THE TYPES OF CUSTODY ALLOWED UNDER WYOMING STATUTE
A PARENT’S FUNDAMENTAL RIGHT TO ASSOCIATE WITH THEIR CHILDREN
WYOMING CHILD SUPPORT
PRESUMPTIVE CHILD SUPPORT
CAN PRESUMPTIVE CHILD SUPPORT BE NEGOTIATED
CAN A PARENT AVOID PAYING CHILD SUPPORT IF THEY HAVE NO VISITATION RIGHTS
HOW A CHILD IS CLAIMED ON TAXES BY THE NON-CUSTODIAL PARENT
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Both Federal and Wyoming State law recognize a parent’s fundamental right to associate with their children. A series of United States Supreme Court cases dealing specifically with a parent’s right to direct their children’s education established this constitutional right. However, these cases are silent regarding differential rights between custodial and noncustodial parents. Wyoming law adopts the constitutional right of parents to associate with their children and goes further to recognize the rights of noncustodial parents. Wyoming statute provides that unless limited by court order, noncustodial parents have a right to access their children’s school and medical records.
Under Wyoming law, three types of custody arrangements are allowed: joint, shared and sole. Joint and shared are not well distinguished though they both include a goal to give nearly equal visitation rights to each parent. The Wyoming Supreme Court disfavors these types of custody arrangements because they hinge on the parents’ ability to communicate effectively. To advocate this custody arrangement, a good reason must be shown. Sole custody is also not defined by statute and instead is described in case law. The definition formulated through cases includes a child remaining mostly with one parent who is fixed with providing and caring for that child.
Child support in Wyoming is calculated using a formula provided by statute. This amount is based upon each parent’s income and number of children they have together. It is presumed to be correct and unless the parties agree to an amount on their own, is likely to be followed by the courts.
Child support can be negotiated between the parties. Wyoming courts favor child support agreements between parties and will uphold them as long as the amount is in the best interest of the child. Also, the parents can agree upon a visitation schedule that allows each parent substantially equal amounts of time with the children. In this case, a joint presumptive amount will be taken from statute. This will be based upon each parent’s individual income and the amount of time the children spends with each parent.
In some cases child support will be adjusted based upon amount of visitation. However, a parent cannot escape his/her obligation to pay child support even if he/she is denied visitation rights. The Court reasons that child support is about providing for the best interest of the child and lack of visitation does not negate this responsibility.
In general, the custodial parent will claim children as dependents on his/her taxes. The exception to this rule occurs if the custodial parent releases his/her claim to any exemptions using a form prescribed by the IRS or a substantially similar statement. If there is a divorce decree or separation agreement between the parties that was established before 1985, the noncustodial parent may use this document to claim a dependent child. Provisions for both exceptions are provided in attachment B.
In today’s society, a large percentage of families are non-nuclear with an increased likelihood children will be born into homes with a single or divorced parent.*1 With this trend of divorce, the issue of non-custodial parental rights has “become a lightning rod for modern family law.” *2
Both federal and state courts have recognized the fundamental rights of parents to associate with their children. This becomes a less defined constitutional protection when the rights are those of non-custodial parents.*3 To illuminate this growing issue, it is instructive to consider first how the rights of parent’s became constitutionally recognized.
According to federal law, parents have a constitutionally protected right to associate with their children.*4 This right was established through several landmark cases decided by the United States Supreme Court which dealt specifically with the right of parents to direct the education of their children.*5 This was added to by the Court’s decision regarding the custody rights of an unwed natural father.*6 Together these cases recognize the rights of natural parents.
