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Footnotes for 'If They Can Do Parenting Plans, They Can Do Child Support Plans'

June 2008

These are the footnotes for the article If They Can Do Parenting Plans, They Can Do Child Support Plans by Stephen Erickson

[1].    Seeinfra Part II.C.

[2].    The first use of the checkbook procedure was by Erickson Mediation Institute in 1981.  Following the success of the procedure, Erickson reported his findings in 1988.  Stephen K. Erickson, The Legal Dimension of Divorce Mediation, inDivorce Mediation Theory and Practice 108, 105-24 (Jay Folberg & Ann Milne eds., 1988) [hereinafter The Legal Dimension]. See alsoStephen K. Erickson & Marilyn S. McKnight,Mediating Divorce, A Step-by-Step Manual (1998).  Parents first create a budget of expenses incurred on behalf of the children (most often with the help of a mediator) and they determine which expenses are to be shared, such as clothing, uncovered medical and other expenses and which expenses are paid independently by each parent without sharing the costs, such as vacation, travel, recreation and food and eating out.  The Legal Dimension,supra, at 112.  Parents use a joint checking account or joint debit card to pay the shared expenses and each parent may contribute to this account equally or on a pro rata, proportional basis according to their gross or net incomes.  Id. at 113.

[3].    Seeinfra Part II.B.

[4].    See infra Part II.B.

[5].    Seeinfra Part II.C.

[6].    Seeinfra Part II.C.

[7].    See infra Part III.

[8].    SeeMinn. Stat. § 518.1705 (2004). (detailing the statutory requirements for the proper implementation of a parenting plan).  Parenting plans change the focus away from the adversarial “all or nothing” question of custody and who was the most fit or unfit in the past.  The process refocuses on the more easily answered question of what future parenting arrangements can be established that will allow both divorcing parents to remain significant and involved with their children.  The goal of the Minnesota Parenting Plan Act, as stated by its chief author Rep. Andy Dawkins is fivefold: “1) to reduce the number of costly legal battles in custody and visitation proceedings; 2) to eliminate the deep wounds that result from custody and visitation litigation; 3) to improve the future relations between the parties; 4) to maximize the involvement of both parents; and 5) to create healthier families.”  Peter V. Rother, Balancing Custody Issues: Minnesota’s New Parenting Plan Statute, 57Bench & B. Minn. 27, 27 (2000) (citing Parenting Plans: Hearing on H.F. 3311 Before the H. Civil Law Comm., 2000 Leg., 81st Reg. Sess. (Minn. 2000) (statement of Andy Dawkins, Member, House Civil Law Committee)).

[9].    See infra Part IV.

[10].    “Flexibility is particularly attractive in custody disputes because mediation allows  parents to design parenting plans that more accurately address their lifestyles, work schedules, and unique family dynamics, than would a rigid custody plan  ordered by a judge.  A process that promotes a solution well suited to the litigants’ interests is more likely to increase the participants’ perception of fairness of the process . . . ” Alexandria Zylstra, The Road From Voluntary Mediation to Mandatory Good Faith Requirements: A Road Best Left Untraveled, 17J. Am. Acad. Matrim. Law. 69, 73 (2001).

[11].    See Chief Justice Robert A. Mulligan’s Announcement Regarding the Child Support Guidelines, http://www.mass.gov/courts/cjamcsg2006.html (last visited January 16, 2006) (“Any Guidelines which may be promulgated will invariably spawn criticism, but I believe that it is essential that we conduct an in-depth analysis.”).

[12].    “The primary goal of moving from a ‘percent of obligor’ child support system to an ‘income shares’ model is to create more fair and equitable child support guidelines.  Testimony before the legislature and hundreds of anecdotal submissions to the chief author suggested that the present system is perceived to be unfair to obligors.”  Senator Tom Neuville, The New Income Shares Model for Calculating Child Support in Minnesota, 15Fam. L. F. (Minn. St. B. Ass’n) 4, 4 (Winter 2006).

