Legal Support for the Child and R.A. 9262

Art. 105. During the pendency of legal separation proceedings the court shall make provision for the care of the minor children in accordance with the circumstances and may order the conjugal partnership property or the income therefrom to be set aside for their support; and in default thereof said minor children shall be cared for in conformity with the provisions of this Code; but the Court shall abstain from making any order in this respect in case the parents have by mutual agreement, made provision for the care of said minor children and these are, in the judgment of the court, well cared for. (7a, Act 2710)

R.A. 9262

Through all the family cases that we’ve handled, we’ve come to accept, without discounting the contrary, the sad fact that bad blood exists between the opposing parties (e.g., estranged spouses in annulment/separation/property cases, siblings and relatives in estate proceedings). In particular, with respect to custody-support cases over children, it’s easily understandable that custody is one of the more contested issues. However, the issue on child support should not be as complicated.

Well, it shouldn’t be as complicated, but reality makes it so.

Articles 195 and 196 of the Family Code enumerate the persons who are under obligation to support each other, thus: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; (5) Legitimate brothers and sisters, whether of full or half-blood; and (6) Brothers and sisters not legitimately related, whether of the full or half-blood, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.

On the other hand, the amount of support should be in proportion to the resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

If you’re a parent, it is safe to assume that you would want the best for your child and you wouldn’t hesitate to provide adequate support. However, it’s unfortunate that when it comes to support for the common children (whether legitimate or illegitimate), so many fathers still fail (or worse, simply refuse) to provide adequate support. Whatever the reason is, and regardless of whether or not these reasons are correct, the problem became pervasive, so much so that Congress saw it fit to “criminalize” (only against fathers) the withholding of support in certain instances. Not everyone knows that this is covered under Republic Act No. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004“.

Child Support: A Historical Perspective

• In English common law, child support was a moral, but not a legal obligation. The obligation was placed upon the father, while no obligation on the mother. In contrast, most jurisdictions in the United States consider child support a father's legal duty. At first, a father's obligation was only enforceable through common law doctrine. Eventually lawmakers drafted statutes outlining a father's paternal duty to provide child support.

Child Support Guidelines

• Each state is required to adopt child-support guidelines to avoid inadequate and inconsistent awards. State guidelines provide specific numeric criteria for award computations. Under certain circumstances, deviation from guidelines may be permitted.

  Child support guidelines vary from state to state. Most states have used one of three common methods in calculating support awards. These approaches are percentage of income, income shares and the Melson formula.

Percentage of Income

• The percentage-of-income method uses a fixed percentage of the noncustodial parent's income to calculate support awards. Usually the number of children may be a relevant variable in the formula. However, some states permit consideration of other factors. Many times by not considering multiple factors, inequality may occur. For example, a mother with a part-time, low-paying job may receive the same award as a mother with a full-time, high-paying career.

Income Shares

• The income-shares method attempts to provide children the same share of parental income they would have received if the family stayed together. This method combines the income of both parents. A basic support obligation is then computed and allocated in proportion to income. The custodial parent is assumed to be paying his or her share through direct expenses of caring for the children.

The Melson Formula

• The Melson formula combines aspects from both the percentage-of-income method and the income-shares approach. In this method, the noncustodial parent is first entitled to keep a minimum level of income for essential living expenses. Until basic child needs have been met, the noncustodial parent is not allowed to keep income above the minimum level. Once needs are met, a percentage of remaining income is allocated to the support payment.

Some Questions about Child Support Payment:

What is the legal definition of child support?

Child support is your obligation to support your child financially, so the "support" there refers to money.

What factors determine the award of child support?

The awarding of child support depends a lot on your income and the percentage of time you spend with the child. There's other variables in there too. Generally, the more time you spend with your child, the less you will have to pay in child support if you're the parent making more money.

Which parent pays child support?

Well, technically, both parents pay child support. I mean, if you're raising a child and you're paying money, the other person is spending the time and paying in other ways. Both parents technically pay child support. However, if you are a higher income earner, with less custodial time, you will probably be the paying parent.

Can my ex-spouse and I make our own child support arrangements?

There is a guideline and you can't ever waive child support or try to pay less than what you have to pay, but you can make an agreement with the other party if it's not too far from the guideline.

Do I have to pay support when my children reach adulthood?

The family code says you're obligated to pay child support until the child reaches 18, or completes high school and is 19.

What can I do if my ex-spouse won't pay child support?

Generally if your ex-spouse isn't paying support you would have to find a way to enforce the order. You could get a contempt, but the problem with holding people in contempt is that they get thrown in prison and they can't pay child support then either so you have to be careful in what you do. However, generally, if they do have a job and you have an order, I would have your lawyer prepare a wage-assignment order, like a garnishment, and fax it to their employer. They will garnish his wages and send it automatically to you.

Do I have to allow visitation if my ex-spouse is behind on paying child support?

Even if your ex-spouse is behind on child support payments, you still have to allow visitation. Just because somebody's not paying child support, it doesn't mean that he doesn't get to see his kid.

Do I still owe child support if my ex-spouse refuses visitation rights?

You still owe child support even if your ex-spouse refuses visitation. Even if your ex-spouse is not letting you see your children, you still are obligated to pay your support. What you would do in that situation is go to your lawyer and file something against the ex-spouse that's not letting you see the children. However, you still have to continue with your obligations to pay support.

What are the legal consequences of not paying child support?

There are a lot of things that can happen to you if you don't pay child support. One of them is the other side files for contempt. You could be in contempt with the court, which means you can end up in prison. I've heard of some people getting their drivers' licences taken away. If you're a notary public they'll just take away your licence to work. In some cases they'll just throw you in prison because not paying child support constitutes child abuse.

Can a child support award be modified?

Yes, a child support award can be modified. Let's say you lose your job; you would go in and ask the court for a modification. If you injured yourself and can't work anymore then your child support payments would be modified. It's all based on the ability to pay. You can only get $100 from a tree that has $100. So, if you found out that your ex-spouse has gone from a $100,000 to a $500,000 job and you have proof, you would go in and try to modify the child support award and get more support. You can't modify a child support award unless there's a change of circumstance that warrants the modification. Sometimes if you're the one paying support and you get remarried and have two new kids, those would constitute hardship and you could go in and modify your child support to go downward.

What do I do if I can't pay child support?

It is very rare that you wouldn't be able to pay child support because the judge wouldn't order you to pay support if you couldn't, but if for some weird reason you become disabled, and you're no longer working and you can't pay child support, I would go in and ask the judge to modify your support payments, and at the hearing explain to the judge what's happening with your life.

How do I petition the court to change my support or custody status?

Anytime you want to modify something, you need to file what's called an 'Order to Show Cause' in order to modify your support or custody status. It's kind of like a motion to the court. When I say motion, you're basically moving the court to do something; you're asking the court for relief. So, you would go and prepare this paperwork, and then you would get a hearing. You've got to file papers, the judge will read it, and set up a hearing. I would go to your lawyer to do this, or some kind of legal aid clinic