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In re Proposed Amendments To Administrative Order No. 10

Supreme Court of Arkansas

December 12, 2019

IN RE PROPOSED AMENDMENTS TO ADMINISTRATIVE ORDER NO. 10

          PER CURIAM

         The Supreme Court Child Support Committee has recommended the following rewrite of Administrative Order No. 10. The revised Administrative Order No. 10 is set out in detail below. We express our gratitude to the members of the Committee for their work. These proposals are being published for comment, and the comment period shall end January 31, 2020.

         Comments should be submitted in writing to: Clerk of the Arkansas Supreme Court, Attention: Child Support Committee, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.

         Administrative Order No. 10 - Child Support Guidelines

         Section I. Authority and Scope

         Pursuant to Act 948 of 1989, as amended, codified at Ark. Code Ann. § 9-12-312(a) and the Family Support Act of 1988, Pub. L. No. 100-485 (1988), the Court adopted and published Administrative Order Number 10, titled "Child Support Guidelines." Pursuant to Act 907 of 2019, codified at Ark. Code Ann. § 9-12-312(a)(4), the attached Family Support Chart is based on payor income and recipient income. The attached Chart therefore supersedes any prior payor-income-based family support chart. (Section II.1 discusses when this Order's incorporation of the Income Shares Model affects existing child-support orders.) This Administrative Order includes and incorporates by reference the "Forms" Addendum: Sample Calculation, Sample Language for Child-Support Orders, Monthly Family Support Chart (hereinafter "Chart"), Child Support Worksheet (hereinafter "Worksheet"), and the revised Affidavit of Financial Means.

         These Guidelines are based on the Income Shares Model, developed by the Child Support Guidelines Project of the National Center for State Courts. The Income Shares Model is based on the concept that children should receive the same proportion of parental income that they would have received had the parents lived together and shared financial resources. The best available economic data on child-rearing expenditures was used to develop the model A more detailed explanation of the Income Shares Model and the underlying economic evidence used to support it is contained in Development of Guidelines for Child Support Orders, Report to the Federal

         Office of Child Support Enforcement, September 1987 (National Center for State Courts, Denver, Colorado). The September 2019 Review of the Arkansas Child Support Guidelines, an Analysis of Economic Data, Development of Income Shares Charts, and Other Considerations, prepared by Jane Venohr, Ph.D., is available at www.arcourts.gov/forms-and-publications/arkansas-child-support-guidelines.

         Under the Income Shares Chart, each parent's share of the charted-amount is that parent's prorated share of the two parents' combined income. The Chart reflects the average amount of money that families in the United States spend on their children. Differences between Arkansas prices and prices across the United States more generally have been accounted for using an index that the U.S. Bureau of Economic Analysis (BEA) developed. The Chart also considers and accounts for:

• federal and state income taxes and FICA;
• average child-rearing expenditures using current measurements developed by Professor David Betson using the Rothbarth methodology to separate the children's share of expenditures from total expenditures;
• out-of-pocket medical expenses of $250.00 per child per year.

         The Chart excludes parental expenditures for work-related childcare, the child's share of health insurance premiums, and outof-pocket medical expenses over $250.00 per child per year.

         These Guidelines and the accompanying Worksheet assume that the parent to whom support is owed is spending his or her calculated share directly on the child. For the parent with the obligation to pay support, the pro-rata charted amount establishes the base level of child support to be given to the custodian. The base amount may, however, be adjusted to account for work-related childcare expenditures, the child's share of the health insurance premium, out-of-pocket medical expenses exceeding $250.00 per child per year, the self-support reserve, or other factors a court determines to be in the best interest of a child or children.

         Section II. Use of the Guidelines

         There is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount to be awarded in any judicial proceeding for divorce, separation, paternity, guardianship, or child support.

         In addition to an initial award for child support or the modification of an existing obligation, these Guidelines should be used to assess the adequacy of agreements for child support and to encourage parties to settle support-related disputes in a comprehensive manner.

         These Guidelines provide calculated amounts of child support for a combined parental gross income of up to $30, 000.00 per month, or $360, 000.00 per year. The child-support obligation for incomes above $30, 000.00 per month shall be determined on a case-by-case basis, at the discretion of the court.

         These Guidelines assume that the non-custodial parent has the minor child(ren) overnight in his or her residence less than 141 overnights per calendar year.