[13].    Id. “A fourth goal of the new guideline is to simplify the calculation of child support . . . . [by] [c]alculating support based upon gross income rather than net income [and] [c]reating a web-based child support calculator to help calculate support, parenting expense credits, and self support reserves.” Id.

[14].    “Yet, despite harsh penalties and a billion-dollar budget devoted to child support enforcement, compliance rates are still relatively low.”  Solangel Maldonado, Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent, 153U. Pa. L. Rev. 921, 961 (2005) (citingBureau of the Census, U.S. Dep’t of Comm., Child Support: 1999 tbl.4 (2000)).

[15].    See Marygold S. Melli, Guideline Review: Child Support and Time Sharing by Parents, 33 Fam. L.Q. 219, 225 (1999); Seealso Laura W. Morgan, Child Support Guidelines and the Shared Custody Dilemma, Divorce Litigation (Nov. 1998), available at http://www.childsupportguidelines.com/articles/art199906.html (exploring alternate theories of child support calculation).

[16].    Laura W. Morgan, The Constitutionality of Child Support Guidelines Redux (June 2003), http://www.supportguidelines.com/articles/art200306.html.

[17].    Alabama, Arizona, California, Colorado, Connecticut, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming all use the Income Shares model.  Jane C. Venohr & Robert G. Williams, The Implementation and Periodic Review of State Child Support Guidelines, 33 Fam. L.Q. 7, 10-11 (Spring 1999).

[18].    Alaska, Arkansas, Georgia, Illinois, Minnesota, Mississippi, Nevada, New Hampshire, New York, North Dakota, Tennessee, Texas, Wisconsin all use the Percentage of Obligor model, and the District of Columbia and Massachusetts use a Percentage of Obligor Hybrid model that is similar. Id.

[19].    Id.See also Paula Woodland Faerber, Empirical Study: A Guide to the Guidelines: A Longitudinal Study of Child Support Guidelines in the United States, 1 J.L. & Fam. Stud. 151, 157-60 (1999) (explaining various methods of determining child support obligations, including the Melson formula).

[20].    Faerber, supra note 19, at 158.

[21].    See id.

[22].    See Minn. Stat. § 518A.35 subdiv. 2 (2004).  See alsoMartin L. Swaden & Linda A. Olup, 14 Minnesota Practice: FamilyLaw § 7.7 (2nd ed. 2006) (explaining the calculation of child support in Minnesota as of January 1, 2007).

[23].    Neuville, supra note 12, at 5.

[24].    See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Parentage and Assisted Reproduction Problems Take Center Stage, 39Fam. L.Q. 919, chart 3 (Winter 2006), available at  www.abanet.org/family/familylaw/FLQchildsupport06.pdf.

[25].    Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343, (1988).

[26].    See Faerber, supra note 19, at 159-60.

[27].    See Del. Fam. Ct. R. 52(c); Haw. Rev. Stat. Ann. § 576D-7 (LexisNexis 2006); Mont. Code. Ann. § 40-6-116 (2006).  See also Faerber, supra note 19, at 158.

[28].    45 C.F.R. § 302.56 (2000).

[29].    See Faerber, supra note 19, at 152.

[30].    See id.  As Faerber explains:

Child support guidelines create a rebuttable presumption that the amount of the award under the guidelines is the correct amount of child support. While each state has established separate guidelines, the guidelines provide only a starting point for determining child support. Each state has also created methods and reasons for deviating from the guidelines. The deviations are based on items such as financial needs and resources of the child, financial needs and resources of the custodial parent, standard of living if the marriage had remained intact, physical and emotion [sic] condition of the child, financial needs and resources of the non-custodial parent, excessive or abnormal expenditures, concealment or fraudulent disposition of property, length of visitation and associated expenses. The most flexible of the deviations allows a court to deviate on the basis of fairness to the parties and other equitable principles.

Id.

