sb382_LC_29_2410S_hss

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06 LC 29 2410S

The House Committee on Judiciary offers the following substitute to SB 382:

A BILL TO BE ENTITLED
AN ACT

To amend Titles 5, 7, and 19 of the Official Code of Georgia Annotated, relating respectively to appeal and error, banking and finance, and domestic relations, so as to change provisions relating to the calculation of child support; to clarify the appeal process in certain domestic relations cases; to clarify the calculation of the amount of interest on arrearage of child support; to clarify definitions; to provide guidelines for determining the amount of child support to be paid; to change provisions relating to guidelines for calculating child support; to reorganize Code Section 19-6-15, relating to guidelines for calculating child support, to provide more clarity on the application of such child support; to allow a jury to determine deviations; to provide calculation of parenting time; to provide for definitions; to provide for headings to better structure the Code section; to provide for the Child Support Obligation Table; to change certain provisions relating to the duties of the Georgia Child Support Commission; to correct cross-references; to provide for related matters; to provide for applicability and an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 5 of the Official Code of Georgia Annotated, relating to appeal and error, is amended by striking subsection (a) of Code Section 5-6-34, relating to judgments and rulings deemed directly appealable, and inserting in lieu thereof the following:

"5-6-34.

(a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35;

(2) All judgments involving applications for discharge in bail trover and contempt cases;

(3) All judgments or orders directing that an accounting be had;

(4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions;

(5) All judgments or orders granting or refusing applications for attachment against fraudulent debtors;

(5.1) Any ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-184;

(6) All judgments or orders granting or refusing to grant mandamus or any other extraordinary remedy, except with respect to temporary restraining orders;

(7) All judgments or orders refusing applications for dissolution of corporations created by the superior courts; and

(8) All judgments or orders sustaining motions to dismiss a caveat to the probate of a will; and

(9) All final judgments of child support."

SECTION 2.

Title 7 of the Official Code of Georgia Annotated, relating to banking and finance, is amended by striking in its entirety Code Section 7-4-12.1, relating to interest on arrearage of child support, and inserting in lieu thereof the following:

"7-4-12.1.

(a) All awards of child support expressed in monetary amounts shall accrue interest at the rate of 7 percent per annum commencing 30 days from the day such award or payment is due. This Code section shall apply to all awards, court orders, decrees, and judgments rendered pursuant to Title 19. It shall not be necessary for the party to whom the child support is due to reduce any such award to judgment in order to recover such interest. The court shall have discretion in applying or waiving past due interest. In determining whether to apply, waive, or reduce the amount of interest owed, the Court shall consider whether:

(1) Good cause existed for the nonpayment of the child support;

(2) Payment of the interest would result in substantial and unreasonable hardship for the parent owing the interest;

(3) Applying, waiving, or reducing the interest would enhance or detract from the parent́s current ability to pay child support, including the consideration of the regularity of payments made for current child support of those dependents for whom support is owed; and

(4) The waiver or reduction of interest would result in substantial and unreasonable hardship to the parent to whom interest is owed.

(b) This Code section shall not be construed to abrogate the authority of a IV-D agency to waive, reduce, or negotiate a settlement of unreimbursed public assistance in accordance with subsection (b) of Code Section 19-11-5."

SECTION 3.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by striking subsection (c) of Code Section 19-5-12, relating to form of judgment and decree in divorce actions, and inserting in lieu thereof a new subsection (c) to read as follows:

"(c) In any case which involves the determination of child support, the form of the judgment shall also include provisions indicating both partieś incomes parentś income, the number of children for which support is being provided, the presumptive amount of child support award calculation, and, if the presumptive award amount of child support is rebutted, the award amount and the basis for the rebuttal award. The final judgment shall have attached to it the child support worksheet containing the calculation of the final award of child support and Schedule E pertaining to deviations. The final judgment shall specify a sum certain amount of child support to be paid."

SECTION 4.

Said title is further amended by striking in its entirety Code Section 19-6-15, relating to guidelines for calculating child support, and inserting in lieu thereof a new Code Section 19-6-15 to read as follows:

"19-6-15.

(a) Definitions. As used in this Code section, the term:

(1) 'Adjusted Child Support Obligation' means the Basic Child Support Obligation adjusted by the Parenting Time Adjustment, if applicable, Health Insurance, and Work Related Child Care Costs.

(2) 'Adjusted Income' means the determination of a Parent́s income, calculated by deducting from that Parent́s Gross Income one-half of the amount of any applicable self-employment taxes being paid by the Parent, any Preexisting Order for current child support which is being paid by the Parent, and any Theoretical Child Support Order for other Qualified Children, if allowed by the Court. For further reference see paragraph (5) of subsection (f) of this Code section.

