CSSB 46(HSS): "An Act relating to child support awards; and repealing Rule 90.3, Alaska Rules of Civil Procedure."
00 CS FOR SENATE BILL NO. 46(HSS) 01 "An Act relating to child support awards; and repealing Rule 90.3, Alaska Rules of Civil 02 Procedure." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 25 is amended by adding a new chapter to read: 05 Chapter 28. Child Support Awards. 06 Sec. 25.28.010. Guidelines; primary physical custody. (a) A tribunal shall 07 calculate a child support award in a case in which one parent is awarded primary 08 physical custody as an amount equal to the adjusted annual income of the noncustodial 09 parent multiplied by a percentage specified in (b) of this section. 10 (b) To calculate the child support award, the tribunal shall multiply the 11 noncustodial parent's adjusted annual income by the following percentages: 12 (1) 20 percent for one child; 13 (2) 27 percent for two children; 14 (3) 33 percent for three children; and
01 (4) an additional three percent for each additional child. 02 (c) The tribunal may allow the obligor parent to reduce child support 03 payments by up to 75 percent for a period in which the obligor parent has extended 04 visitation of more than 27 consecutive days. The order must specify the amount of the 05 reduction that is allowable if the extended visitation is exercised. 06 (d) The tribunal may calculate child support based on a determination of the 07 potential income of a parent who voluntarily and unreasonably is unemployed or 08 underemployed. A determination of potential income may not be made for a parent 09 who is physically or mentally incapacitated, or who is caring for a child under two 10 years of age to whom the parents owe a joint legal responsibility. Potential income 11 shall be based on the parent's work history, qualifications, and job opportunities. The 12 tribunal also may impute potential income for nonincome producing or low income 13 producing assets. 14 (e) In this section, "adjusted annual income" means the parent's total income 15 from all sources less 16 (1) mandatory deductions, including 17 (A) federal, state, and local income tax; 18 (B) social security tax or the equivalent contribution to an 19 alternate plan established by a public employer, and self-employment tax; 20 (C) Medicare tax; 21 (D) mandatory union dues; 22 (E) mandatory contributions to a retirement or pension plan; 23 (2) voluntary contributions to a retirement or pension plan or account 24 in which the earnings are tax-free or tax-deferred, except that the total amount of these 25 voluntary contributions plus any mandatory contributions under (1)(E) of this 26 subsection may not exceed 7.5 percent of the parent's gross wages and self- 27 employment income; 28 (3) child support and alimony payments arising from previous 29 relationships that are required by another tribunal and actually paid; 30 (4) child support for children from prior relationships living with the 31 parent, calculated by using the formula under this chapter; and
01 (5) work-related child care expenses for the child who is the subject of 02 the child support order. 03 Sec. 25.28.020. Guidelines; shared, divided, and hybrid custody awards. 04 (a) The tribunal shall calculate shared, divided, and hybrid physical custody awards as 05 provided in this section. 06 (b) The tribunal shall calculate a child support award in a case in which the 07 parents are awarded shared physical custody by 08 (1) calculating the annual amount each parent would pay to the other 09 parent under AS 25.28.010 assuming the other parent had primary custody; in this 10 calculation, the income limit in AS 25.28.030(c) and the minimum support amount in 11 AS 25.28.030(d) apply; 12 (2) multiplying the amount determined under (1) of this subsection for 13 each parent by the percentage of time the other parent has physical custody of the 14 child; however, if the tribunal finds that the percentage of time each parent will have 15 physical custody does not accurately reflect the ratio of funds each parent will directly 16 spend on supporting the child, the tribunal shall vary this percentage to reflect its 17 findings; 18 (3) determining which parent has the greater amount under (2) of this 19 subsection; the parent with the greater amount under (2) of this subsection is the 20 obligor parent, and the annual award is equal to the difference between the two 21 amounts under (2) of this subsection multiplied by 1.5; however, if this amount is 22 greater than the amount of support calculated under AS 25.28.010 assuming the 23 obligor parent has primary custody, the annual support is the amount calculated under 24 AS 25.28.010. 25 (c) The child support award for shared custody under (b) of this section must 26 be paid in 12 equal monthly installments, except that if 27 (1) shared custody is based on the obligor parent's having physical 28 custody for periods of 30 consecutive days or more, the total annual award may be 29 paid in equal installments over those months in which the obligor parent does not have 30 physical custody; or 31 (2) the obligor parent's income is seasonal, the tribunal may order
