
Tietig v. Boggs, 602 So.2d 1250 (Fla. 1992); Simmons v. Simmons, 922 So.2d 373 (Fla.
4th DCA 2006); Fleischmann; Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997).
2.
Change In Circumstances
a. [§7.40]
Needs Of Child
Testimony and documentary evidence from the party paying the child‟s expenses is
the best way to show that needs have increased. Some courts will judicially notice
that increased needs are attendant to a child‟s advancing age. Wanstall v. Wanstall,
427 So.2d 353 (Fla. 5th DCA 1983). See F.S. 61.30(11)(a)5 (age of child as factor for
adjustment to guidelines amount). See also §7.21. The courts generally prefer not to
place children between their parents by compelling testimony for or against one
parent. See Fla.Fam.L.R.P. 12.407 regarding bringing children to court. See also
Chapter 11 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar CLE 10th ed. 2010).
b. [§7.41]
Ability To Pay
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“[A] substantial change in the paying parent‟s income is itself sufficient to constitute
a change in circumstances warranting an increase in child support without a
demonstration of increased need.” Garone v. Goller, 878 So.2d 430, 431 (Fla. 3d DCA
2004). See Miller v. Schou, 616 So.2d 436 (Fla. 1993).
Proof of changed ability to pay is best demonstrated using the financial records of the
payor. Comparing current financial affidavits, tax returns, or financial statements
with those in existence at the time the support obligation was initially set clearly
reflects whether a change exists. In the absence of financial statements or tax
returns, source documents such as appraisals, bills, bank records, and pay stubs may
be analyzed to create both past and present financial statements. A lack of evidence
as to the payor‟s income precludes imputing income to determine a child support
obligation. Dept. of Revenue v. Green, 711 So.2d 1245 (Fla. 5th DCA 1998). See also
Orsini v. Orsini, 909 So.2d 558 (Fla. 4th DCA 2005); Bellville v. Bellville, 763 So.2d
1076 (Fla. 4th DCA 1999) (trial court erred in imputing income solely from bank
records). Determination of ability to pay is also required before ordering payment of
arrearages.
A strong showing is required before a downward modification is granted when the
party seeking the reduction is operating in an entrepreneurial capacity. The concern
of the court is that a self-employed person can record drastic fluctuation in income
based on initiative. See Thomas v. Thomas, 589 So.2d 944 (Fla. 1st DCA 1991);
O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981). See also §§7.15 and 7.36. It is a
good idea, and not unusual for the court, to average income over three years.
The practitioner must be certain that all sources of income and assets have been
disclosed by the other party. Obviously, both sides in a modification action have
access to all discovery tools available in the Florida Rules of Civil Procedure and
Florida Family Law Rules of Procedure. See §7.35 of this chapter and Chapter 7 of
Florida Dissolution of Marriage (Fla. Bar CLE 10th ed. 2010) for further discussion of
discovery.
In Harrell v. Harrell, 947 So.2d 638, 639 (Fla. 4th DCA 2007), the court held that
imputing income to a party from gambling is dependent on reliable evidence that such
income is “regular and dependable.”
c. [§7.42]
Inflation
As discussed in §7.28, the effect of inflation on a child support award may be
judicially noticed. England v. England, 520 So.2d 699 (Fla. 4th DCA 1988); Desilets v.
Desilets, 377 So.2d 761 (Fla. 2d DCA 1979). Expert testimony is another means by
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which the effect of inflation may be proved to the court. See Pope v. Pope, 342 So.2d
1000 (Fla. 4th DCA 1977). It is critical that the party seeking modification
demonstrate the specific adverse impact that inflation has had on the original award.
In Petersen v. Petersen, 392 So.2d 298, 300 (Fla. 4th DCA 1981), the concurring
opinion spoke against “reliance upon national inflationary trends alone as a basis for
modification.” In Boylan v. Cooper, 482 So.2d 584 (Fla. 5th DCA 1986), the court
affirmed the denial of an increase in child support when the argument was based
solely on inflation and the increased ages of the children, dismissing those arguments
as “factors common in all cases.” See also Hale v. Hale, 567 So.2d 527 (Fla. 2d DCA
1990), and §§7.22 and 7.28.
d. [§7.43]
Voluntary Payments
Payors of child support will frequently begin to pay for items not required by the
support order, either by making purchases for the child or increasing the support paid
to the other parent. These voluntary payments, although not sufficient alone to
justify modification, have been held to be a tacit acknowledgment of an increase in
the child‟s needs and the payor‟s ability to pay. This argument is strengthened if the
payee can show that the increased amounts have been paid consistently over a period
of time. Hine v. Hine, 558 So.2d 496 (Fla. 3d DCA 1990); Reid v. Reid, 396 So.2d 818
(Fla. 4th DCA 1981). In Nevins v. Nevins, 495 So.2d 918 (Fla. 4th DCA 1986), the court
found that voluntary payments were sufficient evidence of increased need to preclude
entry of a summary judgment denying an increase in child support, and remanded for
a trial on the merits. Other cases, however, have rejected the contention that
modification follows voluntarily increased payments as a matter of law. See Douglass
v. Rigg, 525 So.2d 494 (Fla. 4th DCA 1988); Young v. Young, 456 So.2d 1282 (Fla. 3d
DCA 1984); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980). This ground is best
demonstrated to the court through the testimony and financial records of the payor
and the recipient.
“Ordinarily, child support arrearages become vested in the custodial parent.” Tash v.
Oesterle, 380 So.2d 1316, 1318 (Fla. 3d DCA 1980). Payments made beyond courtordered support generally are not entitled to be credited against past or future courtordered support payments. State Dept. of Health & Rehabilitative Services ex rel.
Pearce v. Pearce, 633 So.2d 33 (Fla. 2d DCA 1994). There are, however, certain
equitable situations in which payments made directly to or on behalf of the child in
substantial compliance with the support order can be used to set off an arrearage.
See, e.g., Goldman v. Goldman, 529 So.2d 1260 (Fla. 3d DCA 1988). But see State,
Dept. of Revenue ex rel. Cherta v. Cherta, 711 So.2d 1341 (Fla. 3d DCA 1998).
H.
Defenses
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1.
[§7.44]
Arrearages
Unpaid arrearages, without a reasonable explanation as to their cause, may constitute
“unclean hands” that will defeat a payor‟s petition for modification of child support.
Newman v. Newman, 459 So.2d 1129 (Fla. 3d DCA 1984). The most extreme case of
this type is Waskin v. Waskin, 484 So.2d 1277 (Fla. 3d DCA 1986), in which the
husband‟s financial difficulties were the result of his attempt to have the wife
murdered. Other less extreme cases recognizing the doctrine of unclean hands are
Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902 (1944); Dragland v. Dragland, 584
So.2d 46 (Fla. 2d DCA 1991); and Cain v. Cain, 436 So.2d 367 (Fla. 4th DCA 1983).
F.S. 61.14(4) authorizes the court to reduce alimony or child support if the
circumstances justify the reduction, regardless of whether the party applying for the
reduction has fully paid the accrued obligations to the other. This apparent conflict
with the foregoing cases may be reconciled with the determination that arrearages
due to a lack of ability to pay will not bar modification. In Blender v. Blender, 760
So.2d 950, 952 (Fla. 4th DCA 1999), the court stated that “an arrearage does not per
se require denial of a modification petition so long as respondent can show that he or
she was unable to comply with the previous support order.” However, arrearages
accrued willfully while the payor has the ability to pay will constitute “unclean
hands.”
Support awarded in a final judgment becomes a vested right of the payee as payments
are due. Livingston v. Livingston, 686 So.2d 664 (Fla. 1st DCA 1996). When ordering
modification, a court may not reduce arrearages without finding extraordinary or
compelling reasons. Ulander v. Ulander, 824 So.2d 309 (Fla. 1st DCA 2002).
See Chapter 3 of this manual for further discussion of enforcement of existing
obligations.
2.
[§7.45]
Agreement Not To Modify
The obligation to support one‟s child cannot be disposed of by a contractual
agreement. Fleming v. Brown, 581 So.2d 202 (Fla. 5th DCA 1991). No contract or
order can divest a court of its authority to modify child support. Leng-Gross v. Gross,
898 So.2d 241 (Fla. 4th DCA 2005). The court has inherent authority to modify child
support, regardless of any agreement between the parties, and parents may not
contract away their children‟s rights to support. Dept. of Health & Rehabilitative
Services v. Morley, 570 So.2d 402 (Fla. 5th DCA 1990). Accordingly, a court may
modify child support obligations, notwithstanding a provision in a settlement
agreement that neither party will seek any modification. The parties, however, may
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agree that child support will be modifiable without showing a substantial change of
circumstance. Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996).
In Shellmyer v. Shellmyer, 418 So.2d 477 (Fla. 4th DCA 1982), the payor transferred
his interest in the former marital residence to his former wife instead of paying past
due and future child support. Notwithstanding this agreement, the wife later sought
child support. The court struck the parties‟ agreement, ordered the property
reconveyed to the payor, and enforced the support.
Parents may modify court-ordered child support only if the child continues to receive
a roughly equivalent amount and the change serves the best interests of the child.
Ervin v. Chason, 750 So.2d 148 (Fla. 1st DCA 2000).
Simply stated, the right to receive or modify child support cannot be waived. Casbar
v. Dicanio, 666 So.2d 1028 (Fla. 4th DCA 1996). This is different from the standard for
alimony. See Chapter 6 of this manual.
3.
[§7.46]
Time-Sharing
If a parent refuses to honor the time-sharing schedule, the parent who is denied timesharing must continue to pay court-ordered child support. F.S. 61.13(4)(b). Likewise,
if a parent fails to pay court-ordered support, the other parent may not refuse to
honor the time-sharing schedule. F.S. 61.13(4)(a).
In Schutz v. Schutz, 581 So.2d 1290 (Fla. 1991), the court held that the primary
residential parent had a strong affirmative obligation to encourage and nurture the
relationship between the children and the other parent. See F.S. 61.13(3)(a). The
court had the power to deny modification to a residential parent who has refused to
allow visitation with the other parent in Warrick v. Hender, 198 So.2d 348 (Fla. 4th
DCA 1967). But see Bassett v. Saunders, 835 So.2d 1198 (Fla. 1st DCA 2003) (mother‟s
failure to allow visitation to father did not excuse father from obligation to pay
retroactive child support); State, Dept. of Revenue ex rel. Taylor v. David, 684 So.2d
308 (Fla. 1st DCA 1996) (noncustodial parent‟s obligation to pay support unaffected by
any interference with visitation).
This affirmative duty is so strong that, despite several cases holding that unpaid child
support is a vested right not subject to modification without extraordinary or
compelling circumstances, such as waiver, laches, estoppel, or reprehensible conduct
on the part of a custodial parent, Fileger v. Fileger, 478 So.2d 105 (Fla. 2d DCA 1985),
the District Court of Appeal, Third District, held that willful denial of visitation may
justify the discharge of arrearages in Kirby v. Kirby, 405 So.2d 207 (Fla. 3d DCA 1981).
But see State, Dept. of Revenue, ex rel. Rochell v. Morris, 736 So.2d 41 (Fla. 1st DCA
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1999) (mother‟s alleged failure or refusal to comply with visitation obligations was not
valid reason for trial court to deny enforcement of child support order).
Payors should not resort to self help. The refusal of a parent to honor the timesharing schedule is not a ground to withhold child support or alimony. There is no
statutory prohibition, however, on using such a refusal to deny modification. Although
F.S. 61.13(4)(c) provides a remedy to a parent when the time-sharing schedule is not
honored, Kirby remains good law. The defense may be likened to that of “unclean
hands.” See §7.44 for further discussion of arrearages and §§3.90–3.91 of this manual
for discussion of enforcement of parenting plans and time-sharing.
Denial of visitation will not serve as a defense to an action commenced under UIFSA,
because UIFSA actions may address only support and may not consider visitation.
Additionally, the payment of support may not be conditioned on the granting of
visitation. Towne v. Buckingham, 624 So.2d 858 (Fla. 2d DCA 1993); State ex rel.
Ridge v. Ridge, 483 So.2d 766 (Fla. 5th DCA 1986); Jones v. Jones, 471 So.2d 1363
(Fla. 3d DCA 1985). See Chapter 8 of this manual.
In Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003), the mother objected to the
application of F.S. 61.30(11)(b) (substantial shared parenting time) to calculate the
child support guidelines amount because the father had never exercised the amount
of visitation allotted to him in the final judgment. The appellate court held that
application of the statute was mandatory, but that F.S. 61.30(11)(a) provided a basis
for modification if the father failed to exercise the visitation in the future. However,
in Smith v. Smith, 35 FLW D2249 (Fla. 2d DCA 2010), the appellate court reversed a
trial court order modifying child support based on substantial shared parenting time
when the mother failed to exercise the time-sharing awarded to her. See §7.30
regarding modification of child support based on substantial shared parenting time.
4.
[§7.47]
Insufficiency Of Proof
In any action for modification of child support, the defending party may claim that
the movant is unable to prove the allegations contained in the petition for
modification. This is not an affirmative defense; rather, it is a denial of the material
allegations of the petition.
5.
[§7.48]
Laches
Laches asserted as a defense requires proof of “„(1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the party asserting the
defense.‟” Garcia v. Guerra, 738 So.2d 459, 461 (Fla. 3d DCA 1999), quoting McCray
v. State, 699 So.2d 1366, 1368 (Fla. 1997), limited 736 So.2d 1270.
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In McClish v. Lee, 633 So.2d 56 (Fla. 5th DCA 1994), the parties agreed that the payor
would be released from his child support obligation in return for surrendering
visitation rights. He complied with the agreement. Sixteen years later, the wife
brought an action for enforcement of child support. The court found her claim to be
barred by laches. A similar result was reached by the court in Hall v. Wilson, 530
So.2d 410 (Fla. 3d DCA 1988), which analyzed several cases using the laches defense.
If it could be shown that denial of a modification petition on the basis of laches would
not jeopardize the welfare of the children, the logic of these cases might apply to a
modification proceeding.
In Fowhand v. Piper, 611 So.2d 1308 (Fla. 1st DCA 1992), the court rejected a laches
defense when a putative father denied paternity and no action was filed for nine
years. At that time, an action was filed for paternity and retroactive support. The
father argued that both laches and the statute of limitations barred the claim but the
court rejected his contentions. However, in Krufal v. Jorgensen, 830 So.2d 228 (Fla.
4th DCA 2002), the appellate court reversed an order reducing the child support
guidelines amount on a finding of laches or fraud by the mother.
I.
Order
1.
[§7.49]
In General
After an evidentiary hearing, the court will enter an order either granting or denying
the petition based on the factors in F.S. 61.14(1)(a) (change of circumstances or
financial ability of the parties, or majority of the child). If it is denied, the support
amount continues unchanged. If the petition is granted, the court must calculate the
new support amount using the guidelines schedule in F.S. 61.30 and determine the
method of payment (see §7.50) and the effective date of the change (see §7.51).
It is error for the court to fail to make provision for the child‟s health care coverage
as required by F.S. 61.13(1)(b). Morrow v. Frommer, 913 So.2d 1195 (Fla. 4th DCA
2005).
Regardless of whether the petition for modification is granted or denied, the court
may consider an award of attorneys‟ fees, suit money, and costs. See F.S. 61.16;
Riggs v. Lowrance, 766 So.2d 1102 (Fla. 2d DCA 2000); Reid v. Reid, 396 So.2d 818
(Fla. 4th DCA 1981).
See Fla.Sup.Ct.App.Fam.L. Form 12.993(b) for an order modifying child support.
2.
[§7.50]
Method Of Payment
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Unless both parties request an alternative method and the court finds that it is in the
best interest of the child, all child support orders must direct that payment be made
through the State Disbursement Unit (SDU). F.S. 61.13(1)(d)2, 61.1824. On entry of an
order modifying a child support obligation, the court must also enter a separate order
for income deduction if one has not been entered. F.S. 61.1301(1)(a). The income
deduction order is effective immediately unless the court, on good cause shown, finds
that the order should be effective only on a delinquency in an amount equal to no
more than one month‟s support. F.S. 61.1301(1)(c). To establish good cause, written
findings are required that

