Senate Bill sb1060c2

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    Florida Senate - 2004                    CS for CS for SB 1060

    By the Committees on Judiciary; Children and Families; and
    Senator Campbell




    308-2112-04

  1                      A bill to be entitled

  2         An act relating to child support; amending s.

  3         61.30, F.S.; revising certain child care cost

  4         guidelines; revising the formula for

  5         determining child support obligations with

  6         respect to child care costs and federal tax

  7         credits for child and dependent care expenses;

  8         amending ss. 61.14 and 742.031, F.S.; providing

  9         for the modification of temporary support

10         orders; reenacting ss. 39.402(11),

11         39.521(2)(s), 61.13(1)(a) and (5), 61.14(1),

12         409.2563(1)(d), (2)(c), (4)(f), (5)(a), and

13         (7)(e), 409.2564(12), and 742.031(1), F.S.;

14         incorporating the amendments to s. 61.30, F.S.,

15         in references thereto; providing an effective

16         date.

17  

18  Be It Enacted by the Legislature of the State of Florida:

19  

20         Section 1.  Subsections (7) and (11) of section 61.30,

21  Florida Statutes, are amended to read:

22         61.30  Child support guidelines; retroactive child

23  support.--

24         (7)  Child care costs incurred on behalf of the

25  children due to employment, job search, or education

26  calculated to result in employment or to enhance income of

27  current employment of either parent shall be reduced by 25

28  percent and then shall be added to the basic obligation. After

29  the adjusted child care costs are added to the basic

30  obligation, any moneys prepaid by the noncustodial parent for

31  child care costs for the child or children of this action

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 1  shall be deducted from that noncustodial parent's child

 2  support obligation for that child or those children. Child

 3  care costs shall not exceed the level required to provide

 4  quality care from a licensed source for the children.

 5         (11)(a)  The court may adjust the minimum child support

 6  award, or either or both parents' share of the minimum child

 7  support award, based upon the following considerations:

 8         1.  Extraordinary medical, psychological, educational,

 9  or dental expenses.

10         2.  Independent income of the child, not to include

11  moneys received by a child from supplemental security income.

12         3.  The payment of support for a parent which regularly

13  has been paid and for which there is a demonstrated need.

14         4.  Seasonal variations in one or both parents' incomes

15  or expenses.

16         5.  The age of the child, taking into account the

17  greater needs of older children.

18         6.  Special needs, such as costs that may be associated

19  with the disability of a child, that have traditionally been

20  met within the family budget even though the fulfilling of

21  those needs will cause the support to exceed the proposed

22  guidelines.

23         7.  Total available assets of the obligee, obligor, and

24  the child.

25         8.  The impact of the Internal Revenue Service

26  dependency exemption and waiver of that exemption.  The court

27  may order the primary residential parent to execute a waiver

28  of the Internal Revenue Service dependency exemption if the

29  noncustodial parent is current in support payments.

30  

31  

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 1         9.  The impact of any federal tax credit for child and

 2  dependent care expenses, unless already considered pursuant to

 3  subsection (3).

 4         10.9.  When application of the child support guidelines

 5  requires a person to pay another person more than 55 percent

 6  of his or her gross income for a child support obligation for

 7  current support resulting from a single support order.

 8         11.10.  The particular shared parental arrangement,

 9  such as where the child spends a significant amount of time,

10  but less than 40 percent of the overnights, with the

11  noncustodial parent, thereby reducing the financial

12  expenditures incurred by the primary residential parent; or

13  the refusal of the noncustodial parent to become involved in

14  the activities of the child.

15         12.11.  Any other adjustment which is needed to achieve

16  an equitable result which may include, but not be limited to,

17  a reasonable and necessary existing expense or debt.  Such

18  expense or debt may include, but is not limited to, a

19  reasonable and necessary expense or debt which the parties

20  jointly incurred during the marriage.

21         (b)  Whenever a particular shared parental arrangement

22  provides that each child spend a substantial amount of time

23  with each parent, the court shall adjust any award of child

24  support, as follows:

25         1.  In accordance with subsections (9) and (10),

26  calculate the amount of support obligation apportioned to the

27  noncustodial parent without including day care and health

28  insurance costs in the calculation and multiply the amount by

29  1.5.

30         2.  In accordance with subsections (9) and (10),

31  calculate the amount of support obligation apportioned to the

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 1  custodial parent without including day care and health

 2  insurance costs in the calculation and multiply the amount by

 3  1.5.