In a trio of cases, the United States Supreme Court (U.S.) established that parents have a fundamental right to be involved with their children especially when it concerns the child’s education.*7 In Meyers v. Nebraska, the U.S. addressed arbitrary state action by holding that a parent has a right to engage their children in a full measure of education as they see fit.*8 In that case, a teacher was criminally charged for teaching the German language to a 10 year old in violation of a Nebraska statute.*9 The statute prohibited the instruction of a foreign language to a student who had yet to pass the 8th grade.*10 The U.S. reasoned that this prohibition was without merit because it interfered with a teacher’s ability to teach, a student’s opportunity to acquire knowledge and with the power of parents to control the education of their children.*11
The U.S. continued to articulate a parent’s constitutional rights with the ruling in Pierce v. Society of Sisters.*12 In that case an Oregon law known as the Compulsory Education Act required every parent or guardian of a child 8 to 16 years of age to send their child to a public school, for a specified amount of time determined by the school and in a district where the child resided. Any failure to comply with the law was declared a misdemeanor.*13
The plaintiffs, two non-public schools in Oregon, sought injunctive relief to prevent unlawful interference with their patrons. Plaintiffs argued the Compulsory Education Act, which criminalized parents for taking their children to non-public schools, would result in the destruction of their businesses and conflicted with the right of parents to choose appropriate schools for their children.*14
The U.S. struck down the statute holding it unreasonably interfered with the liberty of parents to direct the upbringing and education of their children. Parents were therefore allowed to choose whether their child attended public or private school.*15 The U.S. emphasized the parent’s right to autonomously make decisions for their children by stating, “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”*16
Forty-seven years after Pierce, the U.S. decided Wisconsin v. Yoder which became an additional case advancing parent’s constitutionally protected rights. In Yoder, the State of Wisconsin convicted members of the Old Order Amish religion and the Conservative Amish Mennonite Church for declining to send their children to public or private school after successfully completing the eighth grade.*17 Building upon the holding in Pierce, the State’s compulsory attendance law required all children to attend school, either public or private, until they reached the age of 16.*18
Respondent’s believed that their children’s attendance at high school was contrary to the Amish religion. Specifically they argued that sending their children to high school would expose them to a curriculum which taught values in stark contrast to their religious beliefs. They argued the compulsory attendance would expose the children and church community to censure while endangering their own salvation and that of their children. The respondent’s provided un-contradicted evidence from scholars in religion and education to support their position.*19
The U.S. considered the issue by balancing the individual’s freedom to exercise their religious beliefs with the State’s interest in regulating the education of their populace.*20 The U.S. found the State failed to show their interest in educating its citizens outweighed the interest of the Amish to practice their religion and educate their children free from governmental interference.*21
Of Meyers, Pierce and Yoder, only Yoder had parents as a party to the action. Despite this, the cases sufficed to recognize the fundamental rights of parents as constitutionally protected under the Fourteenth Amendment.*22 In the same year as Yoder, the Court decided Stanley v. Illinois which built upon the body of law associated with parent’s rights.
In Stanley, the plaintiff was a natural father who lived intermittently with the children’s mother for 18 years though the couple was unwed.*23 The mother passed away and under Illinois law the children became wards of the State without first awarding a hearing to the father to determine his parental rights. The father appealed claiming the State deprived him of equal protection under the law because he had not been shown to be an unfit parent.*24 The State argued that the father could properly be separated from his children because he and the deceased mother had not been married.*25 The State further claimed that only married fathers and mothers were granted equal protection of the laws under the Fourteenth Amendment and therefore they need not show his unfitness as a parent before depriving him of his children.*26
The U.S. determined that the father was entitled to a hearing on his fitness as a parent before his parental rights were vacated.*27 The U.S. held the State had denied the father equal protection of the laws guaranteed by the Fourteenth Amendment when disallowing him a right extended to all other parents whose custody of their children was challenged. In support of this conclusion the U.S. stated:
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The integrity of the family unit has found protection in the Due Process Cause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Ninth Amendment.*28
Significantly, the U.S. further distinguished this rule by adding, “Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony.”*29
