Swords and Shields Belong in Fantasy Novels, Not Family Law: Birth Order Bias in the Kansas Child Support Guidelines' Multiple-family Application
| Date | 01 August 2022 |
| Publication year | 2022 |
| Pages | 26 |
By Tristan Kimbrell and Megan Kimbrell
Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Kansas Bar Journal, or its Board of Editors. The material is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment.
Perhaps the most fundamental tenet of family law holds that parents should protect and support their children. One way to legally enforce that tenet is through the creation of child support guidelines that put a monetary value on the economic support a parent owes a child. Ideally such guidelines would ensure that parents provide a fair amount of support to each of their children. The way in which the Kansas Child Support Guidelines are written today however, results in some children being relegated to a lesser status. This lesser status means that those children potentially receive reduced monetary support compared to their brothers and sisters.
To understand how the Kansas Child Support Guidelines create this inequality between siblings, we have to first understand several of the provisions within the Guidelines. To determine the appropriate level of monetary support for children under the Guidelines, courts use a child support worksheet to calculate the child support amount the nonresidential parent pays to the residential parent. (Throughout this article we will refer to the parent who has physical custody of a child the majority of the time as the residential parent, and the parent who has physical custody for a lesser amount of time as the non-residential parent.) The support obligation calculated by the child support worksheet depends on several factors, including the incomes of the parents, childcare costs, and medical and dental insurance premiums.[1] The most recent Kansas Child Support Guidelines were adopted October 9, 2019, and became effective January 1, 2020.[2] Courts must use the Guidelines as a "basis for establishing and reviewing" all child support orders in Kansas.[3]
In calculating support obligations, the Child Support Guidelines contemplate several different family arrangements. Beside the above scenario where one parent has physical custody of a child a majority of the time, there is also divided residency, where the parents have two or more children together and each parent is the residential parent with majority physical custody of one or more of the children. The Guidelines also contemplate shared residency, where the parents share the children's time equally. Another possible arrangement occurs when a parent has another child from a different relationship for which the court has ordered that parent to pay child support as the non-residential parent. The Guidelines state that in determining the incomes of the parents, if a parent pays child support for a child in a different case, then that obligation shall be deducted from the parents income.[4]
The Guidelines anticipate one additional family arrangement: a non-residential parent who pays child support has a child from a different relationship that lives with the parent. The Guidelines include instructions for how to calculate child support in such a case in a section called the Multiple-Family Application.[5] Under the Multiple-Family Application, if the non-residential parent has a child from another relationship that resides with him or her, then the child support worksheet utilizes the total number of children the non- residential parent is obligated to support (i.e., the number of children that resulted from the relationship with the residential parent, plus the number of children residing with the non-residential parent).[6] The child support obligation is then determined for the total number of children in the appropriate child support table, but the child support obligation for the non-residential parent is only the amount for the children residing with the residential parent. By using the total number of children that the non-residential parent is obligated to support in the child support table, the final child support obligation of the nonresidential parent is thereby reduced. This reduction in the child support obligation is reasonable, as the non-residential parent must support the children that live with him or her, and thus has less available income to support the children living with the residential parent.
It should be noted that the Multiple-Family Application only applies to children living with the non-residential parent that the parent is legally obligated to support. The Multiple-Family Application does not apply to stepchildren, as non-residential parents have no legal obligation to support stepchildren.[7]
A non-residential parent with a child living at home does not always receive the benefit of the Multiple-Family Application, though. According to the Guidelines, "[t]he multiple-family application may be used only by a parent not having primary residency when establishing an original order of child support or an increase in support is sought by the parent having primary residency"[8] In other words, courts may consider the child living with the non-residential parent when first establishing a child support obligation, and may consider the child if the residential parent motions for an increase in the child support obligation. However, courts may not consider a child living with the non-residential parent if that parent motions to lower the child support obligation after the obligation has already been established. Practitioners in Kansas often call this the "sword and shield rule." The nickname arises from the fact that a non-residential parent may not use a child living at home as a "sword" to reduce child support, but may use that child as a "shield" to prevent the residential parent from increasing a child support obligation.
An example may help illustrate the sword and shield rule more clearly. Riley and Jaime were married and had one child together. After they divorced, Riley became the residential parent of the child, with Jaime paying Riley child support under a court-ordered child support obligation. Jaime later remarried, and the new partners had a child. After this subsequent child is born, Jaime may not use the Multiple-Family Application to reduce the child support obligation for the child with Riley. To do so would be to use the subsequent child as a "sword." Jaime would only receive the benefit of the Multiple-Family Application if Riley motioned to increase the child support amount Jaime pays, as Jaime could then use the subsequent child as a "shield" against an increase in the obligation.
The rest of this article will argue that while there are understandable reasons for including the sword and shield rule in the Kansas Child Support Guidelines, ultimately, the rule is biased against subsequent children living with nonresidential parents. This bias relegates subsequent children to a lesser status, and potentially harms them economically. Consequently, we believe the sword and shield rule should be removed from the Guidelines. To help convince the reader, we begin with a brief history of the Kansas Child Support Guidelines, and the application of the sword and shield rule in Kansas case law. We also examine practices in other states, before moving on to the arguments for and against the sword and shield rule.
Background
Brief History of the Kansas Child Support Guidelines
Prior to 1987, Kansas did not have uniform guidelines for determining child support—the amount of child support ordered in a particular case was left up to the courts discretion. This changed with the passage of the federal Child Support Enforcement Act of 1984. The Act required states to develop child support guidelines to serve an advisory role in child support calculations.[9] In response, Governor John Carlin appointed the Kansas Commission on Child Support to propose a set of consistent child support guidelines.[10] The Kansas Supreme Court adopted the proposed guidelines in 1987 as an administrative order.[11] The 1987 Child Support Guidelines were not mandatory, but were instead "a suggested basis for establishing and reviewing child support guidelines."[12]
The non-binding nature of the Guidelines changed after passage of the federal Family Support Act of 1988, which required child support guidelines be rebuttable presumptions.[13] In 1989, the Kansas Supreme Court amended the Child Support Guidelines to state that the Guidelines "create a rebuttable presumption for the reward of child support in all cases."[14] As a result, Kansas courts were required to follow the Guidelines, and if they did not, judges had to provide written findings on the record as to why the Guidelines were not followed.[15] The same has been true for every set of Child Support Guidelines adopted by the Kansas Supreme Court since 1989—the Guidelines create a rebuttable presumption that judges and hearing officers must follow.
Current federal law requires each state to review its child support guidelines every four years.[16] To help with this review, the Kansas Supreme Court appoints individuals to the Kansas Child Support Guidelines Advisory Committee to review the Guidelines. The Kansas Supreme Court adopted the last set of Guidelines in 2020.[17] The next set of Guidelines are therefore due in 2024, and the Kansas Child Support Guidelines Advisory Committee will begin meeting in 2022 to start their review.
The sword and shield rule did not make its appearance in the Kansas Child Support Guidelines until 1994. The 1987 Guidelines merely stated that one factor that may warrant adjustment to a child...
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