 4         3.  Calculate the percentage of overnight stays the

 5  child spends with each parent.

 6         4.  Multiply the noncustodial parent's support

 7  obligation as calculated in subparagraph 1. by the percentage

 8  of the custodial parent's overnight stays with the child as

 9  calculated in subparagraph 3.

10         5.  Multiply the custodial parent's support obligation

11  as calculated in subparagraph 2. by the percentage of the

12  noncustodial parent's overnight stays with the child as

13  calculated in subparagraph 3.

14         6.  The difference between the amounts calculated in

15  subparagraphs 4. and 5. shall be the monetary transfer

16  necessary between the custodial and noncustodial parents for

17  the care of the child, subject to an adjustment for day care

18  and health insurance expenses.

19         7.  Pursuant to subsections (7) and (8), calculate the

20  net amounts owed by the custodial and noncustodial parents for

21  the expenses incurred for day care and health insurance

22  coverage for the child. Day care shall be calculated without

23  regard to the 25-percent reduction applied by subsection (7).

24         8.  Adjust the support obligation owed by the custodial

25  or noncustodial parent pursuant to subparagraph 6. by

26  crediting or debiting the amount calculated in subparagraph 7.

27  This amount represents the child support which must be

28  exchanged between the custodial and noncustodial parents.

29         9.  The court may deviate from the child support amount

30  calculated pursuant to subparagraph 8. based upon the

31  considerations set forth in paragraph (a), as well as the

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 1  custodial parent's low income and ability to maintain the

 2  basic necessities of the home for the child, the likelihood

 3  that the noncustodial parent will actually exercise the

 4  visitation granted by the court, and whether all of the

 5  children are exercising the same shared parental arrangement.

 6         10.  For purposes of adjusting any award of child

 7  support under this paragraph, "substantial amount of time"

 8  means that the noncustodial parent exercises visitation at

 9  least 40 percent of the overnights of the year.

10         (c)  A noncustodial parent's failure to regularly

11  exercise court-ordered or agreed visitation not caused by the

12  custodial parent which resulted in the adjustment of the

13  amount of child support pursuant to subparagraph (a)10. or

14  paragraph (b) shall be deemed a substantial change of

15  circumstances for purposes of modifying the child support

16  award. A modification pursuant to this paragraph shall be

17  retroactive to the date the noncustodial parent first failed

18  to regularly exercise court-ordered or agreed visitation.

19         Section 2.  Subsection (9) is added to section 61.14,

20  Florida Statutes, as amended by chapter 2003-402, Laws of

21  Florida, to read:

22         61.14  Enforcement and modification of support,

23  maintenance, or alimony agreements or orders.--

24         (9)(a)  A court may, upon good cause shown, and without

25  a showing of a substantial change of circumstances, modify,

26  vacate, or set aside a temporary support order before or upon

27  entering a final order in a proceeding.

28         (b)  The modification of the temporary support order

29  may be retroactive to the date of the initial entry of the

30  temporary support order; to the date of filing of the initial

31  petition for dissolution of marriage, initial petition for

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 1  support, initial petition determining paternity, or

 2  supplemental petition for modification; or to a date

 3  prescribed in paragraph (1)(a) or s. 61.30(11)(c) or (17), as

 4  applicable.

 5         Section 3.  Subsection (4) is added to section 742.031,

 6  Florida Statutes, to read:

 7         742.031  Hearings; court orders for support, hospital

 8  expenses, and attorney's fee.--

 9         (4)(a)  A court may, upon good cause shown and without

10  a showing of a substantial change of circumstances, modify,

11  vacate, or set aside a temporary support order before or upon

12  entering a final order in a proceeding.

13         (b)  The modification of the temporary support order

14  may be retroactive to the date of the initial entry of the

15  temporary support order; to the date of filing of the initial

16  petition for dissolution of marriage, petition for support,

17  petition determining paternity, or supplemental petition for

18  modification; or to a date prescribed in s. 61.14(1)(a) or s.

19  61.30(11)(c) or (17), as applicable.