explain why immediate income deduction would not be in the child‟s best
interest;

show proof of timely payment of the prior obligation without an income
deduction order; and

specify an agreement by the obligor to advise the Title IV-D agency (if
applicable) and the court depository of any change in payor or health
insurance; or

state there is a signed, written agreement providing an alternative
arrangement between the obligor and obligee and, if appropriate, the Title
IV-D agency.
F.S. 61.1301(1)(c)1–(1)(c)3. Because of the requirements for entry of income
deduction orders in F.S. 61.1301, the requirements for payment through the
depository or SDU effectively include most child support orders.
See Fla.Fam.L.R.P. Forms 12.996(a), Income Deduction Order, and 12.996(b), Notice
to Payor.
3.
[§7.51]
Effective Date
The effective date for a modification increasing child support usually is the date the
petitioner filed for modification, if the changed needs or ability to pay existed as of
that date. Miller v. Miller, 826 So.2d 480 (Fla. 1st DCA 2002); Nierenberg v.
Nierenberg, 758 So.2d 1179 (Fla. 4th DCA 2000); Robinson v. Robinson, 657 So.2d 958
(Fla. 1st DCA 1995). That rule, however, is not inflexible. The trial judge has
discretion to make the modification effective as of the date of the petition for
modification or any time after that date but before the date of the order of
modification. Anderson v. Anderson, 609 So.2d 87 (Fla. 1st DCA 1992); Olds v. Olds,
584 So.2d 646 (Fla. 2d DCA 1991). “It is an abuse of discretion, however, to fail to
award support from the date of the petition for modification where the need for the
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support and the ability of the parent to pay existed at the time that the modification
petition was filed.” Butler v. Brewster, 629 So.2d 1092, 1093 (Fla. 4th DCA 1994). The
court may make its modification order effective as of the date of final hearing under
appropriate circumstances. Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002);
DeSantis v. Smith, 634 So.2d 796 (Fla. 4th DCA 1994); Keel v. Keel, 597 So.2d 433
(Fla. 1st DCA 1992). The modification may not be made retroactive, however, to a
date before the filing of the petition. McDowell v. McDowell, 770 So.2d 1289 (Fla. 1st
DCA 2000); Fayson v. Fayson, 482 So.2d 523 (Fla. 5th DCA 1986).The trial court erred
in modifying child support retroactively to the date of the final judgment, despite a
reservation of jurisdiction to do so, when the mother had waited 11 years to seek
modification in Cordell v. Cordell, 30 So. 3d 647 (Fla 3d DCA 2010). The petition
need not request a retroactive award as long as the grounds for modification existed
at the time of the petition. Pelton v. Pelton, 617 So.2d 714 (Fla. 1st DCA 1993).
An order reducing child support should not be made retroactive unless there are
“extraordinary or compelling circumstances.” Livingston v. Livingston, 686 So.2d 664,
665 (Fla. 1st DCA 1996). But see Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001)
(modification based on child attaining majority).
In Fabio v. Monell, 594 So.2d 782 (Fla. 5th DCA 1992), the court held that an order
modifying a foreign judgment that has been domesticated as a Florida judgment may
not be retroactive to a date before it was established in Florida. However, in Barr v.
Barr, 724 So.2d 1200 (Fla. 1st DCA 1998), the court certified conflict with Fabio,
reasoning that if a domesticated judgment is to be treated as a Florida judgment, it
may be made effective as of the date the petition was filed. See Chapter 9 of this
manual regarding foreign judgments.
Child support arrearages are a vested right and are not subject to retroactive
modification. Fisher v. Fisher, 613 So.2d 1370 (Fla. 2d DCA 1993); Waldman v.
Waldman, 612 So.2d 703 (Fla. 3d DCA 1993).
J.
[§7.52] Appeal
Subject matter jurisdiction for the appeal of a final judgment granting or denying
modification lies with the district courts of appeal under Fla.R.App.P. 9.030(b)(1)(A).
The appeal is commenced by the filing of two copies of a notice of appeal,
accompanied by filing fees, with the clerk of the circuit court within 30 days of
rendition of the modification order. Rule 9.110(b). The proceedings thereafter are
governed by Rule 9.110.
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The standard of review from a grant or denial of a petition for modification of a child
support award is abuse of discretion. An appellate court will affirm the award of child
support if it is supported by substantial, competent evidence in the record. G.S.P. v.
K.B., 30 So.3d 667 (Fla. 2d DCA 2010).
See Chapter 1 of this manual for discussion of appeals.
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Procedure Before General Magistrates and Child Support Enforcement
Hearing Officers
By. R. Mitchell Prugh
The Florida Bar Journal July/August, 2007 Volume 81, No. 7, Page 77.
Over the past decade, Florida increasingly has relied on state-paid general
magistrates and child support enforcement hearing officers. Although neither general
magistrates nor hearing officers appear in Article V of the Florida Constitution or the
Florida Statutes, together they form a rapidly growing specialized court for family
law. Florida funds family general magistrates and hearing officers to provide faster
court access for family disputes, relieve demands on judges‟ case loads, and save
judiciary expenses.1 This article discusses correct referral and notice, recorded
hearings, and the filing of exceptions or a motion to vacate order.
Florida‟s state-funded general magistrates and hearing officers are structured
differently than Article V judges. Unlike Article V judges, they lack a set tenure in
office and protection of salary, and instead are state court system at-will employees.
General magistrates hear cases only by the implicit or express consent of the parties
and are, therefore, conceivably subject to pressure to issue popular rulings. Both
general magistrates and hearing officers are selected outside the election or merit
retention process for judges and file no financial disclosure, 2 although they may
individually issue case dispositive rulings in thousands of court cases each year that
receive deferential review by the Article V courts.
General magistrates, formerly called general masters, have a long history in
chancery.3 General magistrates serve by appointment of the judges within a circuit
and remain in office until “removed by the court.”4 A general magistrate may be
disqualified from hearing a case on the same bases as a judge.5 General magistrates
may hear most family law matters which do not require an order that takes
immediate effect.6
A party must file an objection to the referral within 10 days after service of the
referral or be deemed to have implicitly consented to the referral.7 Objections can be
filed before the time a responsive pleading is due if the referral was made within 20
days of when action filed.8 Failure to timely object may be overcome by good cause
shown before hearing commences.9 One court decision has held a party may object
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before the referral is made.10 A party waives the right to object to a referral actually
made if the party participates in the hearing, but the party does not waive objection
if there is a total lack of any referral order.11 One consequence of the referral system
is that the parties may exercise limited “judge shopping” by consenting or objecting
to a referral.12
The notice of referral must state with specificity what is being referred to the general
magistrate and must contain certain mandatory language.13 An entire case is generally
not referred to a general magistrate unless the parties consent. 14 After referral,
additional matters may not be referred without agreement of parties, 15 and the
general magistrate is without jurisdiction to hear additional matters not referred. 16
An appeal from a referral lacking consent may be heard by writ of mandamus, writ of
prohibition, or direct appeal from the order on the report. 17
Hearing officers are the court created response to federal legislation requiring
expedited child support procedures in order to receive federal funds. 18 By court rule,
hearing officers are appointed by the chief judge within a circuit and serve at the
pleasure of the chief judge and a majority of the circuit judges in the circuit.19 There
is no procedure to object to a case being referred to a hearing officer. 20 Hearing
officers are limited to hearing cases establishing, modifying, or enforcing child
support or a support order in conjunction with child support.21 Hearing officers may
hear attorneys‟ fee issues if there is no objection,22 but, they lack jurisdiction to hear
other family law matters.23
The general magistrate or a party may set the action for hearing24 and notice the
hearing.25 Any party may apply for a court order to require the general magistrate to
speed the proceedings or certify a reason for delay.26 The family rules contain
preferred language for the notice of hearing, including whether electronic recording
is provided by the court.27 The failure to provide notice of the hearing requires
reversal even if a party later participates by timely filing exceptions after the
hearing.28 Hearing officers are responsible under court rule for setting hearings in
child support actions.29
The second essential practice point is that general magistrates and hearing officers
are required to record all hearings.30 Therefore, attorneys representing modestlyfunded clients may rely on the recording to preserve an appeals record without paying
a court reporter appearance fee. The recording must be transcribed only when filing
exceptions to a general magistrate‟s report or when moving to vacate a hearing
officer‟s recommended order.31 The lack of audible recording will result in a new
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hearing.32
The general magistrate may proceed ex parte if one or more of the parties fails to
appear at a noticed hearing.33 The rules of evidence apply to hearings before the
general magistrate.34 A party must contemporaneously object to preserve the
objection.35 Contemporaneous objection must be made to a child support hearing
officer‟s jurisdiction to hear attorneys‟ fee issues.36 As one or more parties appear pro
se in most cases, court rules provide that the general magistrate may examine the
witnesses under oath.37 No comparable rule prescribes the hearing officer‟s powers to
directly interrogate witnesses.
The general magistrate must submit a report and recommendation to the circuit judge
containing findings of fact, conclusions of law, and recommendations. 38 The report
and recommendation in a juvenile case must contain specific language about filing
exceptions.39 The hearing officer must also submit a recommended order containing
findings of fact.40
If the general magistrate referral is to determine facts based on testimony, then older
cases hold the report should indicate on what testimony it is based. 41 There is no
particular form for the findings of fact; a review of the evidence and the findings
taken from the evidence is sufficient.42 The general magistrate must submit the
report while still sitting as a general magistrate; a report submitted after the general
magistrate‟s resignation is a nullity.43 The general magistrate must give notice to the
parties that the report and recommendation have been submitted to the circuit