[31].    In Minnesota, the new income shares child support formula calls for no payment of child support to either parent if the parenting time is equal and the parental incomes for child support is also equal.  See generally Michael McNabb & Diane Anderson, How to Calculate the Child Support Obligation With the New Income Shares Model,Fam. L.F., Winter 2006, at 13.

[32].    Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343, (1988).

[33].    Id.; See 45 C.F.R. § 302.56 (2000).

[34].    Family Support Act of 1988, Pub. L. No. 100-485, § 101, 102 Stat. 2343, 2344-45 (1988).

[35].    See Rother,supra note8, at 30 (explainingtestimony of Andy Dawkins about intent and expectations of Minnesota Parenting Plan legislation).

[36].    See 45 C.F.R. § 302.56 (2000).

[37].    See Jo Michelle Beld, Improving Child Support Guidelines in Minnesota: The “Shared Responsibility” Model for the Determination of Child Support, 28 Wm. Mitchell L.Rev. 791, 848-53 (2001) [hereinafter Improving Child Support Guidelines in Minnesota].  See also Jo Michelle Beld, Revisiting “The Politics of Fatherhood”: Administrative Agencies, Family Life, and Public Policy,36Pol.Sci. & Pol. 713, 716-17 (2003) [hereinafter Revisiting “The Politics of Fatherhood”].

[38].    Improving Child Support Guidelines in Minnesota, supra note 37, at 849.  See also Ira Mark Ellman, Fudging Failure: The Economic Analysis Used to Construct Child Support Guidelines U. Chi. Legal F. 167, 168 (2004).

[39].    In 1983, Minnesota adopted a formula that originated in Wayne County, Michigan, and was brought to Minnesota by a group of Family Court Referees attending a conference there.  In an  interview with William Haugh a former Ramsey County Family Court Referee who attended that conference, Mr Haugh stated it was his  recollection that  the guidelines formula Minnesota adopted  in 1983  first in three metropolitan counties by court rule and then later statewide, was based upon a retrospective averaging of Wayne County Michigan judge’s child support rulings over a six-month period of time in the late ’60s or early 70’s.  Interview with the late William E. Haugh, Jr., Partner, Collins, Buckley, Sauntry, & Haugh, Attorneys at Law, in Minneapolis, Minn. (Dec. 2002) [hereinafter Interview with William  E. Haugh].

[40].    Id.

[41].    Seesupra Part II.A.

[42].    See generally Scott Altman, Lurking in the Shadows, 68S. Cal. L. Rev. 493 (1995) (discussing the problem of trading days for dollars).

[43].    See Laura Wish Morgan, The Custodial Parent’s Duty to Account to the Non-custodial Parent for how Child Support Money is Spent (April 2000), at http://www.childsupportguidelines.com/articles/art200004.html.

[44].   See Family Support Act of 1988 § 101, 42 U.S.C. § 666(b)(3)(A) (2000).

[45].    Valento v. Valento 385 N.W.2d 860, 862-63 (Minn. Ct. App. 1986) (noting that a party’s support obligation is determined by his or her guideline amount for the period of time the other parent has custody).

[46].    Minn. Stat. § 518.36 subdiv. 2 (2004).

[47].    Id.

[48].    Telephone interview with Michael McNabb, Partner, Michael McNabb Law Office, in Burnsville, Minn. (Jan. 2 & 25, 2007).

[49].    See generally Altman, supra note 42 (discussing parties trading custody or visitation time for child support).

[50].    Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343, (1988).

[51].    Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81Notre Dame L. Rev. 325, 350-51 (2005).  “Over the last three decades, then, both the federal and state governments have constructed massive bureaucracies focused on making non-custodial parents - mostly low-income fathers - pay child support.”  Id. at 350.

[U]nder the child support distribution scheme for families on welfare, the custodial parent assigns her right to support and the state retains support paid by non-custodial parents as reimbursement for welfare benefits. Thus, the ever-increasing resources devoted to collect child support from low-income fathers have no direct impact on the financial well being of children on welfare.

