Indiana child support - the custodial parent's duty

I think we so seldom consider the custodial parent's duties because they are the ones dealing with the children on a daily basis. Dealing with the children on a daily basis - getting them clothed and fed, dealing with scraped knees and injured egos, giving them advise and discipline - keeps the custodial parent so busy that we do not think much on their duties so long as the custodial parent takes proper care of the children. We attorneys never think to instruct them on how to perform those duties and we never think of informing them about their duties dealing with child support.

That is until we have the custodial parent sitting across our desks and telling you how terrified and angry she is because the non-custodial parent threatens to bring her back to court for how she spends the child support money. Or we have an angry non-custodial parent who thinks the former spouse spends the child support money on anything but the children. My answer to both of them is that money is fungible. That so long as the money is going to things that support the children. Sometimes this explanation ends the matter - the custodial parent has been paying the light bill and not buying new shoes.

However, both the Child Support Guidelines and the Indiana Code allow for the non-custodial parent to find out how the custodial parent spends the money. This is called an accounting. The following is from the Commentary to the Child Support Guidelines.

Accountability of the Custodial Parent for Support Received. Quite commonly noncustodial parents request, or even demand, that the custodial parent provide an accounting for how support money is spent. While recognizing that in some instances an accounting may be justified, the Committee does not recommend that it be routinely used in support orders. The Indiana Legislature apparently recognized that an accounting may sometimes be needed when, in 1985, it passed into law IC 31‑1‑11.5‑13(e), now IC 31‑16‑9‑6.

At the time of entering an order for support, or at any time thereafter, the court may make an order, upon a proper showing of the necessity therefore, requiring the spouse or other person receiving such support payments to render an accounting to the court of future expenditures upon such terms and conditions as the court shall decree.

It is recommended that an accounting be ordered upon a showing of reasonable cause to believe that child support is not being used for the support of the child. However, an order for an accounting should not be made in cases where support received by the custodial parent is $50.00 or less per week. This provision is prospective in application and discretionary with the court. An accounting may not be ordered as to support payments previously paid.

A custodial parent may be able to account for direct costs (clothing, school expenses, music lessons, etc.) but it should be remembered that it is extremely difficult to compile indirect costs (a share of housing, transportation, utilities, food, etc.) with any degree of accuracy. If a court found that a custodial parent was diverting support for his or her own personal use, the remedy is not clear. Perhaps, the scrutiny that comes with an accounting would itself resolve the problem.

The parent wanting the accounting needs evidence of the custodial parent diverting money to their own use. I believe that a non-custodial parent will need to overcome some bias on the part of judges in asking for an accounting. It must never appear that the accounting is sought for purposes of harassing the custodial parent.

I base my belief on both the Commentary above and the language of the following statute:

IC 31-16-9-6
Accounting of future expenditures
31-16-9-6 Sec. 6. At the time of entering an order for support or at any subsequent time, the court may order, upon a proper showing of necessity, the spouse or other person receiving support payments to provide an accounting to the court of future expenditures upon such terms and conditions as the court decrees.
As added by P.L.1-1997, SEC.8.

The statute says "upon a proper showing of necessity." I think the statute means what it says and will not file for an accounting unless the non-custodial parent has evidence of a necessity. I would also suggest that - depending on the facts of the case - that if one can show the non-custodial parent diverts the money for herself that this gives grounds for a custody modification. For example, a world of difference exists between a mother buying her a new purse with the children's money and a non-custodial parent buying crack cocaine with child support money.