20         Section 4.  For purposes of incorporating the amendment

21  to section 61.30, Florida Statutes, in references thereto,

22  subsection (11) of section 39.402, Florida Statutes, is

23  reenacted to read:

24         39.402  Placement in a shelter.--

25         (11)  If a child is placed in a shelter pursuant to a

26  court order following a shelter hearing, the court shall

27  require in the shelter hearing order that the parents of the

28  child, or the guardian of the child's estate, if possessed of

29  assets which under law may be disbursed for the care, support,

30  and maintenance of the child, to pay, to the department or

31  institution having custody of the child, fees as established

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 1  by the department.  When the order affects the guardianship

 2  estate, a certified copy of the order shall be delivered to

 3  the judge having jurisdiction of the guardianship estate. The

 4  shelter order shall also require the parents to provide to the

 5  department and any other state agency or party designated by

 6  the court, within 28 days after entry of the shelter order,

 7  the financial information necessary to accurately calculate

 8  child support pursuant to s. 61.30.

 9         Section 5.  For purposes of incorporating the amendment

10  to section 61.30, Florida Statutes, in references thereto,

11  paragraph (s) of subsection (2) of section 39.521, Florida

12  Statutes, is reenacted to read:

13         39.521  Disposition hearings; powers of disposition.--

14         (2)  The predisposition study must provide the court

15  with the following documented information:

16         (s)  If the child has been removed from the home, a

17  determination of the amount of child support each parent will

18  be required to pay pursuant to s. 61.30.

19  

20  Any other relevant and material evidence, including other

21  written or oral reports, may be received by the court in its

22  effort to determine the action to be taken with regard to the

23  child and may be relied upon to the extent of its probative

24  value, even though not competent in an adjudicatory hearing.

25  Except as otherwise specifically provided, nothing in this

26  section prohibits the publication of proceedings in a hearing.

27         Section 6.  For the purpose of incorporating the

28  amendment to section 61.30, Florida Statutes, in references

29  thereto, paragraph (a) of subsection (1) and subsection (5) of

30  section 61.13, Florida Statutes, are reenacted to read:

31  

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 1         61.13  Custody and support of children; visitation

 2  rights; power of court in making orders.--

 3         (1)(a)  In a proceeding for dissolution of marriage,

 4  the court may at any time order either or both parents who owe

 5  a duty of support to a child to pay support in accordance with

 6  the guidelines in s. 61.30.  The court initially entering an

 7  order requiring one or both parents to make child support

 8  payments shall have continuing jurisdiction after the entry of

 9  the initial order to modify the amount and terms and

10  conditions of the child support payments when the modification

11  is found necessary by the court in the best interests of the

12  child, when the child reaches majority, or when there is a

13  substantial change in the circumstances of the parties.  The

14  court initially entering a child support order shall also have

15  continuing jurisdiction to require the obligee to report to

16  the court on terms prescribed by the court regarding the

17  disposition of the child support payments.

18         (5)  The court may make specific orders for the care

19  and custody of the minor child as from the circumstances of

20  the parties and the nature of the case is equitable and

21  provide for child support in accordance with the guidelines in

22  s. 61.30.  An award of shared parental responsibility of a

23  minor child does not preclude the court from entering an order

24  for child support of the child.

25         Section 7.  For the purpose of incorporating the

26  amendment to section 61.30, Florida Statutes, in references

27  thereto, subsection (1) of section 61.14, Florida Statutes, is

28  reenacted to read:

29         61.14  Enforcement and modification of support,

30  maintenance, or alimony agreements or orders.--

31  

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 1         (1)(a)  When the parties enter into an agreement for

 2  payments for, or instead of, support, maintenance, or alimony,

 3  whether in connection with a proceeding for dissolution or

 4  separate maintenance or with any voluntary property

 5  settlement, or when a party is required by court order to make

 6  any payments, and the circumstances or the financial ability

 7  of either party changes or the child who is a beneficiary of

 8  an agreement or court order as described herein reaches

 9  majority after the execution of the agreement or the rendition

10  of the order, either party may apply to the circuit court of

11  the circuit in which the parties, or either of them, resided

12  at the date of the execution of the agreement or reside at the

13  date of the application, or in which the agreement was

14  executed or in which the order was rendered, for an order

15  decreasing or increasing the amount of support, maintenance,

16  or alimony, and the court has jurisdiction to make orders as

17  equity requires, with due regard to the changed circumstances

18  or the financial ability of the parties or the child,

19  decreasing, increasing, or confirming the amount of separate

20  support, maintenance, or alimony provided for in the agreement

21  or order.  A finding that medical insurance is reasonably

22  available or the child support guidelines in s. 61.30 may

23  constitute changed circumstances. Except as otherwise provided

24  in s. 61.30(11)(c), the court may modify an order of support,

25  maintenance, or alimony by increasing or decreasing the

26  support, maintenance, or alimony retroactively to the date of

27  the filing of the action or supplemental action for

28  modification as equity requires, giving due regard to the

29  changed circumstances or the financial ability of the parties

30  or the child.

