Sunday, August 28, 2005

Case Law Development: Child Support when Child is Incarcerated

Rodney P.  v. Stacy B., 2005 Ky. LEXIS 245 (August 25, 2005)

This case of first impression, the Kentucky Supreme Court examines child support obligations for an incarcerated child.  Here, Mom had custody of two children.  She moved to modify Dad’s child support payments based on Dad’s increased income.  Dad responded that, because the oldest child was in state custody for status and delinquency offenses, child support should be calculated based on Mom's custody of one child rather than two.  Mom did not provide any evidence that she was providing support for the incarcerated child or had expenses related to her custody of him. Dad argued that, because the state could sue him to collect the costs of support for the son, if he were also ordered to pay Mom support for the son, he would  end up paying twice. 

The court reviews the few cases across the United States involving incarcerated children and child support, noting that, while most held that parents had a continuing duty of child support for an incarcerated child, those cases were ones in which the parent was seeking to terminate the support obligation entirely under an emancipation theory.  Here, Dad was not seeking to terminate his support obligation, but rather to have support calculated as if he were the custodial parent of the incarcerated son.  The court agreed with this approach.

Text of opinion at http://www.kycourts.net/Supreme/SC_Opinions.shtm

http://lawprofessors.typepad.com/family_law/2005/08/case_law_develo_5.html

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