01 unequal monthly support payments as provided in AS 25.28.030(g) and (h). 02 (d) The child support order must state that failure to exercise sufficient 03 physical custody to qualify for shared physical custody under (b) or (c) of this section 04 is grounds for modification of the child support order. Denial of visitation by the 05 custodial parent is not cause to increase a child support award. 06 (e) The tribunal shall 07 (1) calculate a child support award in a case in which the parents are 08 awarded divided custody by determining the amount each parent would pay to the 09 other parent for support of a child for whom that parent has primary physical custody 10 under AS 25.28.010, taking into account the income limit in AS 25.28.030(c) and the 11 minimum support amount in AS 25.28.030(d), and offsetting those amounts; and 12 (2) consider whether the amount determined under (1) of this 13 subsection should be varied under AS 25.28.030(b). 14 (f) The tribunal shall 15 (1) calculate a child support award in a case in which the parents are 16 awarded hybrid custody by 17 (A) applying AS 25.28.010, taking into account the income 18 limit in AS 25.28.030(c) and the minimum support amount in 19 AS 25.28.030(d), to determine support for a child in the primary physical 20 custody of each parent; 21 (B) applying (b) of this section to determine support for a child 22 in the shared physical custody of the parents; 23 (C) adjusting pro rata the percentages provided in 24 AS 25.28.010(b) based on the number of children to which each type of 25 custody applies; and 26 (D) combining the amounts to determine the net obligation; and 27 (2) consider whether the amount determined under (1) of this 28 subsection should be varied under AS 25.28.030(b). 29 Sec. 25.28.030. Exceptions to support awards. (a) Notwithstanding the 30 requirements in AS 25.28.010 and 25.28.020, the tribunal may vary the award for the 31 reasons stated in this section.
01 (b) The tribunal may vary the child support award as calculated under the 02 other provisions of this chapter for good cause on proof by clear and convincing 03 evidence that manifest injustice would result if the support award were not varied. The 04 tribunal shall specify in writing the reason for the variation, the amount of support that 05 would have been required but for the variation, and the estimated value of any 06 property conveyed instead of support calculated under the other provisions of this 07 chapter. Good cause may include a finding that unusual circumstances exist that 08 require variation of the award in order to award an amount of support that is just and 09 proper for the parties to contribute toward the nurture and education of their children. 10 The tribunal shall consider the custodial parent's income in this determination. 11 (c) The calculation for primary physical custody under AS 25.28.010 does not 12 apply to the extent that the parent has an adjusted annual income of more than 13 $105,000. The tribunal may make an additional award only if it is just and proper, 14 taking into account the needs of the child, the standard of living of the child, and the 15 extent to which that standard should reflect the supporting parent's ability to pay. 16 (d) Except as provided in AS 25.28.010(c) and 25.28.020, the minimum child 17 support amount that may be ordered is $50 a month or $600 a year. 18 (e) In addition to ordering a parent to pay child support as calculated under 19 this chapter, the tribunal may, in appropriate circumstances and when the parents are 20 minors as described in (f) of this section, order one or more grandparents of a child to 21 pay child support to an appropriate person in an amount determined by the tribunal to 22 serve the best interests of the child; however, the amount may not exceed the lesser of 23 (1) a proportionate share of the amount required to provide care in a 24 supervised setting to the grandchild, as determined by the tribunal; or 25 (2) the amount that would have been awarded if the child's parents had 26 the incomes of the child's grandparents and AS 25.28.010 and 25.28.020 were applied. 27 (f) An order under (e) of this section may be issued only with respect to a 28 child whose parents are both minors, and the order terminates when either parent 29 becomes 18 years of age. The tribunal shall specify in writing the reasons it considers 30 it to be appropriate to order a grandparent to pay child support under this subsection 31 and the factors considered in setting the amount of the child support award. In this
