Legal Overview of Child Support

Topics on this page

• What is Child Support?
• When do courts get involved?
• Elements of the Child Support Order
• Child support can be more than just a check
• When is no support order appropriate?
• Jurisdiction
• Other Responsibilities of the Parents
• Courts can order payment even though the child has reached majority.
• Child support is not tax deductible.
• Incarcerated parents

What is child support?

Both parents have a legal duty to support their children based on their ability to provide that support. Child support is a legal obligation that requires one parent to provide financial assistance to the other parent for the care and well-being of their child or children. A court typically orders it to ensure that both parents contribute to the financial needs of their children, even if the parents are no longer in a romantic or marital relationship. Child support is intended to cover various expenses related to raising a child, including but not limited to:

• Childcare expenses
• Health insurance coverage
• Medical expenses
• Educational expenses
• Travel expenses

Since 1990, Maryland has had child support guidelines, which provide a formula for calculating child support based on a proportion of each parent's gross income. These guidelines are applied unless a party can show that the application of the guidelines would be unjust and inappropriate in their particular case. This article discusses the issue of child support when viewed in the context of a divorce or paternity action. Courts often make crucial decisions about how much child support a non-custodial parent must pay.

Read the Law: Md. Code, Family Law Title 12

When do courts get involved?

During a marriage or committed relationship, child support is rarely a concern for the court. Courts become involved when parents divorce or stop living together with their children as a family. In these situations, the court must often decide how much support the non-custodial parent must pay. The custodial parent is the parent who primarily resides with the child. The non-custodial parent does not primarily reside with the child, though they may have liberal visitation. 

Like child custody arrangements, the amount of child support can be decided by mutual agreement between the parents or by fighting it out in front of a judge. To avoid making child support a contested issue and avoid the legal expense of litigating the issue in court, both parents can agree to the appropriate amount of child support outside of court. If the parents are getting divorced, the child support agreement can become part of the marital separation agreement. Child support payments, like alimony, can be incorporated into the divorce judgment. 

NOTE:  Mutual agreements between parents that waive child support completely may not hold up as enforceable in court. The court may deem the agreement to not be in the child's best interests.
 

Read the Law: Md. Code, Family Law § 8-103

Elements of the Child Support Order

A child support order includes elements that specify the terms and conditions for child support payments. The typical elements of the order will address the amount of support, the payment schedule, and the duration of the support. The order may also address health insurance coverage, childcare expenses, and any other expenses related to the child's education, medical needs, or extracurricular activities. These elements are designed to meet the child's financial needs while providing a clear framework for the parents. 

The paying (non-custodial) parent will almost always be ordered to make a monthly money payment to the custodial parent. The order will typically read, in part, as follows:

"Father/mother (name) is ordered to pay directly to father/mother (name) for child support of Tom and Mary, the sum of $300 per month per child for a total of $600, payable one-half on the first and one half on the fifteenth day of each month, said payments to continue until each such child shall die, reach majority, become emancipated or until further order of court."

Important points to notice about this portion of the child support order:

1. It requires a direct money payment to the custodial parent: Many paying parents resent the child support order because it is made directly to the custodial parent and not the children. Some see it as a form of alimony. Because of this, some refuse to make the payments. However, this is not true. The direct payments are to be used to pay for the vital needs of the children, such as rent, food, and clothes.
2. The court keeps the authority (“retains jurisdiction”) to change the order: A child support order is not set in stone. It can be changed if conditions substantially change in the future. Either parent may later ask the court to raise or lower support.
   • Learn more about modifying child support.
3. The payments automatically end when the child reaches majority, dies, or becomes emancipated: This language automatically ends the support obligation when the child reaches majority (age 18 in Maryland except in certain circumstances) or dies. However, the issue of emancipation is often in dispute and may require the court to decide. A determination of emancipation is fact-specific but usually requires the child to marry or become self-supporting. 
   • Note: Child support will continue to be charged against you until you file in court to terminate it, resulting in the accrual of arrears.
      

Child support can be more than just a check.

The child support decree is not limited to an order of direct money payments to the custodial parent. The order often addresses other needs. Here is some sample language in a child support order:

• Insurance and healthcare: "As and for additional child support, father/mother (name) is ordered to maintain his/her children as beneficiaries on his/her health and life insurance policies available through his/her employment. Father/mother is further ordered to pay for one-half of all uninsured medical, dental, and ophthalmologic services provided for the children."
• Childcare: "As and for additional child support, father/mother shall pay directly to the ABC Daycare Cooperative the full cost of afternoon after-school daycare. However, should the children be enrolled in morning daycare, such expenses shall be the sole responsibility of the other parent." 
• Miscellaneous: "As and for additional child support, father/mother shall pay the round-trip plane and other reasonable costs of transporting the children for visitation with father/mother, as provided in the visitation provisions of this order. However, during visits of two weeks or more, the father's/mother’s child support payments to mother shall be reduced by $50 per month per child."

These examples show how flexible child support orders can be. The court has many choices in creating a support arrangement it thinks is best for the children. The court will try to maintain the lifestyle the children enjoyed before the divorce if the parents' finances permit.  A parent can be ordered to maintain insurance for the benefit of children, pay medical bills, private school expenses, daycare costs, transportation bills, music lessons and to pay (or partially pay) for other aspects of a child's day-to-day life. Support can also be reduced if the non-custodial parent has physical custody of the children for at least 35% of the time.

