Under Minn. Stat. sec. 518A.36, the number of overnights or overnight equivalents that a parent spends with a child pursuant to a court order may be considered in determining the parent’s percentage of parenting time for the parenting expense adjustment. Overnight equivalents are significant time periods on separate days where the child is in the parent’s physical custody and under the direct care of the parent but does not stay overnight. The court may consider the age of the child in determining whether a child is with a parent for a significant period of time.
Minn. Stat. sec 518A.33 provides for a deduction from a parent’s gross income for court-ordered child support for a nonjoint child or a deduction of 75 percent of the guideline amount for support of a nonjoint child if there is no court order.
Illinois
Under 750 ILCS 5/505 (a) (3.2), if a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of the parent’s potential income and probable earnings level. This determination is based on the parent’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community. If there is insufficient work history to determine employment potential and probable earnings level, there shall be a rebuttable presumption that the parent’s potential income is 75 percent of the most recent federal poverty guidelines for a family of one person.
Under 750 ILCS 5/505 (a) (3.8), the shared physical care provision is based on overnights with no mention of equivalent care.
Under 750 ILCS 5/505 (a) (3) (F), the determination of net income includes a multi-family adjustment. If a parent is also legally responsible for support of a child not shared with the other parent, the court shall deduct from the parent’s net income the amount of child support actually paid by the parent pursuant to a support order, unless the court makes a finding that it would cause economic hardship to the child. If there is no court-ordered support, upon the request or application of a parent actually supporting a presumed, acknowledged, or adjudicated child living in or outside of that parent’s household, the court shall deduct from the parent’s net income the amount of financial support actually paid by the parent for the child or 75% of the support the parent should pay under the child support guidelines (before this adjustment), whichever is less, unless the court makes a finding that it would cause economic hardship to the child.
Effect on Small Businesses
The proposed rules will not affect small businesses as defined in s. 227.114 (1), Stats. Analysis Used to Determine Effect on Small Businesses
The proposed rules apply to temporary and final orders for child support of a marital or non-marital child in any action affecting the family under ch. 767, Stats., including stipulated child support settlements under s. 767.34, Stats. Agency Contact
Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Elaine Pridgen, Department of Children and Families, 201 W. Washington Ave, P.O. Box 8916, Madison, WI, 53708-8916 or dcfpublichearing@wisconsin.gov. The comment deadline is May 23, 2023. RULE TEXT
SECTION 1. Chapter DCF 150 (preface) is amended to read: Section 49.22 (9), Stats., requires the department to adopt and publish a standard to be used by courts in determining child support obligations. The standard is to be based on a percentage of the gross income and assets of either or both parents. The percentage standard percentages established in this chapter is are based on an analysis of national studies, including a study done by Jacques Van der Gaag as part of the Child Support Project of the Institute for Research on Poverty, University of Wisconsin, Madison, entitled “On Measuring the Cost of Children," which disclose the amount of income and disposable assets that parents use to raise their children. The child support standard is based on the principle that a child’s standard of living should, to the degree possible, not be adversely affected because his or her the child’s parents are not living together. It determines the percentage of a parent’s income and potential income from assets that parents should contribute toward the support of children if the family does not remain together. The child support standard determines the minimum amount each parent is expected to contribute to the support of their children. It expects that the custodial parent shares his or her income directly with their children. It also presumes that the basic needs of the children are being met. This latter presumption may be rebutted by clear and convincing evidence that the needs of the children are not being met.
The rules also prescribe procedures for determining equitable child support obligations under a variety of financial and family circumstances.
SECTION 2. DCF 150.02 (10) is repealed.
SECTION 3. DCF 150.02 (14) is repealed and recreated to read:
DCF 150.02 (14) “Income imputed based on earning capacity” means the amount the court determines under s. DCF 150.03 (3) if the parent has no other income or the difference between the amount the court determines under s. DCF 150.03 (3) and the parent’s gross income or income modified for business expenses if the parent has actual income. SECTION 4. DCF 150.02 (15m) is created to read:
DCF 150.02 (15m) “Income imputed when no information is known” means the amount that the court determines under s. DCF 150.03 (3m). SECTION 5. DCF 150.02 (17), (19), and (21) are amended to read:
DCF 150.02 (17) “Intact family” means a family in which the child or children and the payer reside in the same household and the payer shares his or her the payer’s income directly with the child or children and has a legal obligation to support the child or children.
(19) “Low-income payer” means a payer for whom the court uses the monthly support amount provided in the schedule in Appendix C based on the court’s determination that the payer’s total economic circumstances limit his or her the payer’s ability to pay support at the level provided under s. DCF 150.035 and the payer’s income available for child support is at a level set forth in the schedule in Appendix C. (21) “Monthly income available for child support” means the monthly income at which the child support obligation is determined, which is calculated by adding the parent’s annual gross income or, if applicable, the parent’s annual income modified for business expenses; the parent’s annual income imputed based on earning capacity; the parent’s annual income imputed when no information is known; and the parent’s annual income imputed from assets, and dividing that total by 12.
