BILL REQ. #:  H-3216.1 

Read first time 01/20/14.   Referred to Committee on Judiciary.

     AN ACT Relating to prohibiting mandatory child support for postsecondary education of adult children; amending RCW 26.09.170, 26.09.225, 26.19.035, and 26.19.075; adding a new section to chapter 26.09 RCW; creating a new section; and repealing RCW 26.19.090.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature recognizes the need and value of postsecondary educational support for children of both married and divorced families. The legislature encourages all parents to assist their children, both financially and emotionally, with their postsecondary education. The legislature declares that the determination of a child's best interest with regard to postsecondary educational support shall be the sole and exclusive prerogative of that child's parents and, further, that it is the inalienable right of parents to structure the kind, amount, and timing of such support, based upon the parents' singular and superior knowledge of their child's individuality, in a way that maximizes the child's individual potential. The legislature hereby expressly disapproves of the ruling in Childers v. Childers, 89 Wn.2d 592 (1978), and cases that have followed the ruling in Childers v. Childers, as contrary to sound public policy with regard to postsecondary educational support.
     (2) Therefore, the legislature finds that ordering divorced parents to financially assist toward postsecondary education is unduly burdensome and infringes on the right of the divorced parent to choose the level of assistance they would otherwise provide if they remained married.

NEW SECTION.  Sec. 2   A new section is added to chapter 26.09 RCW to read as follows:
     A court may not order either or both parents to pay support for postsecondary education of a child over eighteen years of age.

Sec. 3   RCW 26.09.170 and 2010 c 279 s 1 are each amended to read as follows:
     (1) Except as otherwise provided in RCW 26.09.070(7), the provisions of any decree respecting maintenance or support may be modified: (a) Only as to installments accruing subsequent to the petition for modification or motion for adjustment except motions to compel court-ordered adjustments, which shall be effective as of the first date specified in the decree for implementing the adjustment; and, (b) except as otherwise provided in this section, only upon a showing of a substantial change of circumstances. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
     (2) Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance or registration of a new domestic partnership of the party receiving maintenance.
     (3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child or by the death of the parent obligated to support the child.
     (4) Unless expressly provided by an order of the superior court or a court of comparable jurisdiction, provisions for the support of a child are terminated upon the marriage or registration of a domestic partnership to each other of parties to a paternity order, or upon the remarriage or registration of a domestic partnership to each other of parties to a decree of dissolution. The remaining provisions of the order, including provisions establishing paternity, remain in effect.
     (5)(a) A party to an order of child support may petition for a modification based upon a showing of substantially changed circumstances at any time.
     (b) An obligor's voluntary unemployment or voluntary underemployment, by itself, is not a substantial change of circumstances.
     (6) An order of child support may be modified one year or more after it has been entered without a showing of substantially changed circumstances:
     (a) If the order in practice works a severe economic hardship on either party or the child;
     (b) If a party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child's age, and the child is no longer in the age category on which the current support amount was based;
     (c) If a child is still in high school, upon a finding that there is a need to extend support beyond the eighteenth birthday to complete high school; or
     (d) To add an automatic adjustment of support provision consistent with RCW 26.09.100.
     (7)(a) If twenty-four months have passed from the date of the entry of the order or the last adjustment or modification, whichever is later, the order may be adjusted without a showing of substantially changed circumstances based upon:
     (i) Changes in the income of the parents; or
     (ii) Changes in the economic table or standards in chapter 26.19 RCW.
     (b) Either party may initiate the adjustment by filing a motion and child support worksheets.
     (c) If the court adjusts or modifies a child support obligation pursuant to this subsection by more than thirty percent and the change would cause significant hardship, the court may implement the change in two equal increments, one at the time of the entry of the order and the second six months from the entry of the order. Twenty-four months must pass following the second change before a motion for another adjustment under this subsection may be filed.
     (8)(a) The department of social and health services may file an action to modify or adjust an order of child support if public assistance money is being paid to or for the benefit of the child and the child support order is at least twenty-five percent above or below the appropriate child support amount set forth in the standard calculation as defined in RCW 26.19.011 and reasons for the deviation are not set forth in the findings of fact or order.
     (b) The department of social and health services may file an action to modify or adjust an order of child support in a nonassistance case if:
     (i) The child support order is at least twenty-five percent above or below the appropriate child support amount set forth in the standard calculation as defined in RCW 26.19.011;
     (ii) The department has determined the case meets the department's review criteria; and
     (iii) A party to the order or another state or jurisdiction has requested a review.
     (c) The determination of twenty-five percent or more shall be based on the current income of the parties and the department shall not be required to show a substantial change of circumstances if the reasons for the deviations were not set forth in the findings of fact or order.
     (9) The department of social and health services may file an action to modify or adjust an order of child support under subsections (5) through (7) of this section if:
     (a) Public assistance money is being paid to or for the benefit of the child;
     (b) A party to the order in a nonassistance case has requested a review; or
     (c) Another state or jurisdiction has requested a modification of the order.
     (10) If testimony other than affidavit is required in any proceeding under this section, a court of this state shall permit a party or witness to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means, unless good cause is shown.
     (11) After the effective date of this section, a party may petition for modification of an existing order to pay postsecondary child support ordered under RCW 26.19.090 without showing a substantial change of circumstances.