Cases filed on or after October 1, 2020 - For child support cases filed on or after October 1, 2020, the threshold of overnight stays that confers shared physical custody for purposes of child support calculations is more than 25%. There is also a new formula for calculating child support obligations when a parent with shared physical custody keeps the child or children overnight for more than 25% but less than 30% of the year.

Read the Law: Md. Code, Family Law § 12-201, § 12-202, § 12-204
Read the Case: Payne v. Payne, 132 Md.App. 432 (Court of Special Appeals 2000)

When is no support order appropriate?

In some circumstances, a court can decide that a child support order is not appropriate. These situations include when the parent

• lives with the child and is contributing to the child's support, OR
• is unemployed, has no financial resources to pay child support, and
  • is incarcerated or expected to remain incarcerated for the remainder of the time that the parent has a legal duty to support the child,
  • is institutionalized in a psychiatric care facility and is expected to remain institutionalized for the remainder of the time that the parent has a legal duty to support the child,
  • is totally and permanently disabled, is unable to obtain or maintain employment, and has no income other than Supplemental Security Income or Social Security Disability Insurance benefits, or
  • is unable to obtain or maintain employment in the foreseeable future due to compliance with criminal detainment, hospitalization, or rehabilitation treatment plan.

Read the law: Md. Code, Family Law § 12-202

Jurisdiction

Only the proper court has the power to order child support.

For a court to have jurisdiction, or legal authority, to force a parent to pay child support, it must have personal jurisdiction over the parent. Personal jurisdiction means that the parent paying the support must have a connection with Maryland. A court that does not have proper jurisdiction does not have the legal authority to order child support.

A state that entered a support order has the power to change it.

Once a valid child support order is entered, that state continues to have the power to award child support even though it no longer has contacts with the supporting parent or children. 

Read the Law: Md. Code Family Law §1-201

Child Support Hearings

Parties should attend any scheduled hearing on child support. If either parent fails to attend, the court may issue an order that assigns income that is not correct. A parent can also be held in contempt of court if they miss a court hearing. The parent does not have to agree to a certain amount of child support at the child support office. If they disagree with how much is recommended at the child support office, they can request a court hearing to determine the correct amount.

Child Support is an Enforceable Order of the Court.

A child support order is as enforceable as any other court judgment or decree. Thus, a parent who is not paid child support can use all legal tools available to enforce the order. These tools include wage garnishments, wage assignments, contempt of court decrees, and seizing the non-paying parent’s property by writ of execution.

Learn more about enforcement and collection of child support.

Other Responsibilities of the Parents

The other lawful responsibilities of both parents will also be looked into in determining child support. For example, if the non-custodial parent is paying child support from a previous marriage (a rather common occurrence), the court will consider that obligation. Necessities of life, such as rent and food will also be taken into account by the court. However, the court will not reduce child support payments to make it easier for the parent to pay discretionary obligations. For example, a parent cannot provide for a charity or buy an expensive car at the expense of providing for their own children.

To assist the court in determining the proper amount of support, both parties are required to prepare a financial declaration that is signed under penalty of perjury. Each parent will be required to fully disclose:

• their income (from all sources, frequently including money earned by a new spouse or intimate partner), 
• the nature and extent of their property holdings such as bank accounts, investments, and real property, and 
• their financial obligations. 

The court will rely heavily on these documents in making the order. So, it is in the children's best interests that the declarations are filled out completely and honestly.

Child support negotiations are often adversarial. When parents cannot agree on a support agreement (sometimes after court-ordered mediation), the court will hold a hearing to decide the issue. This is sometimes done in a chambers conference to save time. At the hearing, each spouse (or their lawyer) will have the opportunity to cross examine the other on issues relevant to the support issue. Both sides can subpoena documents and call witnesses to support their position regarding how much child support should be paid. Child support orders can also be appealed, although the likelihood of success is very slim.

Courts can order payment even though the child has reached majority.

Maryland law requires continuing child support payments for children who turn 18 while still enrolled in high school.

The court can order a parent to pay for their children's college expenses as child support if the parents have made an agreement and that agreement is incorporated into a court order.

Read the Law: Md. Code, General Provisions § 1-401

Additionally, if a child has reached the age of majority but is not able to support themselves due to mental or physical infirmity, a parent has a duty to provide the destitute adult child with food, shelter, care, and clothing.

Read the Law: Md. Code, Family Law §§ 13-101 and 13-102

Child support is not tax deductible.

If you make child support payments, you cannot deduct those payments from your income when you file your taxes.

If you receive child support payments, you do not include those payments as income when you file your taxes.

These tax rules are the same for federal and Maryland income tax.

Incarcerated Parents

The law allows courts to decline to require a non-custodial parent to pay child support in certain circumstances. For this to happen, the non-custodial parent must:

1. be unemployed,
2. have no financial resources to be able to pay child support, and
3. is expected to be incarcerated for the duration of the time the law would require the parent to pay support. 

The non-custodial parent may also not be required to pay child support if they meet the above criteria, but instead of being in prison, the parent is:

• in a psychiatric facility, 
• totally and permanently disabled, or 
• cannot get a job because of criminal detainment, hospitalization, or rehabilitation treatment plan.

Read the Law: Md. Code, Family Law § 12-202

When a parent goes to jail, the court can consider that to be a material change in circumstance. To learn more about changing a current child support order, see Modifying Child Support.

Read the Law: Md. Code, Family Law § 12-104