Id. at 352 (footnote omitted).

[52].    Black's Law Dictionary 257 (8th ed. 2004).

[53].    See Rother, supra note 8.

[54].    See generally Carol Rogerson, Child Support Under the Guidelines in Cases of Split and Shared Custody, 15Can. J. Fam. L. 11, 20-33 (1998) (discussing the difficulties of accounting for money spent while with the children).

[55].    See, e.g., Mo. R. Civ. P. Form 14.  One state, Missouri, has recognized the costs contributed by the non-custodial visiting parent by reducing the child support payments for the non-custodial parents who consistently exercises visitation privileges.  Id.

[56].    Seegenerally Rother, supra note 8, at 27-28. (citing Parenting Plans: Hearing on H.F. 3311 Before the H. Civil Law Comm., 2000 Leg., 81st Reg. Sess. (Minn. 2000) (statement of Andy Dawkins, Member, House Civil Law Committee)).

The legal adversarial system asks, “Who will be awarded custody of the minor children?” The result is that the parent who is not awarded custody is then labeled a non-custodial, visiting parent.  The only other place we use the word “custody” is with prisoners. The only other place in our language that we use the word “visitation” is at the funeral parlors. Creating parenting plans teaches people cooperation. It is not necessary for them to be cooperative in the first place.  After all, they are getting divorced.

Interview with Marilyn McKnight, President-Elect of Association for Conflict Resolution and Family Mediator, Erickson Mediation Institute, in Minneapolis, Minn. (Dec. 2006).

[57].    Minn. Stat 518.1705 Subd 8 (2007)

[58].    Robert Emery reports in his research about randomly assigning people to mediation or litigation inRobert E. Emery, The Truth About Children and Divorce 136-37 (2004).  After randomly assigning seventy-one families either to mediation or to court custody battles, twelve years after going through court or mediation, 28% of the mediation non-residential parents saw their children once a week as opposed to 9% for the litigation group.  Id. at 136.  “In the litigation group, 36[%] of nonresidential parents had not seen their children in the last year compared with 16[%] of the non-residential parents who mediated.”  Id. at 137.  “Differences in telephone contact were even greater, [which is important since there were some moves]. . . .  Among families who mediated, fully 59[%] of non-residential parents talked to their children weekly or more often compared with just 14[%] of non-residential parents who litigated.”  Id.

[59].    Id. at 136-37.

[60].    Rogerson, supra note 54, at 28 (quoting Rosati v. Dellapenta, 3550 11868/96, [1997] O.J. 5047 QUICKLAW (Ont. Ct. J. Gen. Div. Nov. 12, 1997)).

[61].    See Minn. Stat. § 518A.36 subdiv. 2 (2004 & Supp. 2006).

[62].    See id.

[63].    367 N.W.2d 633, 635-36 (Minn. Ct. App. 1985).

[64].    385 N.W.2d at 862-63.

[65].    See id.; Hortis, 367 N.W.2d at 635-36.

[66].    Rogerson, supra note 54, at 26.

[67].    Id. at 20.

[68].    Rosati v. Dellapenta, 3550 11868/96, [1997] O.J. 5047 QUICKLAW (Ont. Ct. J. Gen. Div. Nov. 12, 1997)).

[69].    See Faerber, supra note 19, at 160-224.

[70].    Kathleen A. Hogan, The Big Case: Issues in High Income/High Asset Cases; Child Support in High Income Cases, 17J. Am. Acad. Matrim. Law.. 349, 351, 355 (2001); Gregory M. Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25N. Ky. L. Rev. 281 (1998).

[71].    Hogan, supra note 70, at 355 (emphasis added).

[72].    McNabb & Anderson, supra note 31, at 12-14.

[73].    See Bartlett, supra note 70, at 301-303 (describing the complicated and multiple considerations made in creating child support statutes in the state of Kentucky).

