Illinois Family Law Advocate : Peoria Family Lawyer & Attorney : Shahzad R. Khan Law Firm : Divorce, Child Support : Chicago, Bloomington, Normal & Sangamon

[I do not know what this man was thinking.  From what he did, I can tell you that he has scrambled eggs for brains.  Judge McJoynt is one of the nicest, most reasonable and fair judges you will ever meet. I cannot understand what possesses a person to pull off a stunt like this.  People cease to amaze me.]

March 24, 2010
SUN-TIMES MEDIA WIRE

(WHEATON) A 40-year-old west suburban man was arrested Wednesday morning after he allegedly threw a raw egg at a judge during a child support hearing at the DuPage County Courthouse.

Agim Demiri of Naperville was in court for a child support case when he got upset and threw a raw egg at the presiding judge, according to a release from the DuPage County Sheriff's office. Demiri was immediately taken into custody by a sheriff's deputy in the courtroom.

The judge was not injured, sheriff's office spokeswoman Dawn Domrose said.

He was charged with one count of direct criminal contempt and remanded immediately to the DuPage County Jail for seven days, the release said. He is due back in court at 1:30 p.m. Wednesday.

The incident is still under investigation and more charges may be filed.

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(This is part one of a two part series on problems non-custodial parents face when they do not read over and understand their obligations pursuant to a child support order.)

In Illinois the preferred and the default method of paying child support is through the State Disbursement Unit by an income withholding order  The State Disbursement Unit is essentially a clearing house that accepts child support, records it ,and forwards it on to the custodial parent. Its actually a great way to pay support because it protects the non-custodial by creating a record of their payments.  If child support is being paid through income withholding, then there should be no question of whether support was paid or not paid.  

Having said that obligors, those parents obligated to pay child support, or non-custodial parents often find themselves in trouble when they fail to read child support orders over carefully.  Often times obligors or non-custodial parents find themselves behind in child support simply because they didn't read the order over properly or they're attorney didn't advise them properly.  

When a child support order is entered with an income withholding order child support does not automatically start flowing from your paycheck.  Unfortunately, there is a period of time from when the support order is entered and the income withholding notice is sent, received and placed in the payroll system at your employers payroll or human resources office. During this lag time, you are responsible for paying child support on your own when it is due.  If you do not see it coming out of your paycheck, you must pay for it on your own. 

That means you must write a check or obtain a money order for the amount you are to pay and pay it according to the frequency you are required to pay it.  So, for example if you are ordered to pay child support in the amount of $100.00 biweekly, then each time you are paid biweekly by your employer, you should drop a check or money order in the mail to the State Disbursement Unit, in the amount required until you see support being withheld and deducted from your paycheck.  

This is a common scenario that gets many obligors or non-custodial parents in trouble.  Once you fall behind in child support, you start incurring penalties and interest.  These penalties and interest rack up rather quickly.  

The worse thing you can do during this lag time, besides not doing anything, is paying child support to the custodial parent with cash payments.  No matter how good your terms are with the custodial parent, child support should never be paid with cash.  Cash, unlike a check or money order, does not leave any evidence behind to show that it was paid.  So, if ever a dispute arises between you and the custodial parent regarding your payment of child support, cash will not save you. 

Important things to remember: 

• Read all court orders over for your own understanding. If you do not understand something have your attorney explain it to you.  If you do not have an attorney, find an attorney that conducts a free consultation who may be able to explain and answer your questions during that consultation. 
• There is a lag time between the time the order for support is entered and support starts flowing from your paycheck.  Make sure you pay support during that lag time if support is due.  
• Failure to pay support during that lag time will result in penalties and interest that will add up and can result in findings of contempt, fines, imprisonment and depending on the amount the loss of your driver's license and passport. 
• Never pay support with cash to the custodial parent.  It will burn you many years down the road.  
• If you are going to pay support before support flows from your paycheck, pay it with a check or money order to the State Disbursement Unit. 

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True story.  Father, non-custodial parent of two children works as an employee for the City of Chicago. He works hard for his money and he works hard to provide a better life for his children. He pays support on a regular basis and has never, ever fallen behind.

He's a good father, never late for visitation and always looking forward to the next opportunity to see his kids. But each time he sees his children he notices that their condition does not ever change. They wear the same old clothes, the same old tattered shoes, the same back pack year in and year out, the same things over and over again.  Their condition simply does not change.  Even though he pays support, he still brings them new clothes, toys and things of use for school and sport. 