judge.44
If no party files exceptions, the circuit judge reviews the general magistrate‟s report
and recommendation for 1) whether the evidence and facts support the
recommendations and 2) whether the recommendations are justified under law.45
Similarly, the circuit judge “carefully considers” the hearing officer‟s recommended
order for whether the evidence and findings “as fully set forth” in the recommended
order support the recommendations, and the circuit judge enters the order
“promptly” unless there appears reason to amend the order, conduct hearings, or rerefer the order to the hearing officer for further hearing.46
The third critical practice point is the filing of exceptions to a general magistrate‟s
report and recommendation or filing a motion to vacate a court‟s order on the hearing
officer‟s recommended order. The filing of exceptions occurs before a circuit judge
rules on the general magistrate‟s report and recommendation; the motion to vacate
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occurs after the circuit judge acts on the hearing officer‟s recommended order.
In cases proceeding under the family law rules, a party objecting to a general
magistrate‟s report and recommendation may serve exceptions within 10 days of
being served with the report and recommendation.47 In contrast to prior chancery
procedure, the family rules do not address enlargement of the 10-day period.48 In
contrast to the family rules, in juvenile cases since 2006, a party may file exceptions
within 10 days of being served with the report and recommendation.49 This difference
should be noted.
The failure to file exceptions will preclude further appellate review. 50 One court
decision added the five-day mail rule to the 10-day limit in which to file exceptions.51
The exceptions must be stated with specificity.52 The court may not enter the order
or take action until after the hearing on the exceptions. 53 In practice, parties often
waive the 10-day period in order to expedite rendition of the court‟s signed order.
In contrast, a motion to vacate the circuit judge‟s order on the hearing officer‟s
recommended order is timely if served within 10 days after entry 54 of the circuit
judge‟s order.55 By rule, the circuit judge must hear the motion to vacate a hearing
officer‟s recommended order within 10 days after the moving party applies for a
hearing.56 The filing of a motion to vacate stays enforcement of the order until the
hearing is held.57
The record for exceptions or a motion to vacate consists of the court file, the
transcript of the hearing, and all evidence accepted at the hearing.58 Since 1995, the
court rules place the responsibilities to prepare the record 59 and the transcript60 on
the party seeking review. The transcript must be filed at least 48 hours before the
hearing.61
Court rules do not provide for general magistrates or hearing officers to rehear a
matter unless the circuit judge orders further proceedings. 62 Rather than file a motion
for rehearing, the better practice is to file the exceptions or motion to vacate and
request the circuit judge to order further proceedings. Parties simply filing a motion
for rehearing may find themselves procedurally barred from further review.
If exceptions to the report and recommendation or a motion to vacate the
recommended order are filed, then the circuit judge must review the entire record,63
including the electronic recording if necessary.64 The circuit judge must give a hearing
on the exceptions filed to a general magistrate‟s report and recommendation. 65 The
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hearing before the circuit judge on exceptions should be based on the record
developed before the general magistrate and not a hearing de novo on the
exceptions.66 The party filing the exceptions has the burden of providing record
material from the hearing before the general magistrate to sustain the exceptions.67
The circuit judge applies as many as three standards of review to the general
magistrate‟s report and recommendation when exceptions are filed. First, the circuit
judge reviews the findings of fact under a clearly erroneous standard.68 A circuit
judge errs by not following findings supported by competent and substantial
evidence.69 Some court decisions analogize the standard of review for factual findings
as that deference given by a judge to a jury decision,70 or the deference given by an
appellate court to the trial court‟s factual findings.71 The circuit judge should defer to
a general magistrate‟s findings based on witness credibility.72 Second, the circuit
judge reviews the application of law to the facts under an abuse of discretion
standard.73 An abuse of discretion occurs if no reasonable person would take the view
adopted by the general magistrate.74 Some courts express this standard as allowing
the circuit judge to revise or reject reports if the general magistrate has
misconceived the legal effect of the facts or conclusions. 75 Some courts have held the
circuit judge may reinterpret facts to reach an equitable conclusion. 76 One court has
held that the circuit judge is not bound by recommendations that are not findings of
fact based on disputed evidence.77 Third, the circuit judge and the appellate court
review pure conclusions of law de novo.78 If the report relates to matters not
referred, then the circuit judge may refer the case back to general magistrate or
otherwise the report and recommendation is a nullity.79 In all cases the circuit judge
may refer the matter back to the general magistrate for additional testimony. 80
For recommended orders from the hearing officer, the circuit judge should amend the
recommended order, conduct further proceedings, or refer the case back to the
hearing officer to conduct further proceedings.81 The circuit judge should not simply
reject the recommended order in its entirety.82
An appeal to the appellate court from the circuit judge‟s order is reviewed for an
abuse of discretion.83 Although a district court‟s consideration is essentially a third
determination for a case, there are no reported decisions on whether a more
restrictive City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), standard of
review applies as it does in the cases of appellate review of local government or
administrative decisions.84
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1
Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc).
Code of Judicial Conduct, Application of the Code. Judicial Canons 1, 2A, and 3 apply to general
magistrates. Financial disclosure is contained in Canon 7.
3
DeClements v. DeClements, 662 So. 2d 1276, 1279-80 (Fla. 3d D.C.A. 1995) (en banc).
4
Fla. R. Fam. P. 12.490(a); Fla. R. Juv. P. 8.257(a).
5
Fla. R. Fam. P. 12.490(c); Fla. R. Juv. P. 8.257 (c).
6
Fla. R. Fam. P. 12.490(c, g); Fla. R. Juv. P. 8.257(h). But see Little v. Little, 325 So. 2d 424 (Fla. 3d
D.C.A. 1976), cert. denied, 341 So. 2d 1083 (Fla. 1976).
7
Fla. R. Fam. P. 12.490(b)(1)(A), 12.490(b)(1)(B) (less than 10 days); Fla. R. Juv. P. 8.257(b)(1),
8.257(b)(2) (less than 10 days).
8
Fla. R. Fam. P. 12.490(b)(1)(C).
9
Fla. R. Fam. P. 12.490(b)(1); Fla. R. Juv. P. 8.257(b)(1).
10
Young v. Young, 816 So. 2d 1267 (Fla. 3d D.C.A. 2002).
11
Hand v. Kushmer, 695 So. 2d 858, 859 (Fla. 2d D.C.A. 1997).
12
E.g., Crespo v. Crespo, 762 So. 2d 568, 570 (Fla. 3d D.C.A. 2000).
13
Merrigan v. Merrigan, 947 So. 2d 668, 670 (Fla. 2d D.C.A. 2007); Fla. R. Fam. P. 12.490(b)(2),
12.490(b)(3); Fla. R. Juv. P. 8.257(b)(3).
14
See Slatcoff v. Dezen, 74 So. 2d 59, 64 (Fla. 1954) (en banc) (superseded by 1972 amendment to Fla.
Const. art. V); 45 Fla. Jur. 2d, References §19 (2006). See also Powell v. Weger, 97 So. 2d 617, 619-20
(Fla. 1957).
15
E.g., Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d D.C.A. 2002); Young v. Young, 816 So. 2d 1267,
1269 (Fla. 3d D.C.A. 2002).
16
Burns v. Burns, 13 So. 2d 599, 602 (Fla. 1943). See also Young v. Young, 816 So. 2d 1267, 1269 (Fla.
3d D.C.A. 2002); Pesut v. Miller, 773 So. 2d 1185, 1186 (Fla. 2d D.C.A. 2000).
17
Christ v. Christ, 939 So. 2d 256, 256 (Fla. 1st D.C.A. 2006).
18
In re: Florida Rule of Civil Procedure 1.491 (Child Support Enforcement), 521 So. 2d 118 (Fla. 1988).
19
Fla. R. Fam. P. 12.491(c).
20
Fla. R. Fam. P. 12.491(d); see also Heilman v. Heilman, 596 So. 2d 1046 (Fla. 1992).
21
Fla. R. Fam. P. 12.491(b).
22
Martinez v. Rodriguez, 927 So. 2d 93 (Fla. 3d D.C.A. 2006).
23
Hinckley v. Department of Revenue ex rel. K.A.C.H., 927 So. 2d 73 (Fla. 2d D.C.A. 2006); Fla. R.
Fam. P. 12.491(e).
24
Fla. R. Fam. P. 12.490(b)(4). See also Roundtree v. Roundtree, 72 So. 2d 794 (Fla. 1954) (premature
to take testimony when pleading issues still outstanding).
25
Fla. R. Fam. P. 12.490(d)(1); see also Brophy v. Ward, 74 So. 701, 702 (1917).
26
Fla. R. Fam. P. 12.490(d)(1).
27
Fla. R. Fam. P. 12.490(d)(4); Fla. R. Juv. P. 8.257(b)(3). See also Fla. R. Fam. P. 12.615(b)
(contempt); Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th D.C.A. 2005).
28
Brophy v. Ward, 74 So. 701, 702 (1917).
29
Fla. R. Fam. P. 12.491(e)(1); see also Hatcher v. Davis, 798 So. 2d 765 (Fla. 2d D.C.A. 2001) (court
may not allow the DOR to set court calendar).
30
Fla. R. Fam. P. 12.490(d)(2), 12.491(e)(2); Fla. R. Juv. P. 8.257(d)(1).
31
Fla. R. Fam. P. 12.490(g), 12.491(h).
32
Speight v. Clark, 914 So. 2d 498 (Fla. 2d D.C.A. 2005).
33
Fla. R. Fam. P. 12.490(d)(1); Bowers v. Roddy, 38 So. 2d 461 (Fla. 1949).
34
Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P. 8.257(d)(3).
35
Kent v. Knowles, 133 So. 315, 316 (Fla. 1931); Cepero v. Hartridge, 41 So. 192, 193 (1906).
2
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36
Martinez v. Rodriguez, 927 So. 2d 93, 96 (Fla. 3d D.C.A. 2006).
Fla. R. Fam. P. 12.490(d)(3); Fla. R. Juv. P. 8.257(d)(3).
38
Fla. R. Fam. P. 12.490(e); Fla. R. Juv. P. 8.257(e).
39
Fla. R. Juv. P. 8.257(f).
40
Fla. R. Fam. P. 12.491(e)(4).
41
Mote v. Morton, 41 So. 607, 608 (Fla. 1906).
42
McAnespie v. McAnespie, 200 So. 2d 606, 611 (Fla. 2d D.C.A. 1967).
43
Model v. Model, 472 So. 2d 867, 868 (Fla. 3d D.C.A. 1985), disapproved on other grounds,
DeClements v. DeClements, 662 So. 2d 1276 (Fla. 3d D.C.A. 1995) (en banc).
44
Feuer v. Feuer, 22 So. 2d 641, 642 (1945).
45
In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995).
46
Gregory v. Rice, 727 So. 2d 251, 254-55 (Fla. 1999); Fla. R. Fam. P. 12.491(f).
47
Fla. R. Fam. P. 12.490(f).
48
Fla. Stat. §63.65 (1949).
49
Fla. R. Juv. P. 8.257(f).
50
Whyel v. Smith, 134 So. 552, 555 (Fla. 1931); Rosen v. Wilson, 922 So. 2d 401, 402 (Fla. 4th D.C.A.
2006); but see Chisholm v.Chisholm, 538 So. 2d 961, 962 (Fla. 3d D.C.A. 1989).
51
Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002) (citing Fla. R. Civ. P. 1.090).
52
Penton v. Perez, 800 So. 2d 639, 640 (Fla. 3d D.C.A. 2001); Garcia v. Garcia, 743 So. 2d 1225 (Fla.
4th D.C.A. 1999).
53
Werntz v. Floyd, 814 So. 2d 480 (Fla. 4th D.C.A. 2002).
54
State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241 (Fla. 2d D.C.A. 1995).
55
Hinckley v. Dep’t of Revenue ex rel. K.A.C.H., 927 So. 2d 73, 75 (Fla. 2d D.C.A. 2006); Fla. R. Fam.
P. 12.491(f).
56
Fla. R. Fam. P. 12.491(f).
57
State Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241-42 (Fla. 2d D.C.A. 1995).
58
Fla. R. Fam. P. 12.490(g)(1); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h).
59
Fla. R. Fam. P. 12.490(g); Fla. R. Juv. P. 8.257(g); Fla. R. Fam. P. 12.491(h).
60
Brill v. Brill, 905 So. 2d 948, 955 (Fla. 4th D.C.A. 2005); Fla. R. Fam. P. 12.490(g)(3); Fla. R. Juv. P.