[74].    See 45 C.F.R. § 302.56 (2000).

[75].    See Faerber, supra note 19, at 160-224.

[76].    Ellman, supra note 38, at 179 n.20 (citing the policy of New York state and Ohio as posted on their child support web pages).

[77].    See Faerber, supra note 19, at 160-224.

[78].    See Ellman, supra note 38, at 167.

[79].    See Faerber, supra note 19, at 160-224.

[80].    Minnesota adopted child support Guidelines in 1983.  1983 Minn. Laws 1757, 1757-59.  The original Minnesota statute did not require sharing of day care costs which was added in 1993.  1993 Minn. Laws 2267, 2270.  In 1998 the informal sharing of uncovered medical expenses was made mandatory by statutory enactment. See e.g.,Improving Child Support Guidelines in Minnesota,supra note 37, at 817 nn.93-94 (explaining Minnesota statutory requirements for medical insurance constituting “medical support”).

[81].    See Minn. Stat. Ann. § 518.1705 (2004) (defining parenting plans).

[82].    Morton Deutsch, The Resolution of Conflict: Constructive and Destructive Processes 370 (1973).

[83].    Stockwell v. Stockwell, 775 P.2d 611, 615-16 (1989) (Johnson, J., concurring specially).

[84].    Id.  “The legal adversarial system asks, ‘Who will be awarded custody of the minor children?’ The result is that the parent who is not awarded custody is then labeled a non-custodial, visiting parent. In many ways, this question is much like the law school professor's example of an inappropriate leading question, the most famous of which is, ‘When did you stop beating your wife?’ Just as the wife-beating question assumes an answer by the way it is asked, the usual custody question assumes that it is necessary to determine two levels of ‘ownership’ of the minor children. This is absurd, because the question of ownership need not even be asked; the focus should be establishing the parenting obligations that must be practiced in the future by the spouses.”    Id. at 615 (citing The Legal Dimension, supra note 2, at 108-09.

[85].    See Oregon Statewide Family Law Advisory Committee (SFLAC), Oregon’s Integrated Family Court of the Future, 40Fam. Ct. Rev. 474, 480 (2002) [hereinafter Oregon Statewide Family Law Advisory Committee].

[86].    Id.

[87].    See infra Part I.B.1.b.

[88].    See Family Support Act of 1988, Pub. L. No. 100-485, § 101, 102 Stat. 2343, 2344-45 (1988).

[89].    See id.

[90].    SeeHortis, 367 N.W.2d at 635-36.  See alsoValento, 385 N.W. 2d at 862-63.  This is also the concept of requiring one parent to pay directly for health insurance by continuing the cost through employment as a deduction from one’s salary check.

[91].    SeeValento, 385 N.W. 2d at 862-63; see alsoBroas v. Broas, 472 N.W. 2d 671, 673-74 (Minn. Ct. App. 1991) (the Valento formula was used in a marital dissolution in order to equalize the parent’s incomes).

[92].    385 N.W. 2d 860.

[93].    SeeMinn. Stat. § 518A.36 subdiv. 2 (2004 & Supp. 2006).

[94].    See Interview with John Schulz, Partner, McGrann, Shea, Anderson, Carnival, Straugh, & Lamb, in Minneapolis, Minn. (Dec. 2006) (explaining his experiences with Post Decree problems experienced by many high conflict divorcing couples).

[95].    See Neuville, supra note 12,at 5. See also Faerber, supra note 19, at177 n.181 (Georgia allows for a deviation from the guidelines based upon “in-kind contribution of either parent”).

[96].    See Rogerson, supra note 54, at 20.

[97].    See Morgan, supra note 16.