The father then describes the condition of the children's mother, who happens to not work and who happens to collect child support from two other men.  She has nicely manicured nails, a new hair style, a new Coach purse and is well dressed and well groomed. 

Make whatever assumptions you may want.  In my line of business I have seen custodial parents take child support checks and payments and blow them all away at the mall and even in Northwest Indiana at Harrah's or at the riverboat in Joliet.  Illinois does not have any child support accountability laws.  It's unfortunate.

However, simply put there aren't many states to begin with that require a custodial parent to account for the child support that they receive from a non-custodial parent.  To my understanding there are a total of eleven states in the United States that have some form of child support accountability law. Two of those states border our great state and they are Indiana and Missouri. The others include: Colorado, Delaware, Florida, Kansas, Louisiana, Nebraska, Oklahoma, Oregon, Washington and Alabama.  

The Indiana child support accountability law can be found here and the Missouri child support accountability law can be found here. 

You hear of these abuses once in a while.  Its unfortunate that these abuses exist.  But, I can say that the vast majority of custodial parents use the child support that they are entrusted with for the proper purposes of providing for the child's day to day needs, including food, clothing, supplies for school, toys and other necessities of life. 

It's my opinion that if laws exist with stringent penalties for the non-payment of support, then laws should exist for the abusive use of support.  However, the problem with accountability laws is how do you prove that the custodial parent has not used the support in a proper manner.  Videotape of a custodial parent cashing a check at Harrah's is not always available.  

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I often get a hypothetical question from friends and acquittances at dinner or at other occasions about how much of their income would go for child support if they were to divorce or end their relationships with their significant other.

Illinois, unlike many other states, looks at the income of the non-custodial parent to determine child support. Our neighboring state of Indiana looks at the income of both parents, the amount of time the parents spend with the children, and other factors to determine child support. But, in Illinois child support is determined by very simple statutory guidelines.

Section 505 is the statute section that governs the issue of child support in Illinois. The specific statutory guidelines can be found in 750 ILCS 5/505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act, which is stated as follows:

(1) The Court shall determine the minimum amount of support by using the following guidelines:
              Number of Children                                    Percentage of Supporting Party’s
                                                                                                          Net Income
                           1                                                                                 20%
                           2                                                                                 28%
                           3                                                                                 32%
                           4                                                                                 40%
                           5                                                                                 50%

Section 505 basically provides that the court can deviate from the guidelines if the court finds the application of the guidelines to a particular case to be inappropriate based upon the best interests of the child and based on other enumerated factors. However, there are factors not listed within the statute section that may still be considered by the court to allow for a deviation from guidelines. Section 505(a)(2) can be found here.

So, essentially, the court can deviate from the above referenced guidelines only if you have an exceedingly good reason to deviate from those guidelines. While litigating many child support cases, I have determined that it is very rare to get a judge to agree to a deviation from guidelines. I am not saying it is impossible to get a deviation. What I am saying is that it is very difficult and you have to have a very good reason and very good evidence to support your theory.

Once you know what your percentage is going to be, whether by statutory guidelines or via deviation, the next step is to figure out your net income. In Illinois child support is based upon the net income of the obligated or non-custodial parent, not gross income. Pursuant to Section 505: net income is defined as the total of all income from all sources, minus the following deductions:

Important Points to Remember:

• Child Support in Illinois is based on statutory guidelines. This means that the amount of support you pay is dependent on the number of children you have with the particular mother in your particular case.
• The courts will more often than not follow the statutory guidelines.
• Deviations are available, but difficult to achieve. You must have a compelling reason to deviate from the statutory guidelines and your evidence in support must be as compelling.
• Child support in Illinois is based upon the net income of the obligated or non-custodial parent. In Illinois net income is specifically defined in the statute.
• Other states, other than Illinois may use gross income, incomes of both parties, time spent with the children and other factors to determine child support. Please consult an attorney in your state to know your specific requirements.

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Recently, I had the opportunity to observe a situation that many of my clients have gone through with the births of their children. I went to celebrate the birth of a child with a friend and his girl friend. While I was present, a hospital worker came into my friends hospital room and asked whether he was married to the woman who gave birth to his child. In this case, he was not married to the woman and as such was provided a form known as a Voluntary Acknowledgment of Paternity.