In DS v. Department of Public Assistance and Social Services, the Wyoming Supreme Court confirmed that both the Wyoming Constitution and State law protected the fundamental liberty interest individuals had in associating with one’s family.*30 The Court held any infringement upon this liberty would be subject to strict scrutiny.*31 The reason being that “the earliest and most hallowed of the ties that bind humanity, in all countries considered sacred, is the relationship of parent and child.”*32
Whenever a parent’s fundamental right is at issue, the court will review the case using strict scrutiny to balance the fundamental right of a parent to associate with their children against a compelling state interest.*33 An example can be found in Matter of GP. In that case the petitioner was contesting the termination of his parental rights due to abuse and neglect.*34 The Court held that clear and convincing evidence showed the best interest of the children would be served with the termination of the father’s parental rights.*35 Only after utilizing the strict scrutiny test did the Court hold the State’s interest in protecting the children outweighed the father’s fundamentally protected right to access.*36
The Wyoming Supreme Court further distinguished this rule by establishing who can invoke a parent’s fundamental right to access their children. In MBB v. ERW, the petitioner sought rights for liberal visitation of his ex-wife’s son, J.S., who was not the petitioner’s biological child.*37 The petitioner argued that he had a constitutionally protected right to associate with the child because he helped raise J.S. from a small age until he and J.S.’ mother separated, a period of roughly six years.*38
The Court declined to recognize petitioner as a person with fundamental rights to associate with J.S.*39 The Court reasoned that though a parent’s interest and custody of his/her child is a fundamental right, it is not without limits.*40 Outside of a child’s biological or adoptive parent, only two additional classes of persons have been given authority to request visitation: a child’s grandparents under certain circumstances and a child’s primary caregiver.*41 As a result, unless specifically granted by statute, a parent’s fundamental right to direct the upbringing of their children is limited to biological parents.*42
Neither DS. v. Department of Social Services, Matter of GP nor MBB v. ERW speak specifically of cases involving the rights of noncustodial parents. However, Wyoming Statutes Annotated § 20-2-201 provides:
Unless otherwise ordered by the court, the noncustodial parent shall have the same rights of access as the parent awarded custody to any records relating to the child of the parties, including school records, activities, teachers and teacher’s conferences as well as medical and dental treatments providers and mental health records.
Therefore, unless a court proceeding or divorce decree specifically limits it, a noncustodial parent maintains a fundamental right to access their children. This is especially true as it relates to a parent’s ability to access vital information regarding their children’s school performance and health management.
Custody proceedings in Wyoming seek to promote understanding and compliance by parties while upholding what is in the best interests of children.*43
This may include a combination of custody types including joint, shared or sole custody.*44 Wyoming statutes do not define joint, shared or sole custody and instead borrow language from other states and case law.*45
The definition for sole or primary custody can be found in case law.*46 As suggested in Gurney v. Gurney, primary custody means awarding custody to one parent which “fixes that parent as the primary nurturer of the child and the one with whom the child shall reside.”*47
Wyoming’s definition for joint custody comes from Arizona law.*48 The Arizona statute provides:
Joint physical custody means the condition under which the physical residence of the child is shared by the parents in a manner that assures that the child has substantially equal time and contact with both parents.*49
Similarly, shared custody maintains the child should spend equal time with each parent.*50
Whether termed joint or shared custody, absent good reason these types of custody arrangements are disfavored by the Wyoming Supreme Court.*51 The Court reasons there is inherent instability in joint and shared custody arrangements and any success of this arrangement hinges on the ability of the parents to communicate and agree on matters regarding their children’s welfare.*52
To establish a joint or shared custody arrangement there must be an explanation and corresponding evidence which allows the Court an opportunity to comprehensively evaluate the record.*53 Specifically, the Court will decide if the custody arrangement promotes stability in the child’s environment.*54
The fact that both parties may be good parents is not sufficient to support joint or shared custody.*55 Further, a desire to give the child equal time with each parent when the parents cannot effectively communicate does not justify this type of custody arrangement.*56 Rather, the court’s objective when deciding custody issues is “not to reconstruct a family but to provide the framework for a new family that can best serve the children.”*57
The determination of child support includes several aspects including: (i) presumptive child support amount, (ii) how it’s calculated, (iii) whether or not it can be bargained away, (iv) whether the amount can be avoided by a parent who does not receive visitation and (v) how the filing of taxes are affected.
