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John Grosz, President
Ryan Brech, Vice President
Steve Mathis, Treasurer
Brian Martin, Secretary
Open, West River Rep.
James Zajicek, East River Rep.
Roger M. Baron
This was clarified in Testimony by a representative from the Family Law Committee, SD ABA. She recognized this is from the Supreme Court and noted that visitation is not a parent's right, it is the children's right to see their children.
I believe you asked if a parent cannot pay child support, should they have equal shared custody. This was a tough one and I think the persons you asked were not sure.
I sincerely want to say that our organization strongly supports a parent's duty to pay their child support and we support the enforcement of collection of this through Child Support Enforcement. I would add that one of my requirements for members coming into our organization when I talk to them is some clue that they want to be part of our organization because they believe that both parents are equally important to a child and their children deserve this. If I get any indication that they are there for reduced child support, I discourage them from joining and send them the other way.
For us, Child Support is not the issue. I think that is why people were stumbling because they hadn't considered Deadbeat Parents when it comes to this bill. We are good loving parents to our children. We are also aware, through our guidelines that "no support does not mean no visitation and no visitation doesn't mean no child support - and I believe this is a Federal law or mandate ( I have yet to find it but recall seeing something on this before). I guess that added to the confusion.
It was a good question to raise and I have a similar concern too. However, I am also concerned if we deny access to a child, given the importance of fathers and mothers to their children, are we punishing the parent or are we really punishing the child? I think we are primarily punishing the child. And I have a feeling that is why this is in the Standard Guidelines. In any case, I believe your concern, and ours is being or can be addressed three ways.
First, the following excerpt from the 2003 South Dakota Minimum Guidelines (underlines already in guidelines):
1.4 Withholding Support or Visitation. Neither visitation nor child support is to be withheld because of either parent's failure to comply with a court order. Only the court may enter sanctions for non-compliance. Children have a right both to support and to visitation, neither of which is dependent upon the other. In other words, no support does not mean no visitation, and no visitation does not mean no support. If there is a violation of either a visitation or a support order, the exclusive remedy is to apply to the court for appropriate sanctions.
Secondly, under SDCL 25-7-6.14 - the Shared Responsibility formula, in the second paragraph, you see this question is addressed and underlined as well.
SDCL 25-7-6.14 Abatement of portion of child support -- Shared responsibility cross credit. As used in this section, basic visitation means a parenting plan whereby one parent has physical custody and the other parent has visitation with the child of the parties. In a basic visitation situation, unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order an abatement of not less than thirty-eight percent nor more than sixty-six percent of the child support if:
(1) A child spends ten or more days in a month with the obligor; and
(2) The days of visitation and the abatement amount are specified in the court order.
The court shall allow the abatement to the obligor in the month in which the visitation is exercised, unless otherwise ordered. The abatement shall be pro-rated to the days of visitation. It shall be presumed that the visitation is exercised. If the visitation exercised substantially deviates from the visitation ordered, either party may file a petition for modification without showing any other change in circumstances.
As used in this section, shared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents share the duties, responsibilities, and expenses of parenting. In a shared responsibility situation, unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order a shared responsibility cross credit. The cross credit shall be calculated by multiplying the combined child support obligation using both parents' monthly net incomes by 1.5 to arrive at a shared custody child support obligation. The shared custody child support obligation shall be apportioned to each parent according to his or her net income. A child support obligation is computed for each parent by multiplying that parent's portion of the shared custody child support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are offset, with the parent owing more child support paying the difference between the two amounts. It shall be presumed that the shared responsibility parenting plan is exercised. If the parenting plan exercised substantially deviates from the parenting plan ordered, either party may file a petition for modification without showing any other change in circumstances.
The court shall consider each case individually before granting either the basic visitation or shared responsibility adjustment to insure that the adjustment does not place an undue hardship on the custodial parent or have a substantial negative effect on the child's standard of living