July 25, 2014

Custodial Parent Uses Auxiliary Benefits and Child Support on Beer and Dancing – What Can I Do?

parent wasting child supportI have received several emails from unhappy non-custodial parents who are paying child support and/or whose children receive auxiliary benefits thanks to the non-custodial parent.   As one such reader wrote:

How can the non-custodial parent control the use of the benefit for the welfare of the child if the custodial parent is a chronic nonworking individual who lives off welfare and the child support I provide already?

Here are my thoughts: there are really two issues here.  The first issue has to do with child support, which is a state court issue.  Generally, when a state court judge awards primary custody and child support, he does so with the belief and expectation that the custodial parent is best equipped to take care of the child or children.  Even when custody is evenly divided, a judge may award child support if he believes that the non-custodial parent needs the financial resources to best care for the child.

Usually the state court judge does not demand that the child support recipient account for the money received.  Nor do state court judges have the resources to monitor the behavior (i.e., the refusal of a custodial parent to get a job).  Judges also recognize that child support payers often have hostile feelings towards the custodial parents and decline to get involved in domestic spats.

Custodial parents will, of course, argue that child support is often awarded in an amount that is less than what is actually needed to care for a child.

The bottom line as far as state court child support is concerned is this: it will be an uphill battle for a child support payer to convince a judge to modify support or change custody.  As any domestic relations lawyer will tell you child support modifications are difficult and expensive and you will need evidence in the form of witnesses, receipts and/or video tape to convince most judges.

As far as Social Security benefits are concerned, the standards are a little different.  A child beneficiary is called an auxiliary and assuming that the child is not a legal adult, someone has to serve as the representative payee.

Usually SSA will appoint the custodial parent as the representative payee and that person has what amounts to a fiduciary duty to spend the auxiliary’s money for the benefit of that child.  Further, a rep payee must file annual reports setting out how that money was spent.

If a rep payee does not spend the auxiliary’s money properly SSA can commence a fraud investigation, revoke the rep payees authority and even demand repayment of wasted funds.

Over the years I have seen a few instances where SSA did conduct such an investigation.  However, SSA is currently in the midst of a budget crunch and I suspect that fraud investigations of custodial parents is not high on the list.  Still, if you suspect that the custodial parent is wasting funds and you have evidence of this, you can report the alleged fraud to SSA by clicking on the link.

I would be careful about reporting fraud unless you know that it exists and that there is evidence of same.   If you allege that the custodial parent of your child is misusing auxiliary SSA benefits, you are going to make an existing tense situation worse, if that is possible.  Further, if SSA concludes that your report of fraud was itself fraudulent you could face sanctions.

At the end of the day, both state court judges and Social Security decision makers are going to focus on what they believe is the best interest of your child, rather than any real or perceived that exist between you and your child’s other parent.



About

Jonathan Ginsberg practices Social Security disability law in Atlanta, Georgia.  He represents clients in claims before the Social Security Administration.

Comments

  1. Sal Raie says:

    I have more of a question then a comment. Can the Court order a man who is living off SSD benefits to pay child support? The auxiliary amount for the child is minimal. What is the statute or case law that states so?

  2. John Bowles says:

    I am on SSD, which has provided a stipend for my child. A couple of years ago I divorced and my ex-wife received full custody. She is a university administrator and makes a sizable income, yet unlike when we were married, nothing beyond usual expenses are provided to my daughter (when we were married the income was used for special camps, lessons and classes, and added to her college fund). Thanks to her mother I have very little contact with my child — can I have the SSD payment for her stopped? Thank you. JPB

Speak Your Mind

*