(3) 'Basic Child Support Obligation' means the amount of support displayed on the Child Support Obligation Table which corresponds to the Combined Adjusted Income of the Custodial Parent and the Noncustodial Parent and the number of children for whom child support is being determined. This amount is rebuttably presumed to be the appropriate amount of child support to be provided by the Custodial Parent and the Noncustodial Parent prior to consideration of percentage of income, Parenting Time Adjustments, Health Insurance, Work Related Child Care Costs, and Deviations.

(4) 'Child' means child or children.

(5) 'Child Support Enforcement Agency' means the Child Support Enforcement Agency within the Department of Human Resources.

(6) 'Child Support Obligation Table' means the chart which displays the dollar amount of the Basic Child Support Obligation corresponding to various levels of Combined Adjusted Income of the childreńs Parents and the number of children for whom a child support order is being established or modified. The Child Support Obligation Table shall be used to calculate the Basic Child Support Obligation according to the provisions of this Code section. For further reference see subsections (n) and (o) of this Code section.

(7) 'Combined Adjusted Income' means the amount of Adjusted Income of the Custodial Parent added to the amount of Adjusted Income of the Noncustodial Parent.

(8) 'Court' means a judge of any Court of record or an administrative law judge of the Office of State Administrative Hearings.

(9) 'Custodial Parent' means the Parent with whom the Child resides more than 50 percent of the time. Where a Custodial Parent has not been designated or where a Child resides with both Parents an equal amount of time, the Court shall designate the Custodial Parent as the Parent with the lesser support obligation and the other Parent as the Noncustodial Parent. Where the Child resides equally with both Parents and neither Parent can be determined as owing a greater amount than the other, the Court shall determine which Parent to designate as the Custodial Parent for the purpose of this Code section.

(10) 'Deviation' means an increase or decrease from the Presumptive Amount of Child Support if the presumed order is rebutted by evidence and the required findings of fact are made by the Court pursuant to subsection (i) of this Code section.

(11) 'Final Child Support Order' means the Presumptive Amount of Child Support adjusted by any Deviations.

(12) 'Gross Income' means all income to be included in the calculation of child support as set forth in subsection (f) of this Code section.

(13) 'Health Insurance' means any general health or medical policy. For further reference see paragraph (2) of subsection (h) of this Code section.

(14) 'Noncustodial Parent' means the Parent with whom the Child resides less than 50 percent of the time or the Parent who has the greater payment obligation for child support. Where the Child resides equally with both Parents and neither Parent can be determined as owing a lesser amount than the other, the Court shall determine which Parent to designate as the Noncustodial Parent for the purpose of this Code section.

(15) 'Nonparent Custodian' means an individual who has been granted legal custody of a Child, or an individual who has a legal right to seek, modify, or enforce a child support order.

(16) 'Parent' means a person who owes a Child a duty of support pursuant to Code Section 19-7-2.

(17) 'Parenting Time Adjustment' means an adjustment to the Noncustodial Parent́s portion of the Basic Child Support Obligation based upon the Noncustodial Parent́s court ordered visitation with the Child. For further reference see subsection (g) of this Code section.

(18) 'Preexisting Order' means:

(A) An order in another case that requires a Parent to make child support payments for another Child, which child support the Parent is actually paying, as evidenced by documentation as provided in division (f)(5)(B)(iii) of this Code section; and

(B) That the date of filing of the initial order for each such other case is earlier than the date of filing of the initial order in the case immediately before the Court, regardless of the age of any Child in any of the cases.

(19) 'Presumptive Amount of Child Support' means the Basic Child Support Obligation and the Parenting Time Adjustment, if applicable, Health Insurance, and Work Related Child Care Costs.

(20) A 'Qualified Child' or 'Qualified Children' means any Child:

(A) For whom the Parent is legally responsible and in whose home the Child resides; (B) That the Parent is actually supporting;

(D) Who is not before the Court to set, modify, or enforce support in the case immediately under consideration.

Qualified Children shall not include stepchildren or other minors in the home that the Parent has no legal obligation to support.

(21) 'Split Parenting' can occur in a child support case only if there are two or more children of the same Parents, where one Parent is the Custodial Parent for at least one Child of the Parents, and the other Parent is the Custodial Parent for at least one other Child of the Parents. In a Split Parenting case, each Parent is the Custodial Parent of any Child spending more than 50 percent of the time with that Parent and is the Noncustodial Parent of any Child spending more than 50 percent of the time with the other Parent. A Split Parenting situation shall have two Custodial Parents and two Noncustodial Parents, but no Child shall have more than one Custodial Parent or Noncustodial Parent.