8.257(g)(3); Fla. R. Fam. P. 12.491(h)(3).
61
Fla. R. Fam. P. 12.490(g)(2); Fla. R. Juv. P. 8.257(g)(1); Fla. R. Fam. P. 12.491(h)(2).
62
Cf., Kienzle v. Kienzle, 556 So. 2d 1173 (Fla. 3d D.C.A. 1990); but see Dep’t of Health and Rehab.
Servs. v. Buttiglieri, 539 So. 2d 1185 (Fla. 5th D.C.A. 1989) (Sharp, J., dissenting) (magistrate denied
motion for rehearing).
63
In re Family Law Rules of Procedure, 663 So. 2d 1049, 1051-52 (Fla. 1995).
64
Gregory v. Rice, 727 So. 2d 251, 255 (Fla. 1999).
65
Smith v. Smith, 932 So. 2d 638, 639 (Fla. 2d D.C.A. 2006); Fla. Fam. L. R. P. 12.490(f); Fla. R. Juv.
P. 8.257(f).
66
Martinez v. Garcia, 575 So. 2d 1365, 1367 (Fla. 3d D.C.A. 1991); but see, e.g., Bellville v. Bellville,
763 So. 2d 1076, 1077 (Fla. 4th D.C.A. 1999) (de novo hearing on exceptions).
67
DeClements v. DeClements, 662 So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc).
68
Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc).
69
Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Robinson v. Robinson, 928 So. 2d 360,
362 (Fla. 3d D.C.A. 2006).
70
Aldred v. Romano, 58 So. 2d 436, 438 (Fla. 1952) (citing cases).
71
Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006); Brinkley v. Brinkley, 453 So. 2d 941,
943 (Fla. 4th D.C.A. 1984).
37
191
This article was originally published in the July/August 2007 issue of The Florida Bar Journal and is reprinted with permission.
72
Soud v. Hike, 56 So. 2d 462, 468 (Fla. 1952); Harmon v. Harmon, 40 So. 2d 209, 212-13 (Fla. 1949);
Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d D.C.A. 2006).
73
Anderson v. Anderson, 736 So. 2d 49, 50-51 (Fla. 5th D.C.A. 1999) (en banc); accord Frank v. Frank,
75 So. 2d 285, 285 (Fla. 1954).
74
Anderson v. Anderson, 736 So. 2d 49, 51 (Fla. 5th D.C.A. 1999) (en banc).
75
Henderson v. Henderson, 905 So. 2d 901, 903 (Fla. 2d D.C.A. 2005); DeClements v. DeClements, 662
So. 2d 1276, 1282 (Fla. 3d D.C.A. 1995) (en banc).
76
Mounce v. Mounce, 459 So. 2d 437 (Fla. 3d D.C.A. 1984); Sitomer v. Sitomer, 397 So. 2d 373, 374
(Fla. 4th D.C.A. 1981); see, e.g., Silver v. Borrelli, 584 So. 2d 1077 (Fla. 4th D.C.A. 1991) (judge can
increase recommended amount of child support).
77
Sonson v. Sonson, 815 So. 2d 685, 686 (Fla. 3d D.C.A. 2002).
78
E.g., Lowe v. Lowe, 948 So. 2d 836 (Fla. 4th D.C.A. 2007) (in personam jurisdiction).
79
Sniffen v. Sniffen, 382 So. 2d 823, 824 (Fla. 4th D.C.A. 1980); Waszkowski v. Waszkowski, 367 So. 2d
1113, 1113 (Fla. 3d D.C.A. 1979).
80
See, e.g., Cohien v. Fincke, 39 So. 2d 65 (Fla. 1949).
81
Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003); Fla. R. Fam. P.
12.491(f).
82
Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653, 655 (Fla. 2d D.C.A. 2003).
83
Carls v. Carls, 890 So. 2d 1135, 1138 (Fla. 2d D.C.A. 2004); see Robinson v. Robinson, 928 So. 2d 360,
362 (Fla. 3d D.C.A. 2006).
84
E.g., City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982) (local government); Fla. Stat.
§120.68 (2006) (limited judicial review of administrative agency orders); Sheley v. Florida Parole
Comm’n, 703 So. 2d 1202 (1st D.C.A. 1997, appv’d, 720 So. 2d 216 (Fla. 1998) (mandamus from Parole
Commission).
R. Mitchell Prugh is a general magistrate and child support enforcement hearing
officer in the Seventh Circuit. Mr. Prugh has served on the Juvenile Rules Committee
since 2002.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair,
and Susan W. Savard, editor.
192
193
Introduction: Making Child Support Orders Realistic and Enforceable
Twenty-six percent of American children under the age of 18
are growing up in single parent households. An additional
fifteen percent live in blended families.1 Absence of a parent
is the leading cause of poverty among children; absence of
a parent is also increasingly correlated to acts of juvenile
delinquency. High rates of divorce, separation, and out-ofwedlock birth have transformed the setting in which children
are raised. This overwhelms the courts, child support agency
and the welfare system.
Congress established the Federal/State/local Child Support
Enforcement Program in 1975, created under Part D, Title IV
of the Social Security Act (and hence referred to as the “IV-D
Program”). This Federal-State partnership has been increasingly
effective at collecting child support. More than 17 million
children and their families received $24 billion in child support
in 2006 through the help of the Child Support Enforcement
Program. The Federal Office of Child Support Enforcement
(OCSE) Preliminary Report for fiscal year (FY) 2006 also reports
that over 1.2 million child support orders were established and
2
1.7 million paternities were established and acknowledged.
State courts are inextricably intertwined with the success and
perceived justice of the child support enforcement system. With
powerful and largely administrative enforcement tools3 in place,
research and policy debates have refocused on key decision
points that appear to make a critical difference in ensuring child
support is the economic linchpin to family self-sufficiency that
the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (PRWORA or “Welfare Reform”) intended it to be.
Recent research categorized a major portion of child support
arrears as being owed by “dead broke,” not “dead beat,” dads.4
Considerations growing from this and similar studies include
whether the all too common practice of entering default orders
based on minimum orders or hypothetical earning capacity
and ordered retroactively (often years) to the child’s birth is
in the interest of the litigants, the child, the court or the child
support enforcement system. While legally permissible, these
orders are now believed to create an insurmountable roadblock
to compliance. Overwhelmed by a debt that will never be paid
(particularly when coupled with interest or penalty charges), the
obligor abandons any attempt at payment and the IV-D program
is saddled with larger arrears and poorer performance statistics.
While arrears and nonpayment of support orders will always
exist, the development of successful arrears-prevention
policies will facilitate payment of support and help alleviate the
overwhelming arrears management problem. The consequences
of default orders, retroactive support, minimum obligations
or attributed income policies unconnected to the realistic
capacity of low-income obligors to meet child support orders
are often unrealistic orders that are neither enforced nor
realistically enforceable. This benchcard harnesses the realworld experiences of judges to provide a tool that will guide
judicial, quasi-judicial and administrative hearing officers alike
in making more nuanced decisions at the time the support
order is established, avoiding a build-up of unpaid support and
establishing child support that is a reliable source of income for
families. The following sections examine Retroactive Support,
Order Basics, Default Orders, and Child Support Guideline –
Determining Income.
1
Kreider, Rose & Fields, Jason (July 2005). Living Arrangements of Children, 2001,
Current Population Report, U.S. Census Bureau. Available online at
http://www.census.gov/prod/2005pubs/p70-104.pdf
2
http://www.acf.hhs.gov/programs/cse/pubs/2007/preliminary_
report/#highlights
3
Examples include income withholding, Federal and State tax refund intercept,
financial institution data matching (FIDM), passport denial, and license
revocation
4
See, e.g., Sorensen, Elaine. Understanding Child Support Arrears, Urban Institute (2007);
Sorenson, California Collectibility Study, Urban Institute; Department of Health & Human
Services, Office of Inspector General, The Establishment of Child Support Orders for Low
Income Non-Custodial Parents, (OEI 05-99-00390, July 2000)
Retroactive Support
In addition to establishing a current obligation for child and
medical support, the initial order may also set that obligation
retroactively, along with assessing legal costs, genetic test costs,
birthing costs, fees, and a provision for late-payment charges
and/or interest on any or all of the above.
While almost every court makes the order retroactive to at least
the date the petition for support was filed with the tribunal,
States permit retroactivity for a considerably longer period –
perhaps to the child’s birth.1
Courts have an interest in ensuring that a respondent does
not gain an advantage or shift a financial burden of a child’s
support to the custodian or the State, simply by avoiding
litigation. Equally, research has shown that the longer the period
of retroactivity, the less likely the parent is to pay.2 Where a
noncustodial parent starts off with an order containing large
arrears, he or she may view compliance as impossible and
participation in the process as pointless. Such a conclusion is
reasonable where the law assesses interest on the retroactive
support, beginning when it is assessed. Judges also well
understand the frustration of facing either a minimum payment
on the retroactive support – so that the debt will never be paid
over a reasonable period – or such a large sum in addition to
current support that the payment will be unenforceable within
consumer credit protection limits.
When entering a retroactive support order, the judge should consider the State’s legal requirements and
restrictions. In exercising available judicial discretion regarding the period of retroactivity, how retroactive support
will be paid, and additional amounts to be charged to the obligor, the Project Advisory Group suggests the
following factors be considered:
RETROACTIVE SUPPORT ORDER CHECKLIST
The reason for the delay in establishing the order.
Determine the retroactive period based on case-specific
circumstances. Did the noncustodial parent (NCP) know
of the existence of the child? Did the custodial parent
(CP) and NCP have an informal arrangement during which
the NCP contributed directly to the support of the child?
Was the delay occasioned by failure to obtain service or
a lengthy processing time at the child support agency
or in the court? Was the NCP actively avoiding service?
Was the NCP out-of-state, in the military or incarcerated?
Where not otherwise established by State law, consider
articulating a policy standard so similarly situated
individuals are treated equitably.
Set an equitable method of repayment of retroactive
support as permitted by State law. However, a periodic
payment amount set in the order does not limit the IV-D
agency’s right to use other enforcement remedies for
qualified past due support, such as use of Federal and
State tax refund offset.
If allowed in your jurisdiction, determine whether and
how much the NCP should be ordered to reimburse such
expenses as birthing costs (in accord with guidelines) or
attorney’s fees, as well as how these “add on” collections
should be paid.4
For any period of retroactivity, the child support
guideline must be applied.
For retroactivity prior to the filing date, determine how
payment of this judgment will impact the NCP’s ability
to pay ongoing support. Consider appropriate bases for
deviation under State law as well as the long-term effect
of the amount of retroactive support on the likelihood
of it being paid when setting an order involving a lowincome obligor.3
A number of States have revised their laws to reduce the period of retroactivity. For example, Texas changed its period of retroactivity from the child’s birth to a maximum of 4 years.