         1. Modification of Existing Child-Support Obligation:

         Pursuant to Act 904 of 2019, codified at Arkansas Code Annotated § 9-14-107(c)(2), an inconsistency between an existing child-support award and the amount of child support that results from applying the Family Support Chart based on the Income Shares Model shall be a material change of circumstances sufficient to support a petition to modify child support according to the Chart unless:

a. The inconsistency does not meet a reasonable quantitative standard established by Arkansas Code Annotated § 9-14-107;
b. The inconsistency exists because the amount of the child-support award was a justified deviation from the Guidelines amount and no material change of circumstances regarding the deviation rationale has occurred; or
c. The inconsistency is due solely to a promulgation of a revised Family Support Chart.

         2. Deviation from the Chart:

         All orders granting or modifying child support (including agreed orders) shall contain the court's determination of the payor's income, payee's income, recite the amount of support required under these Guidelines, and state whether the court deviated from the presumptive child-support calculation set by the Worksheet and these Guidelines. If an order deviates from the Guidelines amount, then the order must explain the reason(s) for the deviation. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Worksheet is correct if the court provides in the order a specific written finding that the Worksheet-based amount is unjust or inappropriate. When deciding whether the Worksheet-based amount is unjust or inappropriate, the court must consider all the relevant factors, including what is in the child's or children's best interest. A deviation from these Guidelines should be the exception rather than the rule. If a court chooses to deviate from the Guidelines amount, then it must make written findings and explain the deviation. When determining whether to deviate from the Guidelines amount, a court should consider the following:

a. Educational expenses for the child(ren) (i.e., those incurred for private or parochial schools, or other secondary schools where there is tuition or related costs) and/or the provision or payment of special education needs or expenses for the child(ren);
b. The procurement and/or maintenance of life insurance, dental insurance, and/or other insurance for the children's benefit (For health insurance premiums, see Section II.2 below);
c. Extraordinary travel expenses for court-ordered visitation;
d. Significant available income of the child(ren);
e. The creation or maintenance of a trust fund for the children;
f. The support given by a parent for minor children in the absence of a court order;
g. Extraordinary time spent with the non-custodial parent;
h. Additional expenses incurred because of natural or adopted children living in the home, including step-children if the court finds there is a legal responsibility to a step-child; and
i. The provision for payment of work-related childcare, extraordinary medical expenses for the child in excess of $250.00 per year per child, and/or health insurance premiums. Ordinarily, these expenses will be divided pro rata between the parents and added to the base child support of the obligated parent on the Worksheet. In that scenario, it shall not support a deviation. However, if the court chooses not to add them in the total child-support obligation, they could support a deviation.

         3. Self-Support Reserve, Minimum Order, and Deviation from the Minimum Order:

         In cases where the obligated parent's monthly gross income is less than $900.00, the Chart applies a self-support reserve (SSR). The SSR considers the basic subsistence needs of the obligated parent and is based on the Federal Poverty Guidelines multiplied by Arkansas's price parity. Arkansas's price parity is the index used to adjust the Chart to reflect Arkansas prices. If the obligated parent's gross income falls within the shaded area of the Chart, then the basic child-support obligation and the obligated parent's total child-support obligation are computed using only the obligated parent's income. In these cases, health insurance premiums, extraordinary medical expenses, and childcare expenses shall not be used to calculate the total child-support obligation. However, payment of these costs by either parent may be used as a reason to deviate from these Guidelines.

         When the obligated parent's monthly gross income is less than $900.00, a presumptive minimum award of $125.00 per month must issue unless a party can rebut the presumptive amount by a preponderance of the evidence. Some factors that a court may consider when deciding whether a party has rebutted the minimum order amount include but are not limited to the following:

a. There is a large adjustment due to parenting time;
b. The obligor is incarcerated (see Section II.4 below);
c. The obligor is institutionalized due to a mental illness or other impairment;
d. The obligor has a verified physical disability that precludes work;
e. The obligor's only income is Supplemental Security Income (SSI);
f. The obligor's ability or inability to work; or
g. Any other deviation factor listed above in Subsection II.2 or any income imputation factor listed below in Section III.7.

         4. Incarcerated Individuals

         Pursuant to Act 904 of 2019, codified at Arkansas Code Annotated § 9-12-312(a), § 9-14-106(a), and § 9-14-107(a), the incarceration of a parent shall not be treated as voluntary unemployment for the purpose of establishing or modifying an award of child support. "Incarceration" means a conviction that results in a sentence of confinement to a local jail, state or federal correctional facility, or state psychiatric hospital for at least 180 days and excludes credit for time served before sentencing.

         Section ...


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