(22) 'Theoretical Child Support Order' means a hypothetical child support order for Qualified Children calculated as set forth in subparagraph (f)(5)(C) of this Code section which allows the Court to determine the amount of child support as if a child support order existed.

(23) 'Uninsured Health Care Expenses' means a Child́s uninsured medical expenses including, but not limited to, Health Insurance copayments, deductibles, and such other costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any acute or chronic medical or health problem or mental health illness, including counseling and other medical or mental health expenses, that are not covered by insurance. For further reference see paragraph (3) of subsection (h) of this Code section.

(24) 'Work Related Child Care Costs' means expenses for the care of the Child for whom support is being determined which are due to employment of either Parent. In an appropriate case, the Court may consider the child care costs associated with a Parent́s job search or the training or education of a Parent necessary to obtain a job or enhance earning potential, not to exceed a reasonable time as determined by the Court, if the Parent proves by a preponderance of the evidence that the job search, job training, or education will benefit the Child being supported. The term shall be projected for the next consecutive 12 months and averaged to obtain a monthly amount. For further reference see paragraph (1) of subsection (h) of this Code section.

(25) 'Worksheet' or 'Child Support Worksheet' means the Worksheet used to record information necessary to determine and calculate child support. In Child Support Enforcement Agency cases in which neither Parent prepared a Worksheet, the Court may rely solely on the Worksheet prepared by the Child Support Enforcement Agency as a basis for its order. For further reference see subsection (m) of this Code section.

(b) Process of calculating child support. Pursuant to this Code section, the determination of child support shall be calculated as follows:

(1) Determine the Gross Income of both the Custodial Parent and the Noncustodial Parent. This may include imputed income, if applicable. The determination of Gross Income shall be entered on the Child Support Schedule A – Gross Income;

(2) Adjust each Parent́s Gross Income by deducting the following from the Parentś Gross Income, and entering it on the Child Support Schedule B – Adjusted Income if any of the following apply:

(A) One-half of the amount of self-employment taxes;

(B) Preexisting Orders; and

(3) Add each Parent́s Adjusted Income together to compute the Combined Adjusted Income;

(4) Locate the Basic Child Support Obligation by referring to the Child Support Obligation Table. Using the figure closest to the amount of the Combined Adjusted Income, locate the monthly amount of the Basic Child Support Obligation in the column underneath the number of children for whom support is being determined. If the monthly Combined Adjusted Income falls between the amounts shown in the table, then the Basic Child Support Obligation shall be based on the income bracket most closely matched to the monthly Combined Adjusted Income;

(5) Calculate the pro rata share of the Basic Child Support Obligation for the Custodial Parent and the Noncustodial Parent by dividing the Combined Adjusted Income into each Parent́s Adjusted Income to arrive at each Parent́s pro rata percentage of the Basic Child Support Obligation;

(6) Make the Parenting Time Adjustment, if applicable, to the Basic Child Support Obligation based upon the calculation of the Noncustodial Parent́s court ordered visitation with the Child. The Parenting Time Adjustment shall be entered on the Child Support Schedule C – Parenting Time Adjustment;

(7) Find the Adjusted Child Support Obligation amount by adding the additional expenses of the costs of Health Insurance and Work Related Child Care Costs, prorating such expenses in accordance with each Parent́s pro rata share of the obligation and adding such expenses to the pro rata share of the obligation. The monthly cost of health insurance premiums and Work Related Child Care Costs shall be entered on the Child Support Schedule D – Additional Expenses. The pro rata share of the Basic Child Support Obligation and the pro rata share of the combined additional expenses shall be added together to create the Adjusted Child Support Obligation;

(8) Determine the Presumptive Amount of Child Support for the Custodial Parent and the Noncustodial Parent resulting in a sum certain single payment due to the Custodial Parent by assigning or deducting credit for actual payments for Health Insurance and Work Related Child Care Costs;

(9) In accordance with subsection (i) of this Code section, deviations subtracted from or increased to the Presumptive Amount of Child Support are applied, if applicable, and if supported by the required findings of fact and application of the best interest of the child standard. The proposed Deviations shall be entered on the Child Support Schedule E – Deviations. In the Court́s or the jurýs discretion, Deviations may include, but are not limited to, the following:

(A) High income;

(B) Low income;

(D) Child and dependent care tax credit;

(E) Travel expenses;

(F) Alimony;

(G) Mortgage;

(H) Permanency plan or foster care plan;

(I) Extraordinary expenses; and

(J) Nonspecific deviations;

(10) The Final Child Support Order shall be the Presumptive Amount of Child Support as increased or decreased by Deviations. The final child support amount for each Parent shall be entered on the Child Support Worksheet, together with the information from each of the utilized schedules;

(11) In addition, the Parents shall allocate the Uninsured Health Care Expenses which shall be based on the pro rata responsibility of the Parents or as otherwise ordered by the Court. Each Parent́s pro rata responsibility for Uninsured Health Care Expenses shall be entered on the Child Support Worksheet; and

(12) In a Split Parenting case, there shall be a separate calculation and Final Child Support Order for each Parent.