Sec. 4   RCW 26.09.225 and 1991 sp.s. c 28 s 3 are each amended to read as follows:
     (1) Each parent shall have full and equal access to the education and health care records of the child absent a court order to the contrary. Neither parent may veto the access requested by the other parent.
     (2) Educational records are limited to academic, attendance, and disciplinary records of public and private schools in all grades kindergarten through twelve and any form of alternative school for all periods for which child support is paid or the child is the dependent in fact of the parent requesting access to the records.
     (3) Educational records of postsecondary educational institutions are limited to enrollment and academic records necessary to determine, establish, or continue support ordered pursuant to RCW 26.19.090 before the effective date of this section.

Sec. 5   RCW 26.19.035 and 2005 c 282 s 36 are each amended to read as follows:
     (1) Application of the child support schedule. The child support schedule shall be applied:
     (a) In each county of the state;
     (b) In judicial and administrative proceedings under this title or Title 13 or 74 RCW;
     (c) In all proceedings in which child support is determined or modified;
     (d) In setting temporary and permanent support;
     (e) In automatic modification provisions or decrees entered pursuant to RCW 26.09.100; and
     (f)(i) In addition to proceedings in which child support is determined for minors, to adult children who are dependent on their parents and for whom support is ordered pursuant to RCW 26.09.100.
     (ii) A court may not order either or both parents to pay support for postsecondary education of a child over eighteen years of age.
     (iii) The provisions of this chapter for determining child support and reasons for deviation from the standard calculation shall be applied in the same manner by the court, presiding officers, and reviewing officers.
     (iv) The child support schedule may not be utilized to order postsecondary educational support of a child.
     (2) Written findings of fact supported by the evidence. An order for child support shall be supported by written findings of fact upon which the support determination is based and shall include reasons for any deviation from the standard calculation and reasons for denial of a party's request for deviation from the standard calculation. The court shall enter written findings of fact in all cases whether or not the court: (a) Sets the support at the presumptive amount, for combined monthly net incomes below five thousand dollars; (b) sets the support at an advisory amount, for combined monthly net incomes between five thousand and seven thousand dollars; or (c) deviates from the presumptive or advisory amounts.
     (3) Completion of worksheets. Worksheets in the form developed by the administrative office of the courts shall be completed under penalty of perjury and filed in every proceeding in which child support is determined. The court shall not accept incomplete worksheets or worksheets that vary from the worksheets developed by the administrative office of the courts.
     (4) Court review of the worksheets and order. The court shall review the worksheets and the order setting support for the adequacy of the reasons set forth for any deviation or denial of any request for deviation and for the adequacy of the amount of support ordered. Each order shall state the amount of child support calculated using the standard calculation and the amount of child support actually ordered. Worksheets shall be attached to the decree or order or if filed separately shall be initialed or signed by the judge and filed with the order.