“The longer the time for which non-custodial parents are charged retroactive support, the less likely they are to make any payment on their child support order once established.” HHS, Office of the
Inspector General, The Establishment of Child Support Orders for Low Income Non-custodial Parents, p13. Available online at http://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf
3
“We know from other research that ordering arrears for periods prior to the date of filing for an order, referred to as retroactive support, contributes to arrears. In Colorado, for example, 19 percent of
the arrears consisted of retroactive support. The Colorado Child Support Program estimated that the average amount paid toward retroactive support was $180 per year and that obligors who owed
retroactive support would take an average of 39 years to pay off their retroactive support.” p57. [footnotes omitted] Sorensen, Elaine, Sousa, Liliana & Schaner, Simon, Assessing Child Support Arrears
in Nine Large States and the Nation (The Urban Institute, 2007). Available online at http://aspe.hhs.gov/hsp/07/assessing-CS-debt/
4
For example, in Rhode Island, birthing and interest costs are negotiable, and the Court has the discretion to stay interest charges.
1
2
Order Basics
Legal questions regarding insufficiency or lack of clarity in a
different State’s child support order may result in refusal to
enforce, inadequate enforcement, second-guessing of terms,
or long processing delays. Such issues are multiplied when
the case moves from a local matter to an interstate case. The
consequences of default orders, retroactive support, minimum
obligations, or attributed income policies unconnected to
realistic capacity of low-income obligors to meet child support
orders may result in orders that are enforceable in theory but
fail to ensure that ongoing child support is a reliable source of
income for the custodial parent and child. After discussion, the
Project Advisory Group recommends that judges consider the
following checklist to ensure that all support orders are realistic
and realizable.
SUPPORT ORDER CHECKLIST
Include written finding of basis of personal jurisdiction
over obligor, particularly where order is entered by
default or asserting jurisdiction over a nonresident.
Recite that the requirements of the Servicemembers
Civil Relief Act have been met, waived or that the
respondent is not a member of the armed services.
Recite due process basics to avoid later challenge,
including whether a nonresident party was offered the
opportunity to participate by teleconference.
Include direction to pay child support through State
Disbursement Unit (SDU) via income withholding and
delineate either the Consumer Credit Protection Limit
or the factors (another support obligation and/or
amount of arrears) that will permit the child support
agency or employer to correctly apply Federal and
State law.
Include affirmative statement that no other valid
support order exists when entering new support
order.
Include written finding showing paternity was
determined – by paternity acknowledgment, consent
without genetic testing, conclusive presumption,
finding after genetic testing.
Include an analysis of subject matter jurisdiction when
modifying (or declining to modify) the order of a sister
State.
Include child support guideline calculation and any
finding of basis to deviate.
Include medical child support (see “Determining
Medical Support” worksheet in NCJFCJ’s technical
assistance bulletin, Why Medical Child Support is
Important—and Complex).
Include basis of retroactive support and application
of child support guideline to retroactive period if
appropriate.
Recognize the validity of pay and employment
information from FPLS, without requiring independent
employer verification.
Include applicable interest rate or penalties on
arrears, if any.
Include date order terminates or factual
circumstances for termination (e.g., high school
graduation or change of custody).
Reconcile consolidated arrears when determining
which of pre-existing multiple orders controls current
support.
Direct both CP and NCP to update address,
employment and income information.
Ensure copy of order is sent timely to IV-D agency
and parties, to allow for appeal or review request.
Include a description of the legal basis for later
modification of the order.
Default Orders
All State courts have the authority to issue a default order should
the respondent fail to appear, provided the court has both subject
matter jurisdiction and personal jurisdiction over the respondent,
and has provided notice of the hearing.1 While participation
of both parties is inherently fairer, when a party fails to appear
after receiving proper notice, a default order may be necessary.
(However, one California study found that seventy-one percent of
child support debtors had at least one order set by default).2 There
are two key policy issues caused by default orders. First, default
orders are less likely to be paid. Second, default orders are often
subject to later challenges on due process grounds, particularly
when enforcement is sought in another jurisdiction.
On the other hand, the State has an overriding interest in having
the respondent appear at the time the order is established. For
courts, respect for the judicial process is foremost. Courts may find
it advantageous to review the entire order establishment process
to determine the extent to which each segment promotes or
undermines this interest. Courts should examine the content of the
initial summons and notice. How and by whom is service made?
Does the notice accommodate the needs of non-English speaking
individuals? What is the time-lapse between service of the petition
and notice of the hearing? Does the child support guideline’s default
order standard benefit a high-income noncustodial parent (NCP)?
To ensure the fairness of default orders and avoid having the order
set aside later, the judge or quasi-judicial official should:
• Make a finding of the basis for jurisdiction. To adjudicate
paternity or establish the original support order, personal
jurisdiction over the respondent is required. Although personal
service may be more cumbersome and time-consuming,
ensuring service is constitutionally sufficient and documented will
inoculate the order against a later challenge to its validity.
• Review the Uniform Interstate Family Support Act (UIFSA). Where the tribunal is asserting jurisdiction over a non-resident,
all States have enacted the UIFSA. Section 201 sets out the
bases for extended jurisdiction. Again, the basis for jurisdiction
should be expressed in the order. For example, see Ohio’s
“Personal Jurisdiction over Non-Resident” worksheet. The
2001 amendments to UIFSA clarify that long-arm jurisdiction
is available to establish or enforce a support order. It may not,
however, be used to acquire personal jurisdiction for the tribunal
to modify another State’s order.
• Consider innovative techniques to raise participation by
the respondent. Many advocates believe that the litigants’
perceptions concerning the fairness, openness and
comprehensiveness of child support hearings go a long way
toward encouraging participation.
• Confirm that the parties have been given notice and the
opportunity to appear, and retain proof of service and notice in
the court file.
• Appoint counsel pursuant to the Servicemembers Civil Relief Act
where the respondent is known or believed to be a member of
the armed services.3
• Check to make sure the respondent is not incarcerated.
• Look at other support cases involving the obligor and another family.
• Establish the support order based on actual income of the
parties, requesting available information from the child support
agency obtained from the Federal Parent Locator Service (FPLS),
employer verification, or the petitioner.
• Limit use of default orders where paternity is at issue, unless
genetic testing has already been obtained, and use all tools
available (warrant/capias) to secure the respondent’s presence
and participation in genetic testing.
• Ensure the child support guideline contains standards for setting
default orders that balance the needs and interests of lowincome families.
• Consider providing a short opportunity to ask that the order be
reconsidered or an opportunity to reopen. Establish follow-up
procedures to document that the respondent received a copy of
the order and understands its terms.
Getting the Respondent/NCP to Appear
Most States agree that default orders should be avoided whenever
possible – and for good reason, since experiential evidence
indicates that the payment compliance rate is significantly lower in
default cases. Initially, a State may want to calculate the number
of default orders as a percentage of all orders issued, in order to
determine the extent of the problem in a particular jurisdiction.
If this is in fact an issue, the beginning strategy could be the
implementation of appropriate prevention techniques that focus
on education and outline the negative consequences intrinsic to
defaults. Additional strategies to obtain higher participation rates
may focus on the format of the summons or notice to appear.
e In Connecticut, the use of “YOU MUST APPEAR” language on
the initial notice has increased the appearance rate to ninety
percent.
e In Massachusetts, the record is kept open for one year,
during which timeframe the default order can be set aside
based on updated NCP income information. Maryland has
a similar process, as long as the NCP can provide acceptable
documentation of income. While in Connecticut, the default
record is kept open for four months, permitting the NCP to
appear and provide updated income information.
States also need to determine whether or not minimum due
process requirements were met before concluding that a failure to
appear should result in default – especially when service of process
appears questionable. If the NCP is in default, in conjunction with
the issuance of a temporary order, a bench warrant can be issued
to increase the likelihood of the NCP’s attendance at a subsequent
hearing to establish a final order.
1
Section 466(a)(5)(H) of the Social Security Act requies States to enact ”[p]rocedures
requiring a default order to be entered in a paternity case upon a showing of service of
process on the defendant and any additional showing required by State law.”
2
See, Atkinson, Janet K. & Cleveland, Barbara, A Report of the NPCL Partners for Fragile Families
Peer Learning College – Managing Arrears: Child Support Enforcement and Fragile Families, p.14,
(National Center for Strategic Non-Profit Planning & Community Leadership, 2001).
3
Public Law 108-189
OHIO’S PERSONAL JURISDICTION OVER NON-RESIDENT WORKSHEET4
Case ID
Initiating State
Responding State
Obligee Name
State of Residence
Obligor Name
State of Residence
Ohio may exercise personal jurisdiction (long-arm over a non-resident in a child support or paternity proceeding because one or more of the
following apply §3115.03):
1. He/she was personally served in Ohio with a summons:
Service Date
Service Provider
2.He/she submits to the jurisdiction of Ohio
Evidence of Consent Attached
3.He/she resided in Ohio and provided prenatal expenses or support for the child:
Dates
Resided at
Evidence of Prenatal Expenses Attached
Evidence of Support Provided Attached
4. The child resides in Ohio as a result of the acts or directives of the individual:
Affidavit Attached
5.He/she engaged in sexual intercourse in Ohio and the child may have been conceived by that act of intercourse:
On or about date