01 subsection, "grandparent" means the natural or adoptive parent of the minor parent. 02 (g) If the noncustodial parent's income is seasonal, the tribunal may order that 03 the annual support amount be paid in unequal monthly payments, with higher 04 payments during the months the parent expects to receive higher income and lower 05 payments in other months; the tribunal may not make an unequal payment order unless 06 (1) the tribunal finds that the burden of budgeting for periods of 07 unequal income should be placed on the obligee rather than the obligor; and 08 (2) the obligee agrees. 09 (h) An order of the tribunal for unequal payments under (g) of this section 10 must specify the annual support amount, the average monthly support amount, and the 11 amount due for each month. The order must provide that variations from the average 12 monthly amount begin with monthly payments in excess of the average monthly 13 amount so that a deficit situation cannot occur. Until the excess payments begin, the 14 tribunal shall order payment of the average monthly amount. 15 Sec. 25.28.040. Health care expenses. (a) The tribunal shall include in the 16 order coverage of the child's health care needs and require health insurance for the 17 child if insurance is available to either parent or both parents at a reasonable cost. The 18 tribunal shall consider whether the child is eligible for services through the Indian 19 Health Service, any other entity, or other insurance coverage before ordering either 20 parent or both parents to provide health care coverage through insurance, cash medical 21 support, or other means. A court shall find that health insurance is available only if the 22 dependent child has reasonable geographic access to the covered services or the 23 insurance includes the coverage of transportation needed for the services. 24 (b) The tribunal shall allocate equally the cost of insurance and cash medical 25 support between the parents unless the tribunal orders otherwise for good cause. An 26 obligor's child support obligation shall be decreased by the amount of the obligee's 27 portion of health insurance payments and cash medical support ordered by the tribunal 28 and actually paid by the obligor. The tribunal shall increase a child support award by 29 the obligor's portion of health insurance if the obligee is ordered to, and actually does, 30 obtain and pay for insurance. 31 (c) The cost of insurance is the cost attributable to the child for whom support
01 is paid. If the cost to the employee of covering the employee alone is the same as the 02 cost to the employee of covering the employee and dependents, then there is no 03 additional cost to the employee for adding the child and no portion of the cost of 04 coverage may be allocated to the child. If dependent coverage can be added for a 05 single cost, rather than for each dependent, and the dependent coverage covers 06 dependents in addition to the child subject to the order, the cost of the dependent 07 coverage shall be allocated equally among the dependents covered. If there is reason 08 to believe that there is an incremental cost to the employee for insuring dependents but 09 evidence of that incremental cost is unavailable, the cost of insurance is determined by 10 dividing the total cost of coverage by the number of family members covered and 11 multiplying that amount by the number of children subject to the order. 12 (d) The tribunal shall allocate equally between the parties the cost of 13 reasonable health care expenses not covered by insurance unless the tribunal orders 14 otherwise for good cause. A party shall reimburse the other party for the party's share 15 of the uncovered health care expenses within 30 days after receipt of the bill for the 16 health care, payment verification, and, if applicable, a health insurance statement 17 indicating what portion of the cost is uncovered. The tribunal shall allocate the 18 reasonable, uncovered health care expenses exceeding $5,000 in a calendar year based 19 on the parties' relative financial circumstances when the expenses occur. 20 (e) A court shall find that the cost of cash medical support or private health 21 insurance is reasonable under this section if the cost to the responsible parent does not 22 exceed five percent of the responsible parent's gross income. In calculating the 23 percentage for purposes of health insurance coverage, the cost is the cost of adding the 24 dependent child to the existing insurance coverage or the difference between self-only 25 and family coverage. 26 (f) In this section, 27 (1) "cash medical support" means an amount ordered to be paid toward 28 the cost of health insurance provided by a public entity or by another parent through 29 employment or otherwise, or for other medical costs not covered by insurance; 30 (2) "health care expenses" includes medical, dental, vision, and mental 31 health counseling expenses.
