State of Wisconsin
Department of Children and Families
Child Support Guidelines Quadrennial Review
The Wisconsin Department of Children and Families proposes to repeal s. DCF 150.02 (10); to amend ch. DCF 150 (preface) and ss. DCF 150.02 (17), (19), and (21), 150.035 (1) (b)(Note), and 150.04 (1) (b) 3. a. and (4) (a); to repeal and recreate ss. DCF 150.02 (14), 150.03 (3), and 150.035 (1) (a); and to create ss. DCF 150.02 (15m), 150.03 (3m), and 150.035 (1) (ag), (ar), and (b) (title), relating to the child support guidelines quadrennial review. Analysis Prepared by the Department of Children and Families
Statutory authority: Section 49.22 (9), Stats. Statutes interpreted: Section 49.22 (9), Stats. Related statutes and rules: Section 767.511, Stats. Explanation of Agency Authority
Section 49.22 (9), Stats., states that the department shall promulgate rules that provide a standard for courts to use in determining a child support obligation based upon a percentage of the gross income and assets of either or both parents. The rules shall provide for consideration of the income of each parent and the amount of physical placement with each parent in determining a child support obligation in cases in which a child has substantial periods of physical placement with each parent. Summary of the Proposed Rules
Federal regulations require that states review their child support guidelines every 4 years to determine whether the use of the guidelines results in appropriate child support order amounts. What is considered appropriate changes over time as states continue to research and analyze case data, labor market data, and other economic factors.
As part of this federally-required review, the department established a Child Support Guidelines Review Advisory Committee to provide input and recommendations on the use of the child support guidelines in ch. DCF 150. The committee included representatives from the judiciary, the Wisconsin bar, county child support agencies, and organizations representing parents and children. The proposed rules are based on the committee’s recommendations. Federal Rule and Imputation of Income
Income imputed based on earning capacity. On December 20, 2016, a final federal rule, entitled Flexibility, Efficiency, and Modernization in Child Support Enforcement Program, was published that requires states to revise their child support guidelines on imputation of income. The federal rule provides that a child support order must be based on evidence of the parent’s ability to pay. If income imputation is authorized, the specific circumstances of the parent must be considered to the extent known, including various factors specified in the rule.
The proposed rules repeal and recreate the income imputation provision in s. DCF 150.03 (3) based on the 2016 federal rule. The proposed language is intended to provide objective factors that will be helpful in determining a parent’s earning capacity and that can be applied fairly to parties across the state. The proposed rules provide that 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:
— The parent’s recent work experience.
— The parent’s earnings during previous periods of employment.
— The parent’s job skills and training.
— The parent’s education.
— A vocational evaluation of the parent, if available.
— The parent’s diligence in seeking appropriate employment.
— Employment barriers the parent faces, such as homelessness, lack of a driver’s license, alcohol or other drug dependence, or immigration status.
— The parent’s criminal history and history of incarceration.
— If the parent is unemployed, whether the unemployment is due to the parent’s job-related misconduct.
— 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.
— 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.
— The parent’s participation in reasonable career or occupational training to establish basic skills or enhance earning capacity.
— The parent’s age.
— The parent’s assets.
— The location of the parent’s residence.
— The parent’s receipt of Wisconsin Works cash assistance.
— The parent’s receipt of Supplemental Security Income.
— Any other factor that the court determines is relevant.
Under the current rules, the court may impute income to the parent at an amount that represents the parent’s ability to earn, based on the parent’s education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement, and the availability of work in or near the parent’s community.
Income imputed when no information is known. The proposed rules continue to allow imputation of income if 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. Under the current rules, the court may impute the income to the parent that a person would earn by working 35 hours per week for the higher of the federal or state minimum hourly wage. Under the proposed rules, the court may impute income to the parent that an individual would earn by working 10 to 35 hours per week for the higher of the federal or state minimum hourly wage.
Shared Placement and Equivalent Care
The proposed rules clarify when credit for equivalent care may be given when calculating a parent’s period of placement for purposes of determining the child support obligations of parents who have shared placement.
A parent’s period of placement is determined by calculating the number of overnights or equivalent care provided by the parent. Credit for equivalent care is given when a parent is caring for the child during a period 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.
Under the current rules, parents are sometimes receiving equivalent care credit for care during periods that were intended to be part of overnight care, resulting in duplicate credit for that care. The proposed rules provide that a parent may not receive credit for equivalent care 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.
The proposed rules also move information currently in the definition of “equivalent care” in s. DCF 150.02 (10) to the shared-placement provision in s. DCF 150.035 and correct a typo in the shared placement example. Serial-Family Parent
Under the current rules, the court may determine a serial-family parent’s monthly income available for support of a child in a subsequent family by calculating the parent’s monthly income available for child support under s. DCF 150.03 (1) and subtracting the monthly amount of the existing support order for the child in the first family. The proposed rules provide that the court may subtract the higher of the monthly amount of the existing support order or the amount that would currently be determined under the child support guidelines. The proposed change is intended to reduce the need for multiple court actions to determine and modify the child support obligations of a serial-family parent.
General
The proposed rules also remove pronouns from the rule chapter.
Summary of Factual Data and Analytical Methodologies
The proposed rules are based on the recommendations in the 2021 Child Support Guidelines Review Advisory Committee Report to the department.