A Voluntary Acknowledgment of Paternity (VAP) is a form provided by the state that essentially creates a legal relationship between father and child when signed.  The significance of signing this document is known as paternity by consent.  If this document is signed then the father waives his right to a DNA test and it also creates an obligation for child support. In addition in Illinois, signing a VAP awards sole custody by default to the mother of the child.

Essentially this document bypasses the court system on the issues of paternity and custody. If the father wants visitation with the child, then he has to petition the court to establish that right.  If the father wants custody, he has to petition the court to modify custody.  Instead of starting out disadvantaged, why not have everything established in court. If you are going to be there for one issue, why not be there for all the issues in your case and start out on an even playing field with the mother of the child. 

In the United States alone, approximately 40% of all births are to unmarried parents. That percentage continues to grow each year. I do not know whether there are any figures on how many VAPs are signed each year to determine paternity administratively. But it happens quite often and quite often the new father has second thoughts.

DO NOT SIGN IT, unless you are absolutely sure you are the father!

Do Not be pressured into a situation that you may later regret. Do Not let your emotions get in the way. If you are not sure, do not sign it. I cannot stress that anymore. Its that simple.

If you have signed it and the emotions of the birth have passed and you have come back to your senses and you realize that you might not be the father of the child, you do have a sixty day grace period, after signing the VAP, to rescind your VAP in Illinois. After sixty days have passed, you are on the hook for the next eighteen years plus the possibility of college.  Think about that for a second!

Challenging a VAP after the expiration of the sixty day period is possible but very difficult.  A VAP may be challenged on the grounds of fraud, duress or material mistake of fact.  The burden of proving this is on the party challenging the VAP.  

In the cases that I have litigated, the Courts have focused in on whether the act of the father signing the VAP was voluntary and whether the father had any doubts about his paternity at the time of signing the VAP.  If he still signed the VAP with those doubts in mind, the court was not inclined to vacate the VAP.  This is because even though he harbored doubts about his paternity, he still committed a voluntary act by signing the document declaring himself to be the father, regardless of whether there were facts that supported a conclusion that a fraud had been committed against the particular father.

Paternity fraud is a serious issue and will be discussed in a later submission.  A recent New York Times Magazine article titled: Who Knew I was Not the Father, by Ruth Padawer, is a great place to get acquainted with this topic. 

In getting back to our topic, of whether to sign the VAP, DO NOT succumb to pressure, threats and emotions. Do Not give in to anyone. BECAUSE: YOU HAVE RIGHTS! You have the right to a DNA test. You also have the right to have a judge resolve all together the issues of paternity, custody, visitation and child support. The best thing to do in this situation is to consult an attorney to discuss your rights so that you can start out on an even playing field.

Important things to remember:

• Signing a VAP is a voluntary act. Do not sign it, therefore do not commit a voluntary act unless you are absolutely sure you are the father of the child.  In an age where DNA tests are now available over the counter, it's best to side with caution and determine with certainty whether the child is yours.
• If you are in Illinois it is best to have a judge oversee your case and resolve the issues of paternity, custody, visitation and child support rather than having some of the issues resolved through one administrative act.  
• Signing a VAP creates a legal relationship by consent of the parties.  
• Signing a VAP waives your right to a DNA test and puts you in a disadvantaged position on the issue of custody.  
• Preferably before the birth of the child, consult a family law attorney to discuss your rights, obligations and options. If the child is already here, consult a family law attorney as soon as possible. 

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A common misconception among former clients and many litigants is that payment of child support guarantees visitation. Child support has nothing to do with visitation and vice versa in Illinois. If an order provides that you are to pay child support based upon statutory guidelines, you must do so. If a separate order provides that you also have certain detailed and specific visitation rights, then you should exercise those rights.

The custodial parent, namely your ex-spouse, ex-girlfriend, ex-boyfriend or ex-significant other cannot deny you the right to have visitation with your child or children, if you do not pay child support. Not paying child support pursuant to court order is a violation of that court order, which can result in a finding of contempt and further result in fines, penalties and imprisonment. The same goes for a violation of a visitation order. The person who violates an order for visitation can have a finding of contempt issued against them and therefore be subject to similar fines, penalties and also eventually imprisonment.