01 Sec. 25.28.050. Child support affidavit and documentation. (a) Subject to 02 the confidentiality requirements of Rule 90.1(f), Alaska Rules of Civil Procedure, each 03 parent in a proceeding of a tribunal at which child support is involved shall file a 04 statement under oath that states the parent's adjusted annual income and the 05 components of adjusted annual income as described in AS 25.28.010(e). This 06 statement must be filed with a party's initial pleading in superior court, including the 07 dissolution petition, divorce complaint or answer, motion to modify, and any response 08 to a motion to modify, and must be accompanied by documentation verifying the 09 income. The documents must be redacted to delete social security numbers and to 10 provide only partial financial account information as provided in Rule 90.1(f), Alaska 11 Rules of Civil Procedure. The statement must state whether the parent has access to 12 health insurance for the children and, if so, the additional cost to the parent of the 13 children's health insurance. 14 (b) While there is an ongoing monthly support obligation, each party shall 15 provide to the other party, within 30 days after a written request, documents such as 16 tax returns and pay stubs showing the party's income for the prior calendar year. The 17 party making the request shall provide documentation of the party's annual income for 18 the same period at the time the request is made. A request under this section may not 19 be made more than once a year. This section does not preclude discovery under the 20 Alaska Rules of Civil Procedure. 21 (c) Unless the information has already been provided to the tribunal under 22 Rule 90.1(f), Alaska Rules of Civil Procedure, a statement under (a) of this section 23 must be accompanied by a confidential information sheet as described in Rule 90.1, 24 Alaska Rules of Civil Procedure. Once a complete confidential information sheet has 25 been submitted to the tribunal listing names, dates of birth, and social security 26 numbers as required, the parties shall omit or redact social security numbers from 27 documents subsequently filed in the action unless otherwise ordered by the tribunal. 28 (d) The tribunal may withhold or assess costs or attorney fees for a violation 29 of this section as the circumstances and discouragement of like conduct in the future 30 may require. Costs and attorney fees may be imposed on offending attorneys or 31 parties.
01 Sec. 25.28.060. Travel expenses. After determining an award of child support 02 under this chapter, the court shall allocate between the parties reasonable travel 03 expenses that are necessary to exercise visitation as may be just and proper for the 04 parties to contribute. 05 Sec. 25.28.070. Modification; defense against arrearages. (a) A tribunal may 06 modify a final child support award on a showing of a material change of 07 circumstances as provided by state law. A material change of circumstances shall be 08 presumed if support as calculated under this chapter is more than 15 percent greater or 09 less than the outstanding support order. An award may be modified to require cash 10 medical support regardless of whether insurance is available to either parent if neither 11 parent has purchased health insurance. In this subsection, support includes health 12 insurance payments or cash medical support made under AS 25.28.040. 13 (b) A court may not modify a child support arrearage retroactively, except as 14 authorized by AS 25.27.166(d). A modification that is effective on or after the date 15 that a motion for modification, or a notice of petition for modification by the child 16 support services agency, is served on the opposing party is not considered a retroactive 17 modification. 18 (c) The tribunal may find that a parent and a parent's assignee are precluded 19 from collecting arrearages for support of a child that accumulated during a time period 20 exceeding nine months for which the parent agreed or acquiesced to the obligor 21 exercising primary custody of the child. A finding that preclusion is a defense must be 22 based on clear and convincing evidence. 23 Sec. 25.28.080. Third-party custody. (a) When the state, or another third 24 party entitled to child support, has custody of all children of a parent, the parent's 25 support obligation to the third party is an amount equal to the adjusted annual income 26 of the parent multiplied by the percentage specified in AS 25.28.010(b). If the third 27 party has custody of some but not all children, the parent's support obligation to the 28 third party is an amount equal to the adjusted annual income of the parent, multiplied 29 by the percentage specified in AS 25.28.010(b) for the total number of the parent's 30 children, multiplied by the number of the parent's children in third-party custody, 31 divided by the total number of the parent's children. In this subsection, the number of