[98].    Minnesota’s pre- January 1, 2007 “Percentage of Income of Obligor” model is discussed in Section II.A

[99].    Minnesota’s “Income Shares” model effective January 1, 2007 is discussed in Section II.A

[100].    An exhaustive search of the literature indicates no discussion of the checkbook method, although the author reports on this as early as 1988.  SeeStephen Erickson,Family Mediation Casebook: Theory and Process (1988). In the Texas case of Bailey v. Bailey, 987 S.W.2d 206 (Tex. App. 1999), Justice Quinn affirmed a trial court judge ruling that the lower court did not abuse its discretion in: “1) segregating a portion of the support into an account and specifying how the monies were to be expended; 2) requiring both parents to jointly determine how the sum would be spent; 3) retaining authority to disburse the sum if the parents could not jointly agree as to its disbursement; and 4) awarding to the child the funds remaining in the account once the obligation to support ends.”  Id. at 207.

[101].    See Faerber, supra note 19, at 162-265 (summarizing how child support guidelines in each state deal with various expenses).

[102].    Clothing costs are seen as a deviation in Arkansas. See Faerber, supra note 19, at 166 n.114.

[103].    See id. at 184 n.222.

[104].    Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, Florida, Hawaii,  Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming all have medical insurance premiums for the children addressed in their formulas as a separate consideration. See Venohr & Williams, supra note 17, at 19.

[105].    See id. at 20.

[106].    See McNabb & Anderson, supra note 31, at 12. Minn Stat 518A.41 Subd 5

[107].    Educational needs or extraordinary educational expenses are seen as specifically stated deviations in Alaska, Arkansas, California, Connecticut, Georgia, Hawaii, Idaho, Illinois, Kentucky, Louisiana, Maine, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, South Carolina, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and Wyoming. Faerber, supra note 19, at 162-265 (summarizing how child support guidelines in each state deal with various expenses).  Extraordinary educational expenses are added to the basic obligation in Vermont.  Id. at 246

[108].    Id. at 177.

[109].    Id. at 184.

[110].    Id. at 212.

[111].    Id. at 169.

[112].    Id. at 219.

[113].    Id. at 166.

[114].    See Neuville, supra note 12, at 5-6.

[115].    Fin Plan software is available through West Publishing as well as the Family Law Software available through Dan Caine.

[116].    Carrie Menkel-Meadow, Whose Dispute Is it Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83Geo. L.J. 2663, 2676-77 (1995).

[117].    Interview with O.J. Coogler, President, Family Mediation Association, in Atlanta, Ga. (August 1980).

[118].    Id.

[119].    Oregon Statewide Family Law Advisory Committee, supra note 85, at 480.

[120].    19W. Walton Garrett, Tennessee Practice, Tennessee Divorce, Alimony & Child Custody § 25:1 (2006).

[121].   In  many instances appellate  courts have disapproved child support awards

that exceeded what could be deemed to be the child's reasonable needs. Those courts which have articulated the rationale for their decisions generally have cited at least one of three reasons: 1) such support constitutes the distribution of the obligor parent's estate; 2) such support provides an inappropriate windfall to the child; 3) such support may also infringe upon a parent's right to direct the lifestyle of his or her children.

Hogan, supra note 70, at 353.  The “three ponies rule” is the humorous rule that says “no child needs three ponies” as a result of the guidelines formulas being applied to the extremely wealthy parent.  Id. at 352

[122].    Interview with Marilyn McKnight, President-Elect of Association for Conflict Resolution and Family Mediator, Erickson Mediation Institute, in Minneapolis, Minn. (Dec. 2006).

[123].    987 S.W.2d 206 (Tex. App. 1999).

[124].    See supra Part IV.

[125].    Minnesota adopted child support Guidelines in 1983.  1983 Minn. Laws 1757, 1757-59.  The original Minnesota statute did not require sharing of day care costs which was added in 1993.  1993 Minn. Laws 2267, 2270.  In 1998 the informal sharing of uncovered medical expenses was made mandatory by statutory enactment. See e.g.,Improving Child Support Guidelines in Minnesota,supra note 37, at 817 nn.93-94 (explaining Minnesota statutory requirements for medical insurance constituting “medical support”).