Child’s DOB Full Term
Premature
6.He /she registered in the putative father registry.
Evidence Attached
7. There is another basis for Ohio to exercise personal jurisdiction over the individual:
Explain
Ohio may obtain jurisdiction but elects to use the two-state process because:
Explain
There is no basis for jurisdiction. UIFSA petition initiated to:
Prepared By
Date
if a Meritorious defense exists. A stay of at least 90 days must be
Servicemembers
Civil Relief Act5
granted. In addition, the request for a stay does not constitute an
Effective December 19, 2003, Congress replaced the Soldier’s and
Sailor’s Civil Relief Act with the Servicemembers Civil Relief Act
(SCRA), 50 USC App. §§501 to 596. The new law makes substantial
changes in how paternity and child support cases involving a
member of the armed forces are to be handled by private attorneys
and state child support (IV-D) agencies. Some courts are requiring
an Affidavit of Non-Military Service in all cases before entering
a default order in child support and paternity cases. For military
personnel stationed outside the tribunal’s jurisdiction, courts may
consider use of teleconferenced hearings to avoid delays.
Among the major changes are:
• Coverage. In addition to members of the traditional armed
forces, reservists and members of the National Guard who are
called to active duty for more than 30 days are now covered by
the SCRA. Also covered are American citizens who are serving in
the armed forces of another country if that nation is allied with the
United States in the prosecution of a war or military action.
• Scope. The old law applied only to court proceedings. The new
law covers administrative proceedings as well. It does this by
defining a court as “a court or an administrative agency of the
United States or of any State.”
• Default Orders. When seeking the entry of a default order against
a servicemember, the tribunal (court or administrative agency)
may not enter a judgment until after it appoints an attorney to
represent the defendant. SCRA §201 requires an automatic stay of
proceedings be granted in default proceedings if the defendant
is in the military service and upon application of counsel or on
the court’s own motion, if the court determines that there may
be a defense to the action and a defense cannot be presented
without the presence of the defendant, or after defense counsel
has been unable to contact the defendant or otherwise determine
•
•
•
•
4
appearance for jurisdictional purposes and does not constitute a
waiver of any substantive or procedural defense.
Stay of proceedings. At any stage before final judgment, the
court (on its own motion) can grant a stay of the proceedings.
Alternatively, the servicemember can apply for a stay. The
application must include: 1) a letter from the servicemember
setting forth why his/her current military duties prevent an
appearance and stating a date when he/she will be available; and
2) a letter from the servicemember’s commanding officer stating
that the servicemember’s current duties prevent an appearance
and that leave is not authorized. If proper documentation is
provided, a stay of at least 90 days must be granted. In addition,
the request for a stay does not constitute an appearance for
jurisdictional purposes and does not constitute a waiver of any
substantive or procedural defense.
Continuing Stay. A servicemember may ask for an additional stay
by submitting the same type of documentation required for the
initial stay (see above). If the court or administrative agency
declines to grant an additional stay, it must appoint an attorney to
represent the servicemember’s interests.
Waiver of Rights. A servicemember may waive his/her SCRA
rights. The waiver must be in writing.
Representation. A servicemember who cannot appear and
does not wish to waive his/her rights can also appear through a
representative. This person can be an attorney or an individual
possessing the power of attorney.
HHS/ACF/OCSE, Essentials for Attorneys in Child Support Enforcement, 2002, 3rd Edition, page 405. The handbook itself may be found on the OCSE website at
http://www.acf.hhs.gov/programs/cse/pubs/2002/reports/essentials/
5
For more information, see DCL-04-26 at
http://www.acf.hhs.gov/programs/cse/pol/DCL/2004/dcl-04-26.htm
Child Support Guidelines – Determining Income
Every state must have and use numeric child support guidelines
as the presumptive correct amount of child support. These
guidelines apply to the calculation of all child support orders in
the state, not just IV-D cases. The hardest part of establishing
a support order that is real and realizable is not the calculation
using guidelines. Regardless of what type of formula a State has
enacted, child support guidelines have simplified – and made
more equitable – the process of calculating the proper dollar
amount of support. Complicating issues include the variables the
guidelines allow or, absent variables, the determination of when
and how to deviate from guidelines. These complex issues, such
as multiple families, self-employment, health care costs, private
school and higher education costs, and post-emancipation
support, may require a broader analysis than is available under
State child support guidelines.
It is important to note that there is no Federal definition of
income for use with child support guidelines. For the purpose of
income withholding and other expedited processes, “income”
means any periodic form of payment due to an individual,
regardless of source, including wages, salaries, commissions,
bonuses, worker’s compensation, disability, payments pursuant
to a pension or retirement program, and interest.1
State definitions tend to be broad and include resources, such
as salary and wages; commissions; bonuses; tips and perquisites
(perks); rental income; estate and trust income; royalties; interest,
dividends and annuities; self-employment earnings; alimony and
other unearned income; in-kind compensation or non-cash fringe
benefits; and lottery winnings.2
There are several important issues related to an accurate
determination of income. Decision-makers should consider:
• the State-specific definition of income and whether net income
or gross income is used;
• how the State treats business income and expenses, income
from overtime or second jobs, as well as benefits, perks, and
in-kind compensation; and
• the requirements for imputing income.
Income information from the Child Support Enforcement Agency
The Personal Responsibility and Work Opportunity Reconciliation
Act (PRWORA) of 1996 (also known as “Welfare Reform”)
was signed into law on August 22, 1996. One key provision
of PRWORA is that all States must have a program to collect
information about newly hired employees. Under new hire
reporting, employers must report information about newly hired
employees to a State Directory of New Hires (SDNH). States
match new hire reports against their child support records to
locate parents, establish orders, or modify or enforce existing
orders.
With implementation of the SDNH, the child support agency
can quickly locate noncustodial parents employed within the
State. However, one-third of all child support cases involve
parents living in different States. To address the large number
of cases where the parent who owes child support is employed
in another state, PRWORA called for the establishment of the
National Directory of New Hires (NDNH). The NDNH is a major
component of the Federal Parent Locator Service (FPLS).
The NDNH is a national repository of employment,
unemployment insurance, and quarterly wage information. The
data residing in the NDNH includes: records from the SDNH;
quarterly wage and unemployment insurance data from the
State Employment Security Agencies (SESAs); and new hire and
quarterly wage data from federal agencies.
Employers have up to 20 days from the date of hire – depending
on state law – to report the following information for a newly
hired employee to their SDNH:
• Name, address and Social Security Number (SSN) of employee
• Name, address and Federal Employer Identification Number
(FEIN) of employer
• Any State-specific required data
The NDNH interacts with the Federal Case Registry (FCR),
another key component of the FPLS. The FCR contains
information about persons in all child support cases being
handled by State child support agencies, and in all support
orders issued or modified after October 1, 1998. The FPLS
automatically and regularly compares the data in the NDNH
against child support cases and order data in the FCR. In
addition, States can make a locate request to the FPLS, which
includes an NDNH search. When there is a match, the FPLS
provides the new hire, quarterly wage, or unemployment
information concerning the custodial or noncustodial parent
to appropriate States. Those States use the information to
establish initial child support obligations, or enforce (through
income withholding) existing orders.
Social Security Numbers (SSN) are key to the information stored
in the FPLS. All SSNs received through new hire, quarterly wage
and unemployment insurance reporting are verified through
the Social Security Administration before being placed on the
NDNH. Records containing unverified SSNs are not posted
to the NDNH. Without a valid SSN, information regarding a
participant cannot be obtained nor passed to another State.
By law, access to the FPLS is limited.3 Since the information
is contained in an official record, court rules should permit
admission of this employment and income information without
an independent verification from the employer.
Imputing Income to the Voluntarily Unemployed
or Underemployed4
Most States allow a decision-maker to impute income when
there is a finding that a parent is voluntarily unemployed
or underemployed. It is generally permissible to attribute
income at the level that the parent would have earned if fully
employed – that is, at the parent’s earning potential or capacity.
Judges or administrative decision-makers determine earning
capacity by looking at the party’s work history, age, educational
background, and skills. It also may be appropriate to examine
location-specific issues.
Some States address the imputation of income in their child
support guidelines. These States typically set out a minimum
wage rate or annual salary for the purpose of attributing
income. Some tribunals regularly impute minimum wage without
a statutory directive.
An exception may exist for a parent who is unemployed or
underemployed to care for a young child. For instance, Maine
does not impute income to the custodial parent of a child
younger than age three, and it grants discretion to the tribunal
in cases involving the custodial parent of a child between the
ages of three and twelve.5 In Maryland, income is not attributed
to the custodial parent of a child under the age of two.6
What to Do When the Obligor is Incarcerated?
By the end of 2005, nearly 1.5 million individuals were
incarcerated in Federal or State prisons. About half of
incarcerated parents (estimated to be over 800,000 mothers
and fathers) have open child support cases.7 A dilemma for
judges is how to handle the setting of child support orders when
the obligor is incarcerated. For many States, an individual who
commits a crime, is caught and either incarcerated or whose
criminal record creates an additional barrier to employment, is
considered to be voluntarily unemployed or underemployed.
As such, the fact that they have no income is irrelevant for