(1) The child support guidelines contained in this Code section are a minimum basis for determining the amount of child support and shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a Parent. This Code section shall be used when the Court enters a temporary or permanent child support order in a contested or noncontested hearing. The rebuttable Presumptive Amount of Child Support provided by this Code section may be increased according to the best interest of the Child for whom support is being considered, the circumstances of the parties, the grounds for Deviation set forth in subsection (i) of this Code section, and to achieve the state policy of affording to children of unmarried Parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of Parents with similar financial means.

(2) The provisions of this Code section shall not apply with respect to any divorce case in which there are no minor children, except to the limited extent authorized by subsection (e) of this Code section. In the final judgment or decree in a divorce case in which there are minor children, or in other cases which are governed by the provisions of this Code section, the Court shall:

(A) Specify in what sum certain amount and from which Parent the Child is entitled to permanent support as determined by use of the Worksheet;

(B) Specify as required by Code Section 19-5-12 in what manner, how often, to whom, and until when the support shall be paid;

(D) Determine whether Health Insurance for the Child involved is reasonably available at a reasonable cost to either Parent. If the Health Insurance is reasonably available at a reasonable cost to the Parent, then the Court may order that the Child be covered under such Health Insurance;

(E) Include written findings of fact as to whether one or more of the Deviations allowed under this Code section are applicable, and if one or more such Deviations are applicable as determined by the Court or the jury, the written findings of fact shall further set forth:

(i) The reasons the Court or the jury deviated from the Presumptive Amount of Child Support;

(ii) The amount of child support that would have been required under this Code section if the Presumptive Amount of Child Support had not been rebutted; and

(iii) A finding that states how the Court́s or the jurýs application of the child support guidelines would be unjust or inappropriate considering the relative ability of each Parent to provide support and how the best interest of the Child who is subject to the child support determination is served by Deviation from the Presumptive Amount of Child Support;

(F) Specify the amount of the Noncustodial Parent́s Parenting Time Units as set forth in the order of visitation; and

(G) Specify the percentage of Uninsured Health Care Expenses for which each Parent shall be responsible.

(3) When child support is ordered, the party who is required to pay the child support shall not be liable to third persons for necessaries furnished to the Child embraced in the judgment or decree. In all cases, the parties shall submit to the Court their Worksheets and schedules and the presence or absence of other factors to be considered by the Court pursuant to the provisions of this Code section.

(4) In any case in which the Gross Income of the Custodial Parent and the Noncustodial Parent is determined by a jury, the Court shall charge the provisions of this Code section applicable to the determination of Gross Income. The jury shall be required to return a special interrogatory determining Gross Income. Based upon the jurýs verdict as to Gross Income, the Court shall determine the Presumptive Amount of Child Support in accordance with the provisions of this Code section. The Court shall inform the jury of the Presumptive Amount of Child Support and the identity of the Custodial and Noncustodial Parents. In the final instructions to the jury, the Court shall charge the provisions of this Code section applicable to the determination of Deviations and the jury shall be required to return a special interrogatory as to Deviations and the final award of child support. The Court shall include its findings and the jurýs verdict on the Child Support Worksheet in accordance with this Code section and Code Section 19-5-12.

(5) Nothing contained within this Code section shall prevent the parties from entering into an enforceable agreement contrary to the Presumptive Amount of Child Support which may be made the order of the Court pursuant to review by the Court of the adequacy of the child support amounts negotiated by the parties, including the provision for medical expenses and Health Insurance; provided, however, that if the agreement negotiated by the parties does not comply with the provisions contained in this Code section and does not contain findings of fact as required to support a Deviation, the Court shall reject such agreement.

(6) In any case filed pursuant to Chapter 11 of this title, relating to the 'Child Support Recovery Act,' the 'Uniform Reciprocal Enforcement of Support Act,' or the 'Uniform Interstate Family Support Act,' the Court shall make all determinations of fact, including Gross Income and Deviations, and a jury shall not hear any issue related to such cases.

(d) Nature of guidelines; Court́s discretion. In the event of a hearing or trial on the issue of child support, the guidelines enumerated in this Code section are intended by the General Assembly to be guidelines only and any Court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of the hearing or trial.