31  

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 1         (b)  For each support order reviewed by the department

 2  as required by s. 409.2564(12), if the amount of the child

 3  support award under the order differs by at least 10 percent

 4  but not less than $25 from the amount that would be awarded

 5  under s. 61.30, the department shall seek to have the order

 6  modified and any modification shall be made without a

 7  requirement for proof or showing of a change in circumstances.

 8         (c)  The department shall have authority to adopt rules

 9  to implement this section.

10         Section 8.  For the purpose of incorporating the

11  amendment to section 61.30, Florida Statutes, in references

12  thereto, paragraph (d) of subsection (1), paragraph (c) of

13  subsection (2), paragraph (f) of subsection (4), paragraph (a)

14  of subsection (5), and paragraph (e) of subsection (7) of

15  section 409.2563, Florida Statutes, are reenacted to read:

16         409.2563  Administrative establishment of child support

17  obligations.--

18         (1)  DEFINITIONS.--As used in this section, the term:

19         (d)  "Financial affidavit" means an affidavit or

20  written declaration as provided by s. 92.525(2) which shows an

21  individual's income, allowable deductions, net income, and

22  other information needed to calculate the child support

23  guideline amount under s. 61.30.

24         (2)  PURPOSE AND SCOPE.--

25         (c)  If there is no support order for a child in a

26  Title IV-D case whose paternity has been established or is

27  presumed by law, the department may establish the noncustodial

28  parent's child support obligation pursuant to this section, s.

29  61.30, and other relevant provisions of state law. The

30  noncustodial parent's obligation determined by the department

31  may include any obligation to pay retroactive support and any

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 1  obligation to provide for health care for a child, whether

 2  through insurance coverage, reimbursement of expenses, or

 3  both. The department may proceed on behalf of:

 4         1.  An applicant or recipient of public assistance, as

 5  provided by ss. 409.2561 and 409.2567;

 6         2.  A former recipient of public assistance, as

 7  provided by s. 409.2569;

 8         3.  An individual who has applied for services as

 9  provided by s. 409.2567;

10         4.  Itself or the child, as provided by s. 409.2561; or

11         5.  A state or local government of another state, as

12  provided by chapter 88.

13         (4)  NOTICE OF PROCEEDING TO ESTABLISH ADMINISTRATIVE

14  SUPPORT ORDER.--To commence a proceeding under this section,

15  the department shall provide to the custodial parent and serve

16  the noncustodial parent with a notice of proceeding to

17  establish administrative support order and a blank financial

18  affidavit form. The notice must state:

19         (f)  That the department will calculate support

20  obligations based on the child support guidelines in s. 61.30

21  and using all available information, as provided by paragraph

22  (5)(a), and will incorporate such obligations into a proposed

23  administrative support order;

24         (5)  PROPOSED ADMINISTRATIVE SUPPORT ORDER.--

25         (a)  After serving notice upon the noncustodial parent

26  in accordance with subsection (4), the department shall

27  calculate the noncustodial parent's child support obligation

28  under the child support guidelines as provided by s. 61.30,

29  based on any timely financial affidavits received and other

30  information available to the department. If either parent

31  fails to comply with the requirement to furnish a financial

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 1  affidavit, the department may proceed on the basis of

 2  information available from any source, if such information is

 3  sufficiently reliable and detailed to allow calculation of

 4  guideline amounts under s. 61.30. If the custodial parent

 5  receives public assistance and fails to submit a financial

 6  affidavit, the department may submit a financial affidavit for

 7  the custodial parent pursuant to s. 61.30(15). If there is a

 8  lack of sufficient reliable information concerning a parent's

 9  actual earnings for a current or past period, it shall be

10  presumed for the purpose of establishing a support obligation

11  that the parent had an earning capacity equal to the federal

12  minimum wage during the applicable period.