You, as the custodial parent, may hate the fact that you are not receiving child support as ordered. However, you cannot take the law into your own hands and arbitrarily modify the order so that the non-custodial parent has no visitation. The only person entitled to curtail visitation rights is the circuit court judge assigned to your case. That's it. You as a litigant do not have that right.

Important points to remember:

• If you are under an order to pay child support - you as the non-custodial parent must continue to pay support per the order until that order is modified or terminated. 
• If an order for visitation exists - the custodial parent must timely make sure the children are available for visitation at the designated transition location.
• If an order for visitation exists -  the non-custodial parent must timely appear for visitation at the designated transition location and must return the children on a timely manner at the same or specified transition location. 
• You are NOT the judge - You are a litigant.  You do not have the ability to terminate or modify orders. So you cannot terminate or modify your child support obligation arbitrarily.  Similarly, you cannot terminate, cut short or modify a parents visitation just because he or she has not paid child support.
• Rules to Show Cause - There is proper procedure to rectify the violation of any court order, including visitation and child support orders.  Civil contempt, penalties, fines and imprisonment may apply if you are successful in proving your case.  However, in Illinois a violation of a visitation order can also result in criminal prosecution.

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Section 505 of the Illinois Marriage and Dissolution of Marriage Act imposes an obligation for support of a child on either one parent or both parents. Either one or both parents can be required to pay the necessary and reasonable expenses of the minor child including reasonable and necessary expenses pertaining to the child’s physical, mental and emotional health. This obligation to support the child continues until the child emancipates under Illinois law.

The obligation of support applies to all parents including parents who are self employed, employed by an employer, underemployed or unemployed. It even applies to those who are disabled and therefore unable to earn a living. 

Is this fair? The simple answer is yes. 

Why? Because the needs of the child need to be satisfied. The only people who should be responsible for making sure those needs are met are the parents of the child or children.

So how does a parent who is disabled pay support? If the disabled, non-custodial parent has applied for social security disability benefits, that parent will likely receive a lump sum payment that is retroactive to their initial filing with the Social Security Administration. It is also possible that the custodial parent may receive their own lump sum payment for the benefit of the child. This lump sum payment would represent the support that the non-custodial parent would have paid over the course of months since the non-custodial parent filed his claim with the Social Security Administration.

In addition, the lump sum payment made to the custodial parent would be used to satisfy any child support arrearages that may exist. However, if the arrearages are not completely satisfied by the lump sum payment paid to the custodial parent, then the lump sum paid to the disabled or non-custodial parent can be used to satisfy this debt.

In addition, the non-custodial parent is not relieved of his obligation to pay future support just because he or she is on social security disability. The non-custodial parent will continue to receive his monthly benefit as will each of his dependents through a dependent allotment that will be paid directly to the custodial parent and which will satisfy his or her obligation for child support. 

The rationale behind requiring a disabled person on Social Security Disability to pay child support is that the benefits that the disabled parent receives are a derivative of their employment over the course of years. Therefore the amount of benefits they receive are accumulated from income that they earned over the years of their work history. As such, this benefit that they are receiving is considered income for purposes of child support. 

The process of receiving Social Security Disability benefits is a long and arduous process. It's not as simple as I have written it above. Lump sums are not handed out freely. The process can take from several months to a year or more. Sometimes people get rejected and have to refile. Most clients who I have represented in family law matters involving child support have other attorneys representing them before the Social Security Administration. It's always advisable to have your family attorney work with your disability attorney so that information is made available to the family law attorney and to the family law court. This helps to prevents Rules to Show Cause, contempt findings and helps to keep the litigant out of jail.

Important points to remember:

• Social Security Disability benefits are subject to a child support obligation because they are derived from your income over the course of your work history. 
• If you are disabled consult a disability attorney to determine your rights;
• If you have on-going family law issues pertaining to child support, consult a family law attorney to determine your rights and obligations under Illinois law; 
• Execute consent forms to allow your disability attorney and your family law attorney to talk to one another and coordinate a proper strategy so that you do not get in trouble in court;
• Results vary. The process of obtaining social security benefits can take from several months to a year or more. Sometimes people have to reapply for benefits. 
• If awarded a lump sum, DO NOT spend or hide your lump sum payment to avoid paying down back child support arrears. This will get you in a lot of trouble. You may found yourself in a jail cell. 

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