(e) Duration of child support responsibility. The duty to provide support for a minor Child shall continue until the Child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs; provided, however, that, in any temporary, final, or modified order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity entered on or after July 1, 1992, the Court, in the exercise of sound discretion, may direct either or both Parents to provide financial assistance to a Child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a Child attains 20 years of age. The provisions for child support provided in this subsection may be enforced by either Parent, by any Nonparent Custodian, by a guardian appointed to receive child support for the Child for whose benefit the child support is ordered, or by the Child for whose benefit the child support is ordered.

(f) Gross Income.

(1) INCLUSION TO GROSS INCOME.

(A) ATTRIBUTABLE INCOME. Gross Income of each Parent shall be determined in the process of setting the Presumptive Amount of Child Support and shall include all income from any source, before deductions for taxes and other deductions such as Preexisting Orders for child support and credits for other Qualified Children, whether earned or unearned, and includes, but is not limited to, the following:

(i) Salaries;

(ii) Commissions, fees, and tips;

(iii) Income from self-employment;

(iv) Bonuses;

(v) Overtime payments;

(vi) Severance pay;

(vii) Recurring income from pensions or retirement plans including, but not limited to, Veteranś Administration, Railroad Retirement Board, Keoghs, and individual retirement accounts;

(viii) Interest income;

(ix) Dividend income;

(x) Trust income;

(xi) Income from annuities;

(xii) Capital gains;

(xiii) Disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the federal Social Security Act;

(xiv) Workerś compensation benefits, whether temporary or permanent;

(xv) Unemployment insurance benefits;

(xvi) Judgments recovered for personal injuries and awards from other civil actions;

(xvii) Gifts that consist of cash or other liquid instruments, or which can be converted to cash;

(xviii) Prizes;

(xix) Lottery winnings;

(xx) Alimony or maintenance received from persons other than parties to the proceeding before the Court; and

(xxi) Assets which are used for the support of the family.

(B) SELF-EMPLOYMENT INCOME. Income from self-employment includes income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operations. Ordinary and reasonable expenses of self-employment or business operations necessary to produce income do not include:

(i) Excessive promotional, travel, vehicle, or personal living expenses, depreciation on equipment, or costs of operation of home offices; or

(ii) Amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the Court or the jury to be inappropriate for determining Gross Income.

In general, income and expenses from self-employment or operation of a business should be carefully reviewed by the Court or the jury to determine an appropriate level of Gross Income available to the Parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.

(C) FRINGE BENEFITS. Fringe benefits for inclusion as income or 'in kind' remuneration received by a Parent in the course of employment, or operation of a trade or business, shall be counted as income if the benefits significantly reduce personal living expenses. Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board. Basic allowance for housing and subsistence and variable housing allowances for members of the armed services shall be considered income for the purposes of determining child support. Fringe benefits do not include employee benefits that are typically added to the salary, wage, or other compensation that a Parent may receive as a standard added benefit, including, but not limited to, employer paid portions of Health Insurance premiums or employer contributions to a retirement or pension plan.

(D) VARIABLE INCOME. Variable income such as commissions, bonuses, overtime pay, and dividends shall be averaged by the Court or the jury over a reasonable period of time consistent with the circumstances of the case and added to a Parent́s fixed salary or wages to determine Gross Income. When income is received on an irregular, nonrecurring, or one-time basis, the Court or the jury may, but is not required to, average or prorate the income over a reasonable specified period of time or require the Parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that Parent.

(2) EXCLUSIONS FROM GROSS INCOME. Excluded from Gross Income are the following:

(A) Child support payments received by either Parent for the benefit of a Child of another relationship;

(B) Benefits received from means-tested public assistance programs such as, but not limited to:

(i) PeachCare for Kids Program, temporary assistance for needy families, or similar programs in other states or territories under Title IV-A of the federal Social Security Act;

(ii) Food stamps or the value of food assistance provided by way of electronic benefits transfer procedures by the Department of Human Resources;

(iii) Supplemental security income received under Title XVI of the federal Social Security Act;

(iv) Benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers; and

(v) Low income heating and energy assistance program payments; and

(3) SOCIAL SECURITY BENEFITS.

(A) Benefits received under Title II of the federal Social Security Act by a Child on the obligoŕs account shall be counted as child support payments and shall be applied against the Final Child Support Order to be paid by the obligor for the Child.

(B) After calculating the obligoŕs Gross Income, including the countable Social Security benefits as specified in division (1)(A)(xiii) of this subsection, and after calculating the amount of child support, if the Presumptive Amount of Child Support is greater than the Social Security benefits paid on behalf of the Child on the obligoŕs account, the obligor shall be required to pay the amount exceeding the Social Security benefit as part of the Final Child Support Order in the case.