13         (7)  ADMINISTRATIVE SUPPORT ORDER.--

14         (e)  An administrative support order must comply with

15  s. 61.30. The department shall develop a standard form or

16  forms for administrative support orders. An administrative

17  support order must provide and state findings, if applicable,

18  concerning:

19         1.  The full name and date of birth of the child or

20  children;

21         2.  The name of the noncustodial parent and the

22  custodial parent or caretaker relative;

23         3.  The noncustodial parent's duty and ability to

24  provide support;

25         4.  The amount of the noncustodial parent's monthly

26  support obligation;

27         5.  Any obligation to pay retroactive support;

28         6.  The noncustodial parent's obligation to provide for

29  the health care needs of each child, whether through insurance

30  coverage, contribution towards the cost of insurance coverage,

31  

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 1  payment or reimbursement of health care expenses for the

 2  child, or any combination thereof;

 3         7.  The beginning date of any required monthly payments

 4  and health care coverage;

 5         8.  That all support payments ordered must be paid to

 6  the Florida State Disbursement Unit as provided by s. 61.1824;

 7         9.  That the parents, or caretaker relative if

 8  applicable, must file with the department when the

 9  administrative support order is rendered, if they have not

10  already done so, and update as appropriate the information

11  required pursuant to paragraph (13)(b);

12         10.  That both parents, or parent and caretaker

13  relative if applicable, are required to promptly notify the

14  department of any change in their mailing addresses pursuant

15  to paragraph (13)(c); and

16         11.  That if the noncustodial parent receives

17  unemployment compensation benefits, the payor shall withhold,

18  and transmit to the department, 40 percent of the benefits for

19  payment of support, not to exceed the amount owed.

20  

21  An income deduction order as provided by s. 61.1301 must be

22  incorporated into the administrative support order or, if not

23  incorporated into the administrative support order, the

24  department or the Division of Administrative Hearings shall

25  render a separate income deduction order.

26         Section 9.  For the purpose of incorporating the

27  amendment to section 61.30, Florida Statutes, in references

28  thereto, subsection (12) of section 409.2564, Florida

29  Statutes, is reenacted to read:

30         409.2564  Actions for support.--

31  

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 1         (12)  The Title IV-D agency shall review child support

 2  orders in IV-D cases at least every 3 years upon request by

 3  either party, or the agency in cases where there is an

 4  assignment of support to the state under s. 414.095(8), and

 5  may seek adjustment of the order if appropriate under the

 6  guidelines established in s. 61.30. Not less than once every 3

 7  years the IV-D agency shall provide notice to the parties

 8  subject to the order informing them of their right to request

 9  a review and, if appropriate, an adjustment of the child

10  support order. Said notice requirement may be met by including

11  appropriate language in the initial support order or any

12  subsequent orders.

13         Section 10.  For the purpose of incorporating the

14  amendment to section 61.30, Florida Statutes, in references

15  thereto, subsection (1) of section 742.031, Florida Statutes,

16  is reenacted to read:

17         742.031  Hearings; court orders for support, hospital

18  expenses, and attorney's fee.--

19         (1)  Hearings for the purpose of establishing or

20  refuting the allegations of the complaint and answer shall be

21  held in the chambers and may be restricted to persons, in

22  addition to the parties involved and their counsel, as the

23  judge in his or her discretion may direct.  The court shall

24  determine the issues of paternity of the child and the ability

25  of the parents to support the child.  Each party's social

26  security number shall be recorded in the file containing the

27  adjudication of paternity. If the court finds that the alleged

28  father is the father of the child, it shall so order.  If

29  appropriate, the court shall order the father to pay the

30  complainant, her guardian, or any other person assuming

31  responsibility for the child moneys sufficient to pay

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 1  reasonable attorney's fees, hospital or medical expenses, cost

 2  of confinement, and any other expenses incident to the birth

 3  of the child and to pay all costs of the proceeding.  Bills

 4  for pregnancy, childbirth, and scientific testing are

 5  admissible as evidence without requiring third-party

 6  foundation testimony, and shall constitute prima facie

 7  evidence of amounts incurred for such services or for testing

 8  on behalf of the child.  The court shall order either or both

 9  parents owing a duty of support to the child to pay support

10  pursuant to s. 61.30.  The court shall issue, upon motion by a

11  party, a temporary order requiring the provision of child

12  support pursuant to s. 61.30 pending an administrative or

13  judicial determination of parentage, if there is clear and

14  convincing evidence of paternity on the basis of genetic tests

15  or other evidence. The court may also make a determination as

16  to the parental responsibility and residential care and

17  custody of the minor children in accordance with chapter 61.

18         Section 11.  This act shall take effect July 1, 2004.

19  

20          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
21                    CS/CS for Senate Bill 1060

22                                 

23  -    Clarifies reference to the federal tax credit for child
         care expenses for the purpose of distinguishing it from
24       the federal tax credit for each child.

25  -    Adds that the date of the initial entry of a temporary
         support order may serve as a date to which a modified
26       support order may be made retroactive.

27  

28  

29  

30  

31  

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