Is it legal for the custodial parents to use child support money on themselves?

Is it legal for the custodial parents to use child support money on themselves?

This is a superb and a brave question. Here is my answer (for the State of Utah, where I practice law): I don’t know. Even after researching the question I can’t find any Utah cases that address this question. I was able to find information for other jurisdictions:

Fornatora v. Fornatora, 256 App. Div. 161, 9 N.Y.S.2d 244 (1st Dep’t 1939) (ex-husband granted a reduction in payments to wife because of her misuse of funds intended as child support).

Rosenblatt v. Birnbaum, 20 A.D.2d 556, 559 245 N.Y.S.2d 72:

While not strictly within the scope of the basic issue arising on this appeal, it may be observed that a husband who believes that his wife or former spouse is diverting alimony intended solely for the support and maintenance of their infant issue is not without adequate remedy where a factual basis for relief exists. If his obligation rests upon an underlying separation agreement, he *559 may sue to reform such agreement so as to make it declare expressly that the wife holds property received thereunder in trust for the benefit of the children. (Cf. Ebenstein v. Pritch, 275 App.Div. 256, 89 N.Y.S.2d 282 [1st Dept.]; Baird v. Baird, 23 Misc.2d 427, 196 N.Y.S.2d 333). If his obligation rests upon a foreign decree of divorce, he may to similar ends invoke the jurisdiction of such tribunal (Rehill v. Rehill, 306 N.Y. 126, 116 N.E.2d 281). If his obligation **78 rests upon a domestic decree, he may apply ‘for a modification of the decree as to future payments’ (Parkinson v. Parkinson, 222 App.Div. 838, 226 N.Y.S. 454 [2d Dept.]). In this State, on an appropriate showing, the court may reduce the alimony previously awarded to the extent of the claimed diversion, and allow the husband to pay directly some of the infants’ expenses (Fornatora v. Fornatora, 256 App.Div. 161, 162, 9 N.Y.S.2d 244, 245).

In Utah, child support can be adjusted upon a showing of substantial change of circumstances warranting adjustment (Utah Code § 78B-12-210(9).

And Utah has a statute that provides for the court to order the parent who receives child support payments to provide an accounting under certain circumstances:…

78B-12-218. Accountability of support provided to benefit child — Accounting.

(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.

(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.

(3) The obligor may petition for the accounting only if current on all child support that has been ordered.

Kansas formerly had a statute (Sec. 2. K.S.A. 60-1616, which has since been repealed) that provided:

(f) Repeated child support misuse, effect. Repeated child support misuse may be considered a material change of circumstances which justifies modification of a prior order of child custody.

You may find this article helpful too: WHOSE MONEY IS IT, ANYWAY? A CUSTODIAL PARENT’S (NON) DUTY TO ACCOUNT FOR CHILD SUPPORT, Divorce Litigation, April 2000, 12 No. 4, Divorce Litig. 57


Utah Family Law, LC | | 801-466-9277

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