(C) After calculating the obligoŕs Gross Income, including the countable Social Security benefits as specified in division (1)(A)(xiii) of this subsection, and after calculating the amount of child support, if the Presumptive Amount of Child Support is equal to or less than the Social Security benefits paid to the Nonparent Custodian or Custodial Parent on behalf of the Child on the obligoŕs account, the child support responsibility of that Parent is met and no further child support shall be paid.

(D) Any benefit amounts under Title II of the federal Social Security Act as determined by the Social Security Administration sent to the Nonparent Custodian or Custodial Parent by the Social Security Administration for the Child́s benefit which are greater than the Final Child Support Order shall be retained by the Nonparent Custodian or Custodial Parent for the Child́s benefit and shall not be used as a reason for decreasing the Final Child Support Order or reducing arrearages.

(E) The Court shall make a written finding of fact in the Final Child Support Order regarding the use of Social Security benefits in the calculation of the child support.

(4) RELIABLE EVIDENCE OF INCOME.

(A) IMPUTED INCOME. When establishing the amount of child support, if a Parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the Court or the jury has no other reliable evidence of the Parent́s income or income potential, Gross Income for the current year shall be determined by imputing Gross Income based on a 40 hour workweek at minimum wage.

(B) MODIFICATION. When cases with established orders are reviewed for modification and a Parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the Court has no other reliable evidence of that Parent́s income or income potential, the Court may enter an order to increase the child support of the Parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of that Parent́s pro rata share of the Basic Child Support Obligation for each year since the Final Child Support Order was entered or last modified.

(C) REHEARING. If income is imputed pursuant to subparagraph (A) of this paragraph, the party believing the income of the other party is higher than the amount imputed may provide within 90 days, upon motion to the Court, evidence necessary to determine the appropriate amount of child support based upon reliable evidence. A hearing shall be scheduled after the motion is filed. The Court may increase, decrease, or the amount of current child support may remain the same from the date of filing of either Parent́s initial filing or motion for reconsideration. While the motion for reconsideration is pending, the obligor shall be responsible for the amount of child support originally ordered. Arrearages entered in the original child support order based upon imputed income shall not be forgiven. When there is reliable evidence to support a motion for reconsideration of the amount of income imputed, the party shall not be required to demonstrate the existence of a significant variance or other such factors required for modification of an order pursuant to subsection (k) of this Code section.

(D) WILLFUL OR VOLUNTARY UNEMPLOYMENT OR UNDEREMPLOYMENT. In determining whether a Parent is willfully or voluntarily unemployed or underemployed, the Court or the jury shall ascertain the reasons for the Parent́s occupational choices and assess the reasonableness of these choices in light of the Parent́s responsibility to support his or her Child and whether such choices benefit the Child. A determination of willful or voluntary unemployment or underemployment shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a Parent́s income. In determining willful or voluntary unemployment or underemployment, the Court may examine whether there is a substantial likelihood that the Parent could, with reasonable effort, apply his or her education, skills, or training to produce income. Specific factors for the Court to consider when determining willful or voluntary unemployment or underemployment include, but are not limited to:

(i) The Parent́s past and present employment;

(ii) The Parent́s education and training;

(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the Parent́s responsibility to support his or her Child and, to this end, whether the training or education may ultimately benefit the Child in the case immediately under consideration by increasing the Parent́s level of support for that Child in the future;

(iv) A Parent́s ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the Parent;

(v) The Parent́s own health and ability to work outside the home; and

(vi) The Parent́s role as caretaker of a Child of that Parent, a disabled or seriously ill Child of that Parent, or a disabled or seriously ill adult Child of that Parent, or any other disabled or seriously ill relative for whom that Parent has assumed the role of caretaker, which eliminates or substantially reduces the Parent́s ability to work outside the home, and the need of that Parent to continue in the role of caretaker in the future. When considering the income potential of a Parent whose work experience is limited due to the caretaker role of that Parent, the Court shall consider the following factors:

(I) Whether the Parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the Parent was a full-time caretaker;

(II) The length of time the Parent staying at home has remained out of the workforce for this purpose;

(III) The Parent́s education, training, and ability to work; and

(IV) Whether the Parent is caring for a Child who is four years of age or younger. If the Court or the jury determines that a Parent is willfully or voluntarily unemployed or underemployed, child support shall be calculated based on a determination of earning capacity, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the Parent pursuant to a determination that Gross Income for the current year is based on a 40 hour workweek at minimum wage. A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.