01 the parent's children includes only children of the parent who live with the parent, are 02 substantially supported by the parent, or are in custody of the third party entitled to 03 support. 04 (b) If, in addition to a support obligation to a third party, one or both parents 05 retain primary or shared physical custody of at least one of their children, the support 06 obligation between the parents is calculated under the other provisions of this chapter, 07 without consideration of the third-party custodian or any children in the custody of the 08 third-party custodian, except that the percentage in AS 25.28.010(b) must be adjusted 09 pro rata for the number of children in the primary custody of a parent, or shared 10 custody of the parents, compared to the total number of children. After that calculation 11 is completed, any support owed may be offset with support owed to a third-party 12 custodian under (a) of this section in order to minimize transactions. 13 Sec. 25.28.090. Support order forms. All orders for payment or modification 14 of child support shall be entered on a form developed by the administrative director of 15 the tribunal. A party may lodge a duplicate of the tribunal form produced by a laser 16 printer or similar device. A device may also print, in a contrasting typestyle equivalent 17 to that produced by a typewriter, text that otherwise would have been entered by a 18 typewriter or word processor. A party or attorney who lodges a duplicate certifies by 19 lodging the duplicate that it is identical to the current version of the court form. 20 Sec. 25.28.100. Dependent tax deduction. The court may allocate the 21 dependent tax deduction for each child between the parties as is just and proper and in 22 the child's best interests. The allocation must be consistent with AS 25.24.152 and 23 federal law. 24 Sec. 25.28.300. Definitions. In this chapter, 25 (1) "child support" and "child support obligation" have the meaning 26 given "duty of support" in AS 25.27.900; 27 (2) "divided custody" means that one parent has primary physical 28 custody of one or more children of the relationship and the other parent has primary 29 custody of one or more other children of the relationship, and the parents do not share 30 physical custody of any of their children; 31 (3) "hybrid custody" means that at least one parent has primary
01 physical custody of one or more children of the relationship, and the parents have 02 shared physical custody of at least one child of the relationship; 03 (4) "primary physical custody" or "primary custody" means that a child 04 resides with the other parent for a period, specified in the custody order, of less than 05 30 percent of the year; 06 (5) "shared physical custody" or "shared custody" means that a child 07 resides with one parent for a period, specified in writing in the custody order, of at 08 least 30 percent but not more than 70 percent of the year, regardless of the status of 09 legal custody; 10 (6) "tribunal" means the superior court or the child support services 11 agency created in AS 25.27.010. 12 * Sec. 2. AS 47.10.120(a) is amended to read: 13 (a) When a child in need of aid is committed under this chapter, the court or 14 the child support services agency created in AS 25.27.010 shall, after giving the parent 15 a reasonable opportunity to be heard, require that the parent pay to the department in a 16 manner that the court or the child support services agency directs a sum to cover in 17 full or in part the maintenance and care of the child. The support obligation shall be 18 calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL 19 PROCEDURE]. 20 * Sec. 3. AS 47.12.230(a) is amended to read: 21 (a) When a delinquent minor is committed under this chapter, the court or the 22 child support services agency created in AS 25.27.010 shall, after giving the parent a 23 reasonable opportunity to be heard, require that the parent pay to the department in a 24 manner that the court or the child support services agency directs a sum to cover in 25 full or in part the maintenance and care of the minor. The support obligation shall be 26 calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL 27 PROCEDURE]. 28 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 REPEAL OF COURT RULE. Rule 90.3, Alaska Rules of Civil Procedure, is repealed. 31 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 NONAPPLICABILITY OF TWO-THIRDS VOTE REQUIREMENT. Because the 03 rule repealed in sec. 4 of this Act is a substantive rule rather than a rule of practice or 04 procedure, the repeal of the rule takes effect even if sec. 4 of this Act does not receive the 05 two-thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of 06 Alaska.