the purpose of establishing a child support order. Attributed
income is based on their earnings or earning capacity before
incarceration – often considered to be full-time employment at
the State’s minimum or even median wage, despite a recognition
that a person in prison has virtually no ability to earn income. The
result is no payment and accruing debt that is likely to never be
paid, particularly in States where interest applies to child support
arrears (including retroactive support).
There is no simple answer. Some policymakers argue that to
either set no obligation, or suspend an order during the obligor’s
incarceration, rewards unlawful conduct at the expense of
the child – or the custodian or taxpayer supporting the child.
Others argue that most of the debt accrued under such orders
is uncollectible and unrelated to the obligor’s ability to pay.
These policymakers argue that it is better to focus on ensuring
a reasonable amount of support is paid on an ongoing basis
after release and to foster both legal employment and a positive
relationship between the noncustodial parent and child.8
To the extent State law is silent or ambiguous, judges should
establish policies for setting support when an obligor is
incarcerated, determining whether incarceration is a basis
for modification of an existing support order, and addressing
payment of arrears accrued during incarceration.
Medical Support and Guidelines9
Tribunals usually will encounter four types of medical expenses:
health insurance coverage; payments for the uninsured or
unreimbursed portions of regular medical expenses (i.e.,
deductibles, co-payments, or prescriptions); extraordinary
medical expenses (i.e., non-routine expenses, such as those
incurred due to accident, infirmity, or disability); and elective
medical procedures (i.e., orthodontia or cosmetic surgery).
Because of recent legislation regarding medical support, State
and tribunal obligations in this area have changed dramatically.10
Federal regulations require State guidelines to provide for
the health needs of children through “health insurance or
other means.”11 Further, in public assistance cases, State child
support enforcement agencies must seek health insurance, if it is
available to the NCP at a reasonable cost.12 Thus, the issue of the
child’s health needs must be considered in the context of child
support establishment or modification in the IV-D context.
Many guidelines address basic health insurance. A number of
States give a credit, equal to the premium amount, to the parent
providing the medical insurance coverage. In some States, the
actual cost of the premium is deducted from the income of the
paying parent before support is calculated. Other States list the
insurance cost as an add-on to the basic support amount, and
then they apportion the cost between the parents in the same
percentages as the base support or equally.
There are a variety of views regarding the treatment of regular,
but uninsured or unreimbursed, medical expenses. Some States
have factored a portion of these costs into their guidelines.
Another approach is to add the uninsured or unreimbursed
medical expenses to the basic award, and then apportion that
amount between the parents on the same basis as the support
obligation. Other States require these costs to be shared equally
by the parties. More and more, States are addressing medical
expenses in cash medical awards, in addition to child support.13
Extraordinary medical expenses can be treated as an add-on to
the basic child support amount or as a basis for deviation. Almost
half of the States add extraordinary medical expenses to the
basic child support obligation, and then divide them between
the parents in a proportionate share. A slightly smaller number
list extraordinary medical expenses as a reason to deviate from
the guidelines. Several States do not specify how such costs
should be handled. Also note that Ohio requires its tribunals to
issue a separate order when cases involve extraordinary medical
expenses.14
Whatever the State’s approach, the fundamental question is
what constitutes an extraordinary expense. Several States define
extraordinary by using a dollar amount – either a specific sum per
illness or a threshold that a child’s annual expenses must exceed,
such as a percentage of the total income or support order. In
other States, an expense is extraordinary if it is connected with a
permanent, chronic, or recurring illness; a mental health matter;
or extended treatment, such as orthodontic care or physical
therapy.
Federal law states that deviation is warranted when the
application of the child support guidelines would render either
an inequitable or inappropriate result in a particular case.15
Ultimately, the decision-maker must determine whether the best
interest of the child, and equity, would be served by entering an
order that varies from the support guidelines.
1
42 U.S.C. §666 (b)(8)
Office of Child Support Enforcement, (1996) Evaluation of Child Support Guidelines, p. 3-13.
Office of Child Support Enforcement, Essentials for Attorneys in Child Support
Enforcement 3rd Edition, Exhibit 5-1, Request for FPLS Information provides a
chart showing authorized users and authorized purposes to access the FPLS data.
Available online at http://www.acf.hhs.gov/programs/cse/pubs/2002/reports/
essentials/c5.html
4
See discussion of imputed income and minimum orders in The Establishment of Child Support
Orders for Low Income Non-custodial Parents HHS, Office of Inspector General OEI-05-99-00390
http://oig.hhs.gov/oei/reports/oei-05-99-00390.pdf
5
Me. Rev. Stat. Ann. tit. 19, §393 (5)(D) (West 1992).
6
Ann. Code of Md, Family Law Article §12-204 (b)(2)(ii)
7
Office of Child Support Enforcement, Incarceration, Reentry and Child Support
Issues: National and State Research Overview, 2006; Council of State Governments,
(2005). Report of the Re-Entry Policy Council: Charting the Safe and Successful
Return of Prisoners to the Community.
8
See the policy discussion in Turetsky, Vicki, Staying in Jobs and Out of the
Underground: Child Support Policies that Encourage Legitimate Work (Center for
Law and Social Policy, 2007). Available online at
http://www.clasp.org/publications/cs_brief_2.pdf
9
NCJFCJ is issuing a technical assistance bulletin “Why Medical Child Support is Important – and
Complex,” in 2008 under this SIP grant.
10
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the
Balanced Budget Act of 1997, the Child Support Performance and Incentive Act
of 1998, and the Deficit Reduction Act of 2005 all made significant changes to the
area of medical support.
11
45 C.F.R. §302.56(c)(3).
12
45 C.F.R. §303.31(b)(2)(i).
13
Of course, the treatment of routine, uninsured or unreimbursed expenses may be
left to the discretion of the decision-maker. New York handles these costs in such
a manner. In Steel v. Steel, 579 N.Y.S. 2d 531 (N.Y. Sup. Ct. 1990) the court found
it appropriate for the NCP to pay 100% of the children’s reasonable and necessary
medical expenses because his income was substantially higher than that of the
custodian.
14
Ohio Rev. Code Ann. §3113.21.5 (5)(f) (Page 1993).
15
42 U.S.C. §667(b)(2) A full discussion of State child support guidelines and bases for deviation
may be found in Laura W. Morgan, Child Support Guidelines: Interpretation and Application
(Aspen Publishers, 2007), and Chapter 4 in particular.
2
3
Child Support and the Judiciary
Income Withholding for Support and the State Disbursement Unit
What is an IWO?
Are there exceptions to income withholding?
Commonly known as an income withholding order or IWO,
the Income Withholding for Support is the standard form
approved by the Office of Management and Budget that
must be used by all entities to direct employers to withhold
income for child support payments.
Yes, section 466(a)(8)(B)(i) of the Social Security Act allows
two exceptions as stated below:
What is the SDU?
The State Disbursement Unit (SDU) is a centralized
collection and disbursement unit for child support payments
from employers, income withholders, and others. An SDU is
responsible for:
•
•
•
•
Receiving and distributing all payments
Accurately identifying payments
Promptly disbursing payments to custodial parents
Furnishing payment records to any parent or to the court
Why were standard forms and payment
directions developed?
Under provisions of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Congress required
the use of a standard withholding process to increase
child support collections for all families, promote selfsufficiency for low-income families, and reduce the burden
on employers. States were also required to establish
and maintain SDUs to receive child support payments
from employers and other sources (1) for all IV-D cases
and (2) for all non-IV-D cases with support orders initially
issued on or after January 1, 1994 payable through income
withholding.
How is income withholding ordered?
When entering a child support order, judicial and
administrative officials must enter an IWO. Some states use
the following language in the child support order:
“Reference is hereby made to a separate income
withholding order, the entry of which is required of this
(Court) (Agency) by law and specifically incorporated
herein as part of this (Court’s) (Agency’s) order in this
case.”
“The income of a noncustodial parent shall be subject to
withholding, regardless of whether support payments by
such parent are in arrears, on the effective date of the
order; except that such income shall not be subject to
withholding under this clause in any case where
(I) one of the parties demonstrates, and the court (or
administrative process) finds, that there is good cause
not to require immediate income withholding, or
(II) a written agreement is reached between both parties
which provides for an alternative arrangement.”
Must I use the OMB-approved IWO form?
Yes, the IWO form has been required since August 22, 1996,
for orders issued or modified on or after January 1, 1994.
The revised IWO form, instructions, and process flow was
published on May 16, 2011. However, other requirements
concerning the revised IWO form became effective May 31,
2011 [see AT-11-05]:
All IWOs that order an employer to withhold
payments, including those issued by courts and
private attorneys, must direct payments to the SDU.
Employers/income withholders are instructed to return
the IWO to the sender if payment is not directed to the
SDU.
All entities or individuals authorized under state law
to issue income withholding orders to employers
must use the OMB-approved IWO form.
Effective May 31, 2012, any IWO received that is not
on the OMB-approved IWO form will be returned to the
sender by the employer.
A fillable version of the form is available at:
www.acf.hhs.gov/programs/cse/forms/OMB-0970-0154.pdf.
Additional Web Resources
• Section 466 of the Social Security Act
• Action Transmittal 11-05 (AT-11-05)
• 45 CFR 303.100, Procedures for income withholding
• Intergovernmental Referral Guide containing each state’s IWO procedures
• State Contact and Program Information Matrices for state-specific information and contacts for questions
• Income Withholding, choose Private Sector Employers or Federal Agency Employers to get information on processing
the IWO notice and calculating withholding amounts, with examples
U.S. Department of Health and Human Services
Administration for Children and Families / Office of Child Support Enforcement
Prepared April 2012
Child Support Hearing Officer Colloquy