Wyoming statute provides for the amount of child support a parent is responsible for based upon income and number of children between the parties.*58 See Appendix A, Child Support Table for calculations. According to §20-2-307(a), any child support amount provided for in § 20-2-304 is presumed to be correct. Deviation from this established calculation must be accompanied by a finding that the amount would be unjust or inappropriate.*59 In determining whether to deviate from the presumptive amount, the court will consider a variety of factors including:
a. The age of the child;
b. The cost of necessary child care;
c. Any special health care and educational needs of the child;
d. The responsibility of either parent for the support of other children, whether the court ordered or otherwise;
e. The value of services contributed by either parent;
f. Any expenses reasonably related to the mother’s pregnancy and confinement for the child, if the parents were never married or if the parents were divorced prior to the birth of the child;
g. The amount of time the child spends with each parent;
h. Any other necessary expenses for the benefit of the child;
i. Whether either parent is voluntarily unemployed or underemployed. In such case the child support shall be computed based upon the potential earning capacity (imputed income) of the unemployed or underemployed parent. In making that determination the court shall consider:
j. Whether or not either parent has violated any provision of the divorce decree, including visitation provisions, if deemed relevant by the court; and
k. Other factors deemed relevant by the court.*60
The presumptive amount of child support can be adjusted by agreement between the parties.*61 The Court favors these types of child support agreements as long as it is in the child’s best interest.*62 In addition, any modification of divorce decrees establishing child support is appropriate only in limited circumstances. A party seeking to alter an agreement made between the parties must show a material and substantial change in circumstances.*63
In some cases, the presumptive amount can be adjusted based upon the amount of visitation by the parties.*64 If each parent keeps the children overnight for more than forty percent of the year and both parties contribute considerably to the children’s expenses, a joint presumptive support obligation will be used. The joint presumptive amount will be taken from § 20-2-304(a) and divided based upon the parents’ individual net income. The total obligation of each parent will then be multiplied by the percentage of time the children spend with the other parent. This determines the support obligation owed to the other parent.*65
Therefore, the presumptive amount of child support established by statute can be negotiated. First, the parties can mutually agree upon a child support amount. This agreement will be favored by the Courts even when it deviates from statute as long as it is in the child’s best interest. Secondly, the parties can agree upon a visitation schedule which allows both parents a substantially equal amount of time with the children. This agreement renders the parties nearly equally responsible financially for the children. Thereafter, the presumptive amount will be adjusted according to the parties’ individual incomes and then by the amount of time each parent spends with the children.
As described above, child support can be adjusted based upon visitation in certain cases.*66 However, Wyoming case law maintains that lack of visitation does not bar a parent from being obligated to pay child support.*67 In Sharpe, the primary custodial parent denied visitation to the noncustodial parent. The primary custodial parent argued this was not a proper factor to consider when setting amount of child support owed by the noncustodial parent.*68 The Court held the denial of visitation rights did not constitute a change in circumstance warranting reduction in the support obligation of the noncustodial parent.*69 Therefore, a child’s right to child support is not contingent upon visitation rights.*70 As the Court reasoned, “The welfare of the child is a primary concern, and the duty of a noncustodial parent to support his or her child cannot depend on that parent’s opportunity to exercise visitation rights.”*71
When parties divorce or separate they must decide who will claim the children on taxes. Only one parent may claim the dependency exemption for a child in any given tax year.*72 In general, the custodial parent is the parent who had the child a greater number of nights than the noncustodial parent. The custodial parent will claim the exemption for the child. However, there are exceptions to this rule. A noncustodial parent or relative may claim the child if certain conditions are met including:
a. The parents:
b. The child must have received over half of his/her support from the parents
c. The child is in custody of one or both parents for more than half of the year; and
d. The custodial parent signs a Form 8332, Release/Revocation of Release of Claim to Exemption or a substantially similar statement which declares he/she will not claim the child as a dependent. The custodial parent attaches this document to his/her tax return.*73
If the divorce decree or separation agreement was established prior to 1985, the noncustodial parent may use the decree or written agreement in place of Form 8332. See Attachment B, Claiming Dependents by Separated Parents Section IV: Child Support under pre-1985 agreement.
by Ashley Trautman, July 26, 2012
*1 David D. Meyer, The Constitutional Rights of Non-Custodial Parents, 34 Hofstra L. Rev. 1462 (2006).
