Wirth Law Exposé Led to End of Oklahoma Parenting Time Penalty

DHS Penalty Went Unfixed for 5 Years

UPDATE: In Dec. 2015, an Oklahoma City court determined DHS had overcharged interest on lump sum child support obligations some parents accrued before child support orders were issued. Find out why a court said DHS miscalculated interest on back child support here.

You might think it would be a no-brainer. Starting Nov. 1, 2015, Oklahoma’s Department of Human Services Child Support Services may no longer systematically penalize non-custodial parents for spending time with their children.

Gov. Mary Fallin has signed into law a bill that clarifies a parenting time adjustment used in Oklahoma child support calculations. Oklahoma DHS had claimed that law required them to compute increased child support for some parents who spend additional time with their children.

The reform stemmed from a Wirth Law Office investigation. In October, 2014, we posted on our Website a three-part series that explained how the bizarre parenting penalty had found its way into Oklahoma family law. We provided a calculator to demonstrate the income ranges and number of overnight stays that could trigger the parenting time penalty.

We said Oklahoma can do better. We were right. Oklahoma fixed it.

The legislature found out about the problem when editor Barry Thompson republished our blog post on the front page of his family’s weekly newspaper – the Morris News.

“I had read that article that you all had sent us,” Morris said. “As a divorced father myself I thought that’s just not right that DHS is doing that to fathers.”

Thomas then contacted his local legislator, Rep. Jerry Shoemake of District 16.

Morris forwarded to Shoemake the article about the parenting time penalty. Shoemake contacted a DHS attorney, who told him it would take a change of law to stop the state child support agency’s systematic computation of the parenting penalty. DHS staff helped him draft the required revision.

“I thought we were supposed to encourage family visitation, not discourage it,” Shoemake told Wirth Law Office. “It seemed to me that is what it looked like we were doing.”

The change restored one simple statement to the Okla. Stat. tit. 43 118E(B)(5):

“In no event shall the amount of child support ordered to be paid by a parent exceed the amount which would otherwise be ordered if the parent was not eligible for the parenting time adjustment.

On the House floor, Shoemake told fellow legislators his bill to shut down the parenting time penalty had the blessing to the Department of Human Services. Both sides of the legislature unanimously passed the bill.

Legislature Never Meant to Penalize Parents

If you wonder how such a bizarre policy came to be accepted as law in Oklahoma, you are not alone. We wondered the same thing. It was never the legislature’s intention to penalize parents for spending time with children, we discovered.

Oklahoma lawmakers had previously adopted a parenting time adjustment to reduce child support obligations in proportion to the time non-custodial parents spend with their children. The legislature provided a formula to balance each parents income, overnights and child support obligations.

The formula worked as intended, except for non-custodial parents who earned twice as much as a custodial parent and were assigned between 121 and 143 overnights a year for parenting time. In those cases, the formula returned a number larger than the base child support for which the non-custodial parent would otherwise be obligated.

Obviously – one would think – the legislature intended the formula to set an upper threshold for the parenting time adjustment, not a penalty that would discourage non-custodial parents from asking for more time with a child.

In 2009, lawmakers adjusted the formula. As part of that bill, they dropped a seemingly unnecessary line from the statute that stated the obvious – the parenting time adjustment cannot be used to increase child support obligations for parents who spend time with children.

DHS did not see it that way. The law is the law, argued a nameless bureaucrat. If the formula in the law books seems to say it shall be calculated as an increase, it is calculated as an increase, regardless of what else the law suggests, DHS insisted.

Our online effort to explain rules of statutory construction did not persuade DHS. We hoped that our effort to explain the problem to the public would get better results — without wasting taxpayers’ money and a court’s time to tell DHS exactly what the legislature had intended.

As we had anticipated might happen, the people of Oklahoma stepped up and got it right. They restored the line in Oklahoma law that said the parenting time adjustment is never to be used as a parenting penalty.

We appreciate the efforts of Mr. Morris, Rep. Shoemake, the legislature, DHS staff and the governor to correct language in the law that had made it difficult for DHS bureaucrats to understand the intentions of lawmakers and of voters who elect lawmakers.

We can also give a nod to our managing attorney, Charles M. Parrish, who noticed the parenting time penalty during his day to day practice as a Tulsa divorce attorney. Our in-house communications director, journalist and IT guy, David Collins, did the research for our detailed investigation. He exercised his JavaScript chops to build an online calculator that instantly demonstrated where the parenting time penalty would be applied.

Oklahoma Child Support Calculators Need Updates

Negotiating parenting arrangements after a divorce can be a challenging process, even when the law makes sense. When rigid bureaucrats go out of their way to interpret the law to bizarre conclusions, it only adds to conflict at a time when families most need to find resolution. We are glad this bizarre quirk in Oklahoma family law has been put to rest.

There could still be lingering artifacts of the five-year boondoggle in circulation. The new law does not take effect until Nov. 1. DHS staff previously told us their attorneys can ask courts to correct the penalty imposed in their calculations, but we question how often that happens.

If you are a non-custodial parent who earns twice as much as a custodial parent, and wants to spend more than 121 nights a year with your child, you probably need an Oklahoma child custody attorney to carefully examine the DHS computation.

Oklahoma DHS provides an online calculator that computes child support, and publishes forms for computing child support. Unless DHS updates those forms and Oklahoma child support calculators by Nov. 1 to reflect current Oklahoma law, the parenting time penalty could still loom over some child custody negotiations even after the law takes effect.

We know of one accurate child support calculator – at EsquireEmpire.com – which can correctly calculate Oklahoma child support without the parenting time penalty. We need to update that calculator to reflect the latest med pay computations for families who receive Sooner Care, but I know that one otherwise correctly calculates child support because I wrote it.

The easiest way to find out if the parenting time penalty affects your parenting plans may be to use our online Oklahoma parenting time penalty child support calculator to see if the DHS’ child support calculations impose the parenting time penalty.

Strategy Session: Tulsa Divorce Attorney

If you need advice about a divorce, a custody dispute or a have a concern about Oklahoma child support, contact a Tulsa divorce attorney at Wirth Law Office to learn more about your options and the best approach to resolve your concerns.

For an initial strategy consultation, contact Wirth Law Office’s Oklahoma family law attorneys at (918) 932-1681 or send us your question using the form at the top of this Website.

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Wirth Law Office Communications Director David Collins contributed to this report, including interviews with Bruce Thomspan and Rep. Jerry Shoemake.

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