SECTION 6. DCF 150.03 (1) is amended to read:
DCF 150.03 (1) Determining income available for child support. The court shall determine a parent’s monthly income available for child support by adding together the parent’s annual gross income or, if applicable, the parent’s annual income modified for business expenses; the parent’s annual income imputed based on earning capacity; the parent’s annual income imputed when no information is known; and the parent’s annual income imputed from assets, and dividing that total by 12. This may be done by completing the worksheet in Appendix B, although use of the worksheet for this purpose is not required.
SECTION 7. DCF 150.03 (3) is repealed and recreated to read:
DCF 150.03 (3) Income imputed based on earning capacity. If a parent is voluntarily unemployed or underemployed without good cause, the court may impute income to the parent based on the parent’s earning capacity. A parent’s incarceration may not be treated as voluntary unemployment for purposes of establishing or modifying a child support order. In determining a parent’s earning capacity, the court may consider the following factors:
(a) The parent’s recent work experience.
(b) The parent’s earnings during previous periods of employment.
(c) The parent’s job skills and training.
(d) The parent’s education.
(e) A vocational evaluation of the parent, if available.
(f) The parent’s diligence in seeking appropriate employment.
(g) Employment barriers the parent faces, such as homelessness, lack of a driver’s license, alcohol or other drug dependence, or immigration status.
(h) The parent’s criminal history and history of incarceration.
(i) If the parent is unemployed, whether the unemployment is due to the parent’s job-related misconduct.
(j) If the parent is the caretaker of a child common to the parties, the relationship between the parent’s earning capacity and the child care costs that would be incurred if the parent obtained paid employment.
(k) If the parent is the caretaker of a child common to the parties who has unusual emotional or physical needs, whether the child requires that parent’s presence in the home.
(L) The parent’s participation in reasonable career or occupational training to establish basic skills or enhance earning capacity.
(m) The parent’s age.
(n) The parent’s assets.
(o) The location of the parent’s residence.
(p) The parent’s receipt of Wisconsin Works cash assistance under s. 49.148, Stats. (q) The parent’s receipt of Supplemental Security Income under 42 USC 1381 to 1383f. (r) Any other factor that the court determines is relevant.
SECTION 8. DCF 150.03 (3m) is created to read:
DCF 150.03 (3m) Income imputed when no information is known. If a parent’s income is unknown and evidence is presented that due diligence has been exercised to ascertain information on the parent’s actual income or ability to earn and that information is unknown, the court may impute the income to the parent that an individual would earn by working 10 to 35 hours per week for the higher of the federal minimum hourly wage under 29 USC 206 (a) (1) or the state minimum hourly wage under s. 104.035 (1) (a), Stats. SECTION 9. DCF 150.035 (1) (a) is repealed and recreated to read:
DCF 150.035 (1) (a) Applicability. The shared-placement formula may be applied when all of the following conditions are met:
1. Both parents have court-ordered periods of placement of at least 25 percent or 92 days per year based on the number of overnights or equivalent care under par. (ar) provided by each parent.
2. Each parent is ordered by the court to assume the child’s basic support costs in proportion to the time that the parent has placement of the child.
SECTION 10. DCF 150.035 (1) (ag), (ar), and (b) (title) are created to read:
DCF 150.035 (1) (ag) Periods of placement and total number of overnights. 1. A parent’s period of placement shall be determined by calculating the number of overnights or equivalent care under par. (ar) ordered to be provided by the parent and dividing that number by the total number of overnights in a year.
2. When a parent is providing court-ordered equivalent care of the child under par. (ar), the total number of overnights in a year may exceed 365.
3. The combined periods of court-ordered placement for both parents shall equal the total number of overnights.
(ar) Equivalent care. 1. ‘General.’ A parent’s court-ordered period of placement may include periods when the parent is caring for the child that is not overnight, but is determined by the court to require the parent to assume basic support costs that are substantially equivalent to what the parent would spend to care for the child overnight, subject to subd. 2.
Note: For example, a parent working 3rd shift who is generally unable to provide overnight care may be eligible to receive credit for equivalent care provided during the day.
2. ‘No duplicate credit.’ A parent may not receive credit for equivalent care of the child during a period that is within 24 hours of a period for which the parent receives credit for overnight care of the child, unless the other parent is providing overnight care the night before and night after the period when the equivalent care is provided.
Note: The exception clarifies that Parent A may be eligible for equivalent care credit for care provided on Monday morning after providing overnight care on Saturday night if Parent B is providing overnight care on Sunday and Monday nights.
3. ‘Calculation of equivalent care.’ A block of time during which the parent cares for the child for at least 6 hours may be considered the equivalent of a half-day if the parent provides a meal during this period. Two half-day blocks may be considered equivalent to what the parent would spend to care for the child overnight.
(b) (title) Determination.
SECTION 11. DCF 150.035 (1) (Note) is amended to read:
Note: The following example shows how to calculate the child support obligations of shared-placement parents.
Number of children: Two
Parent A: $2,000 monthly income available for child support
Court-ordered placement of the child for 219 days a year or 60%.