(5) ADJUSTMENTS TO GROSS INCOME.

(A) SELF-EMPLOYMENT. One-half of the self-employment and Medicare taxes shall be calculated as follows:

(i) Six and one-quarter percent of self-employment income up to the maximum amount to which federal old age, survivors, and disability insurance (OASDI) applies; plus

(ii) One and forty-five one-hundredths of a percent of self-employment income for Medicare

and this amount shall be deducted from a self-employed Parent́s Gross Income.

(B) PREEXISTING ORDERS. An adjustment to the Parent́s Gross Income shall be made on the Child Support Schedule B – Adjusted Income for current Preexisting Orders actually being paid under an order of support for a period of not less than 12 consecutive months immediately prior to the date of the hearing or such period that an order has been in effect if less than 12 months prior to the date of the hearing before the Court to set, modify, or enforce child support.

(i) In calculating the adjustment for Preexisting Orders, the Court shall include only those Preexisting Orders where the date of entry of the initial support order precedes the date of entry of the initial order in the case immediately under consideration;

(ii) The priority for Preexisting Orders shall be determined by the date of the initial order in each case. Subsequent modifications of the initial support order shall not affect the priority position established by the date of the initial order. In any modification proceeding, the Court rendering the decision shall make a specific finding of the date of the initial order of the case;

(iii) Adjustments shall be allowed for current preexisting support only to the extent that the payments are actually being paid as evidenced by documentation including, but not limited to, payment history from a court clerk, a IV-D agency, as defined in Code Section 19-6-31, the Child Support Enforcement Agencýs computer data base, the child support payment history, or canceled checks or other written proof of payments paid directly to the other Parent. The maximum credit allowed for a Preexisting Order is an average of the amount of current support actually paid under the Preexisting Order over the past 12 months prior to the hearing date;

(iv) All Preexisting Orders shall be entered on the Child Support Schedule B – Adjusted Income for the purpose of calculating the total amount of the credit to be included on the Child Support Worksheet; and

(v) Payments being made by a Parent on any arrearages shall not be considered payments on Preexisting Orders or subsequent orders and shall not be used as a basis for reducing Gross Income.

(C) THEORETICAL CHILD SUPPORT ORDERS. In addition to the adjustments to Gross Income for self-employment taxes provided in subparagraph (A) of this paragraph and for Preexisting Orders provided in subparagraph (B) of this paragraph, credits for either Parent́s other Qualified Child living in the Parent́s home for whom the Parent owes a legal duty of support may be considered by the Court for the purpose of reducing the Parent́s Gross Income. To consider a Parent́s other Qualified Children for determining the Theoretical Child Support Order, a Parent shall present documentary evidence of the Parent-Child relationship to the Court. Adjustments to income pursuant to this paragraph may be considered in such circumstances in which the failure to consider a Qualified Child would cause substantial hardship to the Parent. If the Court, in its discretion, decides to apply the Qualified Child adjustment, the Basic Child Support Obligation of the Parent for the number of other Qualified Children living with such Parent shall be determined based upon that Parent́s Gross Income. Except for self-employment taxes paid, no other amounts shall be subtracted from the Parent́s Gross Income when calculating a Theoretical Child Support Order under this subparagraph. The Basic Child Support Obligation for such Parent shall be multiplied by 75 percent and the resulting amount shall be subtracted from such Parent́s Gross Income and entered on the Child Support Schedule B – Adjusted Income.

(D) PRIORITY OF ADJUSTMENTS. In multiple family situations, the adjustments to a Parent́s Gross Income shall be calculated in the following order:

(i) Preexisting Orders according to the date of the initial order; and

(ii) After applying the deductions on the Child Support Schedule B – Adjusted Income for Preexisting Orders, if any, in subparagraph (A) of paragraph (4) of this subsection, any credit for a Parent́s other Qualified Children may be considered using the procedure set forth in subparagraph (B) of this paragraph.

(g) Parenting Time Adjustment.

(1) For purposes of this subsection, the term:

(A) 'Calendar Day' means from 12:00 Midnight to 11:59 P.M.

(B) 'Day' means more than 12 hours of a Calendar Day.

(C) 'Overnight' means the time period, which does not otherwise qualify as a Day, when the Child spends at a minimum from 11:00 P.M. until 5:00 A.M. the following morning with the Noncustodial Parent.

(D) 'Parenting Time Units' means Days or Overnights in which the Child is under the control of a Parent and that Parent expends a reasonable amount of resources on the Child during such time period directly related to the care and supervision of the Child. A Child is under the control of a Parent when the Child is in the Parent́s home or at school, work related day care, or such activity as the Parent expressly permits. In calculating Parenting Time Units, time in the order for visitation shall count as either a Day, if applicable, or an Overnight, if applicable, but not as both a Day and an Overnight.