Thank you for being here.

We are here today to hear DOR child support cases. Parents have a moral and
legal obligation to support their children.

It‟s not the other parent requiring you to pay child support – it‟s the law.

The question is not what happens to you if you have to pay child support, but
what happens to your child if you don‟t pay.

The court and the Department of Revenue attorneys don‟t make up the
numbers. The law of Florida has guidelines, and we basically determine your
income, your work history and the number of children involved and then plug
those numbers into the chart to give us the amount of child support the state
requires you to pay.

The law says we cannot put “0” in the box unless you are disabled and this
disability has been verified by a doctor. The lowest amount we can set is the
amount for full-time minimum wage. If you aren‟t working, you‟ll need to get
a job so that you can support your children.

We are only here to discuss numbers and do the math. We don‟t need to know
if you like the other person or if you are getting along with them.

We do not do custody or visitation. If you have an issue that deals with
something else besides child support, that is handled in a different court and
can‟t be handled today. We only deal with child support issues in this court.

This is not a court like you see on T.V. and we don‟t need any drama. We‟re
only here to do the math and arrive at the amount of child support that is due.
Please be respectful and don‟t interrupt each other.
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
There has to be a court ordered written time sharing plan before I can account
for the time sharing in the child support calculation.

We are recording these hearings.

At the end of the hearing, you can ask questions.

In a couple of weeks, you‟ll get an order that describes what happened today.

The state is entitled to court costs. In most cases, I will allow you up to one
year to pay those costs.

I have read the files and know the names of your children and the other
information in the documents.

There are three basic types of cases that will be heard today so here is what
you can expect:
o Petition to establish paternity – The father‟s name is not on the birth
certificate and has not been adjudicated to be the father of the child.
Unless the father admits freely and voluntarily that he is the father,
then the father is entitled to DNA testing by law. Mothers, please don‟t
be offended. You may know he is the father, but the law allows the
test. You‟ll get a notice in the mail that tells you where and when to
take the child for the swab test.
o Petition for support: that means the father is already on the birth
certificate or has already been found to be the father by law. In these
types of cases, the father is NOT entitled to DNA, and no DNA will be
ordered. What we‟re going to do in these cases is discuss income, plug
those numbers into the guidelines, and come up with the child support
amount.
o Contempt – In these cases, the state has filed a motion and we are here
to find out why you haven‟t been making payments. We want to get you
back on track. When a child turns 18, you are not automatically done
with child support, you have to keep paying until the total amount you
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owe is paid, including any arrears. In the last 2 years, the Department
of Revenue has made an increased effort to collect child support, and
because of this, if you‟re not paying, you‟re going to be in court more
often and you could end up in jail for non-payment. If you are ordered
to jail today, the bailiff will show you where to sit.
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Petition for Paternity Hearing Checklist

Swear in the parties.

Determine if the parties were served. If so, find that parents were properly
served and noticed.

If the father was served and did not appear, make a finding that the father was
properly served and adjudicate paternity by default.

If the father appears and doesn‟t admit paternity, order DNA testing. Explain
that if the father doesn‟t comply, the court can adjudicate the person as the
father.

If the father doesn‟t comply with order to test, issue an Order to Show Cause.

If the DNA is positive or the father freely and voluntarily admits that he is the
father, adjudicate the man as the father of the child.

If the father is in jail, don‟t set child support until he is released.

Go to Child Support Hearing Checklist.
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Petition for Superseding Administrative Order
Hearing Checklist

Swear in parties.

Determine if parties were served. If so, find that parent was properly served
and noticed.

Determine if paternity is an issue. If so, see Paternity checklist.

Determine monthly income for each party.

Determine health insurance.

Determine day care/after school costs. Make finding if cost is reasonable.

Determine obligation/monthly base support.

Order monthly base salary.

Order retroactive amount, if any.

Order Income Deduction Order (IDO).

Order split in medical expenses beyond insurance.

Order court costs.

Note: With an administrative support order, the Department of Revenue must
file a petition to enforce the order and that must be served before this court
has jurisdiction.
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Petition for Support Hearing Checklist

Swear in parties.

If an attorney represents a party, ask them to announce their appearance on
the record.

Determine if parties were served. If so, find that parent was properly served
and noticed.

Determine monthly income for each party. Check with the Department of
Revenue to see if record of income exists. Input minimum wage (or other) if
necessary.
o In order to impute income higher than what the respondent is earning,
the court must find that the parent owing the duty to support: 1) has the
actual ability to earn more than currently earning and 2) that the
respondent is deliberately refusing to work at a the higher capacity to
avoid the support obligation. Stebbins v. Stebbins, 754 So.2d 903 (2000).

Make finding of monthly income.

Determine current health insurance and who is responsible for paying.

Determine day care/after school costs and who is responsible for paying.
Make finding if cost is reasonable.

Determine obligation/monthly base support.

Order monthly base support and payment to Florida Disbursement Unit. Give
Speed credit if father requests it and has other children in the home.

Note: visitation must be court-ordered before parents get credit for overnight
visits.

Order retroactive amount. Give the father credit for father‟s past payments, if
any.

Order Income Deduction Order (IDO).

Order party to provide medical insurance if reasonably available.

Order split in medical expenses beyond insurance.
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
Make sure that there is a termination date as each child turns 18, and the order
specifies a drop down to the next amount of child support.

Verify that DOR has costs. Order court costs.
200
Petition to Modify Child Support Hearing Checklist

Swear in the parties.

Determine if parties were personally served with the petition to modify. (Can‟t
be done with a motion and certificate of service. Must be personal service.) If
so, find that parent was properly served and noticed.

Determine if parties have filed the mandatory financial discovery.

The party bringing the petition has the burden of proof. Child support can be
modified if:
o when in the best interests of the child
o when the child reaches majority (can extend to allow high school
graduation)
o a child is emancipated, marries, joins the military or dies or
o when there is a substantial change in circumstances.
Florida Statutes.


§61.13(1)(a),
The change in circumstance must be significant, material,
involuntary and permanent in nature.
The petioner and respondent must file financial discovery that includes: (Rule
12.285 Fla. Fam. L.R.P.)
o financial affidavit
o past year tax returns
o IRS forms W-2, 1099 and K-1
o Pay stubs or other evidence of earned income for past 3 months.
o A statement identifying amount and source of any other income.

Look at previous jobs and income and compare to current amounts.

Analysis is the same as when setting original child support obligation.

The Department of Revenue will ask questions about income.

If no proof of income is available, look at current income by testimony and
AWI.
201

Impute income if necessary.

Adjudicate arrears, determine repayment.

Add arrears payment to regular monthly amount.

Issue amended income deduction order.

Do health insurance breakdown to include in the order.
202
Motion for Contempt Hearing Checklist
NOTE: You must give the parties the “key to the jail.”

Swear in Department of Revenue representative and clerk, then parties.

Determine if parties were served/noticed. The father has a continuing
obligation to update his address from the initial child support hearing.

If the father fails to attend the hearing after being served, the court can hold
him in contempt and/or issue a writ of bodily attachment. Spencer v. Spencer,
311 SO.2d 822 (Fla. 3d DCA 1975). The court can set a reasonable purge
amount and direct that upon arrest, contemnor is to be brought before the
court w/in 48 hours for a hearing to determine whether or not he can pay, and
if so, if failure to pay was willful.

If the father is not in court, see if AWI has any proof of income.

The burden of proof is on petitioner (preponderance of the evidence) that:
o There is a prior court order requiring child support payments. Put
payment history on record. The clerk can testify as to the amounts.
o The respondent has failed to make timely child support payments (not
court costs or fees).
o Then burden shifts to respondent to show that he no longer has the
ability to pay – not willful non-payment.
o MUST establish the respondent has the present ability to pay and willful
refusal to pay. Gregory v. Rice, 727 So.2d 251(1999).

Make detailed fact finding of present circumstances to determine
purge amount.

Inquire as to jobs, all assets, cash and current conditions.

If sentenced to jail, the party must have the ability to purge.

Find in contempt of court for failing to comply with order of court, or if not
then in compliance and issue compliance order.

If in contempt, the court can either order incarceration or give the respondent
30 days to come up with the money and comply. If not paid in 30 days, the
court can also order a writ and purge.
203

Determine if the respondent has any money with him. He/she can make a
direct payment in court.

Establish amount of arrears and form of payment. Adjudicate arrears.

Verify amount and order court costs.

If the respondent fails to appear, there is a presumption that the respondent
can pay.
204
205