Sec. 6   RCW 26.19.075 and 2009 c 84 s 4 are each amended to read as follows:
     (1) Reasons for deviation from the standard calculation include but are not limited to the following:
     (a) Sources of income and tax planning. The court may deviate from the standard calculation after consideration of the following:
     (i) Income of a new spouse or new domestic partner if the parent who is married to the new spouse or in a partnership with a new domestic partner is asking for a deviation based on any other reason. Income of a new spouse or new domestic partner is not, by itself, a sufficient reason for deviation;
     (ii) Income of other adults in the household if the parent who is living with the other adult is asking for a deviation based on any other reason. Income of the other adults in the household is not, by itself, a sufficient reason for deviation;
     (iii) Child support actually received from other relationships;
     (iv) Gifts;
     (v) Prizes;
     (vi) Possession of wealth, including but not limited to savings, investments, real estate holdings and business interests, vehicles, boats, pensions, bank accounts, insurance plans, or other assets;
     (vii) Extraordinary income of a child;
     (viii) Tax planning considerations. A deviation for tax planning may be granted only if the child would not receive a lesser economic benefit due to the tax planning; or
     (ix) Income that has been excluded under RCW 26.19.071(4)(((h))) (i) if the person earning that income asks for a deviation for any other reason.
     (b) Nonrecurring income. The court may deviate from the standard calculation based on a finding that a particular source of income included in the calculation of the basic support obligation is not a recurring source of income. Depending on the circumstances, nonrecurring income may include overtime, contract-related benefits, bonuses, or income from second jobs. Deviations for nonrecurring income shall be based on a review of the nonrecurring income received in the previous two calendar years.
     (c) Debt and high expenses. The court may deviate from the standard calculation after consideration of the following expenses:
     (i) Extraordinary debt not voluntarily incurred;
     (ii) A significant disparity in the living costs of the parents due to conditions beyond their control;
     (iii) Special needs of disabled children;
     (iv) Special medical, educational, or psychological needs of the children. Special educational needs may not be construed to include postsecondary education of a child; or
     (v) Costs incurred or anticipated to be incurred by the parents in compliance with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child.
     (d) Residential schedule. The court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The court may not deviate on that basis if the deviation will result in insufficient funds in the household receiving the support to meet the basic needs of the child or if the child is receiving temporary assistance for needy families. When determining the amount of the deviation, the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support resulting from the significant amount of time the child spends with the parent making the support transfer payment.
     (e) Children from other relationships. The court may deviate from the standard calculation when either or both of the parents before the court have children from other relationships to whom the parent owes a duty of support.
     (i) The child support schedule shall be applied to the mother, father, and children of the family before the court to determine the presumptive amount of support.
     (ii) Children from other relationships shall not be counted in the number of children for purposes of determining the basic support obligation and the standard calculation.
     (iii) When considering a deviation from the standard calculation for children from other relationships, the court may consider only other children to whom the parent owes a duty of support. The court may consider court-ordered payments of child support for children from other relationships only to the extent that the support is actually paid.
     (iv) When the court has determined that either or both parents have children from other relationships, deviations under this section shall be based on consideration of the total circumstances of both households. All child support obligations paid, received, and owed for all children shall be disclosed and considered.
     (2) All income and resources of the parties before the court, new spouses or new domestic partners, and other adults in the households shall be disclosed and considered as provided in this section. The presumptive amount of support shall be determined according to the child support schedule. Unless specific reasons for deviation are set forth in the written findings of fact and are supported by the evidence, the court shall order each parent to pay the amount of support determined by using the standard calculation.
     (3) The court shall enter findings that specify reasons for any deviation or any denial of a party's request for any deviation from the standard calculation made by the court. The court shall not consider reasons for deviation until the court determines the standard calculation for each parent.
     (4) When reasons exist for deviation, the court shall exercise discretion in considering the extent to which the factors would affect the support obligation.
     (5) Agreement of the parties is not by itself adequate reason for any deviations from the standard calculation.

NEW SECTION.  Sec. 7   RCW 26.19.090 (Standards for postsecondary educational support awards) and 1991 sp.s. c 28 s 7 & 1990 1st ex.s. c 2 s 9 are each repealed.