(2) The Child Support Obligation Table is based upon expenditures for the Child in intact households and therefore there is no consideration for cost associated with court ordered visitation exceeding the standard visitation period with the Noncustodial Parent, which typically includes a minimum of every other weekend from Friday through Sunday, two weeks in the summer, and two weeks during holidays throughout the year, for a total of approximately 80 days per calendar year.

(3)(A) If the Noncustodial Parent is ordered more than 90 Parenting Time Units of court ordered visitation per calendar year with a Child, the Noncustodial Parent shall be entitled to a Parenting Time Adjustment as provided in subparagraph (B) of this paragraph.

(B) Determine the Adjustment Percentage based upon the following schedule:

Number of Parenting Time Units	Adjustment Percentage
91 Parenting Time Units	.030 percent
92 Parenting Time Units	.362 percent
93 Parenting Time Units	.694 percent
94 Parenting Time Units	1.026 percent
95 Parenting Time Units	1.359 percent
96 Parenting Time Units	1.691 percent
97 Parenting Time Units	2.023 percent
98 Parenting Time Units	2.356 percent
99 Parenting Time Units	2.688 percent
100 Parenting Time Units	3.020 percent
101 Parenting Time Units	3.353 percent
102 Parenting Time Units	3.685 percent
103 Parenting Time Units	4.017 percent
104 Parenting Time Units	4.350 percent
105 Parenting Time Units	4.682 percent
106 Parenting Time Units	5.014 percent
107 Parenting Time Units	5.347 percent
108 Parenting Time Units	5.679 percent
109 Parenting Time Units	6.011 percent
110 Parenting Time Units	6.344 percent
111 Parenting Time Units	6.676 percent
112 Parenting Time Units	7.008 percent
113 Parenting Time Units	7.341 percent
114 Parenting Time Units	7.673 percent
115 Parenting Time Units	8.005 percent
116 Parenting Time Units	8.338 percent
117 Parenting Time Units	8.670 percent
118 Parenting Time Units	9.002 percent
119 Parenting Time Units	9.335 percent
120 Parenting Time Units	9.667 percent
121 Parenting Time Units	10.000 percent
122 Parenting Time Units	10.625 percent
123 Parenting Time Units	11.250 percent
124 Parenting Time Units	11.875 percent
125 Parenting Time Units	12.500 percent
126 Parenting Time Units	13.125 percent
127 Parenting Time Units	13.750 percent
128 Parenting Time Units	14.375 percent
129 Parenting Time Units	15.000 percent
130 Parenting Time Units	15.625 percent
131 Parenting Time Units	16.250 percent
132 Parenting Time Units	16.875 percent
133 Parenting Time Units	17.500 percent
134 Parenting Time Units	18.125 percent
135 Parenting Time Units	18.750 percent
136 Parenting Time Units	19.375 percent
137 Parenting Time Units	20.00 percent
138 Parenting Time Units	20.66 percent
139 Parenting Time Units	21.33 percent
140 Parenting Time Units	21.99 percent
141 Parenting Time Units	22.66 percent
142 Parenting Time Units	23.33 percent
143 Parenting Time Units	23.99 percent
144 Parenting Time Units	24.66 percent
145 Parenting Time Units	25.33 percent
146 Parenting Time Units	25.99 percent
147 Parenting Time Units	26.66 percent
148 Parenting Time Units	27.33 percent
149 Parenting Time Units	27.99 percent
150 Parenting Time Units	28.66 percent
151 Parenting Time Units	29.33 percent
152 Parenting Time Units	30.00 percent
153 Parenting Time Units	30.66 percent
154 Parenting Time Units	31.33 percent
155 Parenting Time Units	31.99 percent
156 Parenting Time Units	32.66 percent
157 Parenting Time Units	33.33 percent
158 Parenting Time Units	33.99 percent
159 Parenting Time Units	34.66 percent
160 Parenting Time Units	35.33 percent
161 Parenting Time Units	35.99 percent
162 Parenting Time Units	36.66 percent
163 Parenting Time Units	37.33 percent
164 Parenting Time Units	37.99 percent
165 Parenting Time Units	38.66 percent
166 Parenting Time Units	39.33 percent
167 Parenting Time Units	40.00 percent
168 Parenting Time Units	40.66 percent
169 Parenting Time Units	41.33 percent
170 Parenting Time Units	41.99 percent
171 Parenting Time Units	42.66 percent
172 Parenting Time Units	43.33 percent
173 Parenting Time Units	43.99 percent