*2 Id. at 1461.
*3 Id. at 1466.
*4 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).
*5 Meyers v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 627 L. Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L.Ed. 2d 1070 (1925); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972).
*6 Standly, 92 S. Ct. 1208.
*7 Ralph D. Mawdsley, Noncustodial Parent’s Right to Direct the Education of Their Children, 199 Ed. Law Rep. 545 (2005).
*8 262 U.S. 390, 400, 43 S. Ct. 625, 627 L. Ed. 1042 (1923).
*9 Id. at 396, 43 S. Ct. at 626.
*10 Id. at 397, 43 S. Ct. at 626.
*11 Id. at 400, 43 S. Ct. at 627.
*12 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 2d 1070 (1925)
*13 Id. at 530, 45 S. Ct. at 572.
*14 Id. at 532, 45 S. Ct. at 572-573.
*15 Id. at 534, 45 S. Ct. at 573.
*16 Id. at 535, 45 S. Ct. at 573.
*17 406 U.S. 205, 92 S. Ct. 1526 (1972).
*18 Id. at 208, 92 S. Ct 1529.
*19 Id. at 209, 92 S. Ct. 1530.
*20 Id. at 214, 92 S. Ct. 1532.
*21 Id. at 234, 92 S. Ct. 1542.
*22 Mawdsley, 199 Ed. Law Rep at 558.
*23 92 S. Ct 1208 at 1210.
*25 Id. at 647, 92 S. Ct. 1209.
*27 Id. at 649, 92 S. Ct. 1211.
*28 Id. at 651, 92 S. Ct. 1213.
*31 Id. at 918.
*32 Id. at 919.
*33 Matter of GP, 679 P.2d 976, 982.
*34 Id. at 979.
*35 Id. at 1008.
*37 2004 WY 134, 100 P.3d 415 (Wyo. 2004).
*38 Id. at ¶ 3, 100 P.3d 415, 417.
*39 Id. at ¶ 14, 100 P.3d 415, 420.
*40 Id. at ¶ 10, 100 P.3d 415, 419.
*41 Id. at ¶ 11, 100 P.3d 415, 419.
*42 Id. at ¶ 12, 100 P.3d 415, 419.
*43 Wyo. Stat. Ann. § 20-2-201(d) (West, WL current through 2012 budget session).
*45 Testerman v. Testerman, 2008 WY 112, ¶ 13, 192 P.3d 1141, 1145 (Wyo. 2008).
*46 Gurney v. Gurney, 899 P. 2d 52, 54.
*47 899 P.2d 52, 54.
*48 Id. at ¶ 14, 192 P.3d 1141, 1145.
*49 Ariz. Rev. Stat. Ann. § 25-402.
*50 Buttle v. Buttle ,2008 WY 135, ¶ 12, 196 P.3d 174, 177.
*51 Testerman, Id. at ¶ 15, 192 P.3d 1141, 1145.
*53 Buttle, ¶ 32, 196 P.3d 174, 181.
*54 Id. at ¶ 36, 196 P.3d 174, 182.
*55 Id. at ¶ 38, 196 P.3d 174, 183.
*56 Id. at ¶ 43, 196 P.3d 174, 184.
*58 Wyo. Stat. Ann. § 20-2-304 (West, WL current through 2012 budget session).
*59 § 20-2-307(b).
*60 § 20-2-307(b).
*61 Smith v. Smith, 895 P.2d 37, 38 (1995).
*62 Sharpe v. Sharpe, 902 P.2d 210, 214 (1995).
*63 Smith, 895 P.2d at 41.
*64 § 20-2-304(c).
*65 § 20-2-304(c).
*66 § 20-2-304(c).
*67 Sharpe, 902 P.2d 210 at 216.
*68 Id. at 215.
*69 Id. at 216.
*70 Id. at 215.
*71 Id. at 216.
*72 Dependents and Exemptions, http://www.irs.gov/publications/p504/ar02.html