Any attorney who practices family law in any capacity must familiarize themselves with the various issues surrounding the calculation of child support. Child support is made up of multiple components which include which include the monetary payment of support from one parent to another, provisions regarding health care, and issues regarding reimbursements for certain expenses of the child. This very brief article will only focus on one aspect of the calculation of monetary support to be exchanged between the parties after they have entered into a plan for shared parenting for the child(ren).
For those with little knowledge in domestic relations law, Ohio Revised Code Sections 3119.021 and 3119.022 sets forth a schedule and guidelines by which the parties are to calculate child support. Without knowing how to run the child support guidelines, one can not effectively represent their clients’ interests regardless of whom they represent. The guidelines take into account the parties income and expenses relating to child care and health care to arrive at an amount to be paid from one parent to another. The bulk of litigation regarding child support involves the figures to be utilized by a court in completing the child support guidelines. However, for purposes of this article we will assume there is no dispute between the parties as to either’s income or the expenses for the child as listed above. The question then turns to what are some reasons a court may not use the guideline recommended support when the parties have shared parenting?
What’s a deviation and Why Allow It?
During my initial interview with my clients and when the issues of custody and child support come up for discussion, I have often heard prospective clients state that they would like share parenting. When I inquire what this means to them, many will tell me that they believe that if you have a shared parenting plan that you are entitled to deviate or eliminate the payment of child support from one party to the other. Despite hearing that sentiment from so many so often it is simply untrue. The Supreme Court of Ohio has stated just the opposite when it held in the case of Pauly v. Pauly, 80 Ohio St.3d 386 (1997), that there is no automatic credit in child support simply because parties have shared parenting. A client only seeking shared parenting thinking there will be no child support is mistaken and must be advised as such. Ohio Revised Code Section 3119.24 requires courts to first calculate child support pursuant to the guidelines in a shared parenting plan. Only after a court has made a determination of what should be paid can it deviate from that amount if it finds that the guideline recommended amount “would be unjust or inappropriate to the children or either parent and would not be in the best interests of the child…” The Court can consider any factor it finds relevant in its determination. Some of the reasons include the extraordinary circumstance of the parents including time spent with the child, ability of each parent to maintain adequate housing, and the expenses of the parents. Other factors include but are not limited to the special needs of children, disparity of income between the parties, benefits parties have received by way of remarriage, standard of living of child had parents remained married, etc. Ohio Revised Code Sections 3119.24 and 3119.23 provide a more detailed listing of factors to be considered. The court, in its journal entry, must make specific findings to support any deviation from the guideline recommended amount. The gist of this is simple in that there exist no easy test to determine if someone is entitled to a deviation and in the amount of child support calculated under a shared parenting plan regardless of whether a party is seeking an upward or downward deviation in child support.
Parenting Time As A Most Common Factor
Without question, the most common reason that one may seek a downward deviation in their child support obligation is based upon the time they spend with the child(ren) pursuant to the parenting time schedule set forth in shared parenting plan. It is a legitimate factor, but its weight will depend on the extent of such time. In a case where the parties have entered into a standard visitation guidelines (which provides for one parent to visit on alternating weekends, once during the weekdays, alternating holidays, and a bulk in time of summer) the non residential parent has the child in their home for 20% to 30% of the time. Therefore, if the plan only provides for something slightly more than the standard order then a request for a downward deviation will not likely succeed. What about when the parties split time equally. In those circumstances, the split of time will be a factor to consider in deviation of child support order but will not in all likelihood eliminate child support. The key here is that extended parenting time is just one factor for the court to consider. For the remainder of this article let’s assume the parties have entered into a shared parenting plan where the parties actually do split possession of the child(ren) equally.
A family law practitioner must look to present to the court evidence relevant to as many factors as applicable under the Ohio Revised Code. Too many lawyers argue that a parent having equal parenting time alone automatically merits a termination of child support. This is too one dimensional of an approach and does not look at what the relevant statutes list as relevant factors. As stated previously, the disparity of the parties’ incomes and the obligation to pay for expenses with the child will be considered. For example, assume that Parents A and B have a 50/50 parenting time schedule under a shared parenting plan with Parent A earning $100,000.00 while Parent B earns $20,000. Even with the 50/50 schedule there will probably be a child support order because it would be unfair for a child to have a one parent with ample funds while the other parent has little to provide during their time with the child. Many courts may still order the payment of child support even when the parties have similar incomes. The same is true if one of the parties is required to pay a bulk of the expenses of the child despite a 50/50 plan. A court may lower the amount of the parent’s child support obligation, but very well will not eliminate the child support order. The amount of the deviation will be determined based upon the rest of the factors set forth in the Ohio Revised Code. Hence, don’t put all of your cards into having a 50/50 plan as way to get clients out of paying child support. Look at the statute and argue all factors.
Don’t Leave the Child Unclothed and Bored
As absurd as the above statement is, I believe it is quite relevant to this issue. Many times parties will go to their respective attorneys during the negotiation process saying that they have agreed to a 50/50 split plan and that neither needs child support from the other. Don’t stop there. Inquire of your client if this plan can practically work given the parties work schedules, children’s school schedule, and children’s extracurricular activities and lessons. Assuming all those factors doesn’t prevent an equal split of time, have you asked your client who will pay what expenses associated with the child? Who will provide clothing? Having both parents provide clothing is one way to resolve the issue. But what about when children get older and they don’t want to leave their Abercrombie & Fitch jeans at their mother’s house for a week? Maybe consider having the parties contribute to a clothing fund where the parties each contribute some money. Who will pay for the child’s activities? Many times agreements are drafted that require both parties to agree upon an activity for the child to be enrolled. Does this mean that of they parties can’t agree which ballet class the child will attend (the expensive or cheap class) that the child will be deprived of the activity.
Most times that parties come into their attorneys offices having already to split time 50/50 with their soon to be ex-spouse there is one commonality. It is that the parties generally agree as to the raising of the children and get along pretty good. The purpose of a shared parenting plan is not for when parties get along, but when they do not. It is a failure of a shared parenting plan not to provide any answers and resolutions that arise after the divorce is granted. A shared parenting plan should be written to provide those answers so the parties are not simply litigating their differences later. Even with a 50/50 parenting plan, many times having one parent obligated to pay for such things as school fees, clothes, and activities and the other parent pay something in child support to cover their share of expenses is a way to resolve future arguments before they even begin. It forces the parties to discuss what they want to provide for their child and how to afford it. It also gives one parent a budget from which to work from and other parent an expectation of their expenses associated with the child.