Children Legal Frequently Asked Questions

Child Abuse:

• How does a person report child abuse?
  Every state has statutes regarding the steps that a mandatory reporter needs to take when reporting child abuse or neglect. Generally, a report would include the name and address of the child and either the parents or the person(s) responsible for the child, the age of the child, a description of the child’s injuries, and any other related information. There are also certain steps to take in order for the report to be shared with any relevant organizations such as social service and law enforcement agencies, as well as prosecutors` offices. Some states have special rules in cases that involve a child’s death or for a baby that has been exposed to drugs.

• Is it legally required to report suspicion of child abuse?
  Any person may report child abuse or neglect. An exception is any communication that is considered under law to be privileged, such as in an attorney-client relationship. Every state has statutes, which identify mandatory reporters of child abuse. All professionals who work with children are included. Doctors, nurses, hospital personnel, dentists, medical examiners, and coroners are mandatory reporters. Mental health professionals and social workers are as well. Additionally, school personnel, law enforcement officials, and childcare providers are mandatory reporters. In some states, any person who suspects child abuse or neglect is required to report it.

• What is the law relating to child abuse, reporting requirements, etc.?
  Recent legislative changes have focused upon the increasing prevalence in our society of child abuse. The definition of child abuse has been expanded, as have the child abuse reporting requirements, to ensure swift intervention on behalf of the child who is being abused or where abuse is reasonably expected. As a general rule, situations involving suspected child abuse are referred to and fall under the exclusive jurisdiction of the juvenile court system in each jurisdiction. The court may exercise jurisdiction in situations involving suspected child abuse with the end result of the exercise of that jurisdiction being to have the child declared a ward of the court and thus subject to the decision-making power of the court pertinent to issues typically reserved to the legal and physical custodians. The ultimate goal of the court, assuming a basis for taking jurisdiction has been found, is to prevent the recurrence of the abuse, to eliminate the existence of abusive conditions in the home, and to provide a reunification of the family and the child in situations where that is possible. The court has sweeping power in this area to terminate parental rights, place children for adoption and/or place children outside of parental control and custody and into foster homes should the circumstances so require. The focus of the court is on the protection of the child, and there are significant jurisdictional protections for both the child and the parent in these circumstances. Court proceedings are generally conducted in two phases, the jurisdictional phase and the dispositional phase. The level of proof in the jurisdictional phase is a preponderance of the evidence. The burden of proof at the dispositional phase is more stringent. Clear and convincing evidence is required to remove the child from the parent or guardian’s physical custody and cannot be based upon speculation. Often the child will be placed back in the home under strict supervision by the appropriate social services agency of the jurisdiction. The parent may be subject to an order that the offending parent seek treatment, relocate out of the minor’s residence, or participate in restricted or monitored visitation only. If this is unrealistic, the court can order placement in a foster home pending termination of parental rights and placement of the child for adoption. Reporting requirements are covered in a number of state statutes to ensure early intervention.

• What can happen to a person who fails to report child abuse?
  Most states have enacted statutes, which specify the punishments for failing to report child abuse or neglect. These statutes apply to those people who knowingly and willfully fail to report. A person who should have known about the abuse can be punished for it. Typically the punishment can be a fine or imprisonment.

Child Support:

• WHAT IS CHILD SUPPORT?
  Child support is a payment by one parent (often the non-custodial parent) to the other parent for the support of their common child. (See Child Support and Visitation.) It is in the best interest of a child for both parents to be obligated to pay for the support of their child. An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.

• WHAT IS CHILD SUPPORT USED FOR?
  Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind: A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life; and Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities. If the child has a wealthy parent, that child is entitled to, and therefore needs something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent’s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the payor parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent’s other relationships). Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent’s elevated standard of living despite custodial parent’s substantially lower income. Awarding supported children a percentage of a non-custodial parent’s future bonuses ensures they will share in his standard of living.

• WHO CAN BE ORDERED TO PAY IT?
  A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

• WHEN CAN A CHILD SUPPORT ORDER BE CHANGED OR MODIFIED?
  An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent’s financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

• HOW LONG MUST CHILD SUPPORT BE PAID?
  The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child’s minority, generally through the child’s high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.

• HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?
  Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

• WHAT OTHER ITEMS DO FORMULAS CONSIDER?
  Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the custodial parent (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the non-custodial parent (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other. Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common. Special Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid. Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support. Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount.

• WHAT INCOME ITEMS DO TYPICAL FORMULAS COVER?
  The formula is based on the respective net incomes of the parents. Federal and state income taxes, Social Security and Medicare tax, health insurance, union dues and other mandatory expenses are subtracted from a parent’s gross income (that is, income from all sources including, but not limited to, wages and investments) to arrive at his/her net income.

• AFTER A CHILD HAS BEEN RAISED, IS THE PARENT WHO RAISED THEM ABLE TO SUE FOR BACK CHILD SUPPORT?
  This depends on the law in the state where the parents live. In some states, the parent who was to receive child support can collect support owed even after the children are adults. The parent who was supposed to pay child support cannot claim that the child support is too old to be collected, or that the other parent should have tried to collect sooner, except to the extent collection is barred by the statute of limitations.

• What happens to allow the emancipation of a minor?
  In order to become an emancipated minor, one of three circumstances must be present: the minor has entered into a valid marriage, is on active duty in the Armed Forces, or has received a declaration of emancipation. As such a minor can become emancipated either by requesting same from the court or by taking a direction in life (marriage or enlistment) that will result in emancipation. The effect of emancipation is that the minor is now, for all practical purposes, treated as an adult. This includes freedom from the right to support by the parents, the right of parents to control finances, freedom of the parents from vicarious liability for the minor’s torts. The emancipated minor can sue in their own name, consent to virtually every aspect of medical care, and in all other aspects control their life without first obtaining the consent of the parents. The procedure for emancipation is rather straightforward. A petition for emancipation is prepared and served upon the minor’s parents (or legal guardians), thus giving them notice of the minor’s desire to become emancipated. If the facts are adequately proven, the court will issue its declaration of emancipation, which becomes conclusive evidence that the minor is emancipated.

Learn More on:

Emancipation

Parenting Through Divorce and After

If you or someone you know in Missouri is in need of Family Law Legal Services, please contact Family Lawyer Alan W. Cohen at (314)863-8800 or via the contact form in right column for prompt and considerate attention.

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