CHILD SUPPORT GUIDELINES AND THE SHARED CUSTODY DILEMMA
© 1998 National Legal Research Group, Inc.
I. ADJUSTING FOR "SHARED CUSTODY": THE PROBLEM OF REDUNDANT COSTS
One of the most important variables in determining the proper amount of child support is the form of custody ordered by the court. Embedded in the child support guidelines of all the states is the presumption that the court will order "standard visitation" of 20% overnight visitation with the noncustodial parent. This 20% figure is based on 73 days: every other weekend (52 days), plus 2 weeks in the summer (14 days), plus Mother's Day or Father's Day (1 day), plus Thanksgiving or Christ mas (2 days), plus birthdays (2 days), plus a miscellaneous day (1 day). See Karen Czapanskiy, "Child Support, Visitation, Shared Custody and Split Custody," Child Support Guidelines: The Next Generation 43, 44 (U.S. Dep't Health & Human Services, Office of Child Support Enforcement, 1994); Karen Czapanskiy, Child Support and Visitation: Rethinking the Connection, 20 Rut.-Cam. L.J. 619 (1989). When the parents have some form of shared physical custody that is over this 20%, the presumption embedded in the guidelines no longer applies, and an adjustment to the support order should be made.
That some kind of adjustment should be made is based on the recognition that in cases of shared custody each parent is directly paying part of the child's fixed and nonfixed expenses. This does not mean, however, that for every dollar that the non custodial parent pays in expenses the custodial parent's expenses decrease, resulting in a zero sum gain. Rather, the total of expenditures by each parent increases; the noncustodial parent's expenses increase, and the custodial parent's expenses do not decrease by the same amount. This result is predicated on the fact that each parent pays "redundant costs." Redundant costs are fixed expenses that both parents must pay, for example, a bedroom for the child, basic furniture and toys, housing expenses, utilities, etc. See, e.g., Travers v. Travers, 665 So. 2d 625 (La. Ct. App. 1995) (under shared custody formula, each parent is treated as a separate house hold with custody of one-half of the total number of children, so that support reflects the cost of separate homes and savings from discontinuous custody). Child support guidelines at least implicitly recognize this point by providing that as the number of children in a family goes up the amount of support devoted to each child goes down. The guidelines recognize that the amount needed to support two children is less than twice the amount needed to support one child because certain household expenses are shared. It is this same point that must underlie the discussion of shared custody. Thus, while there should be some adjustment to the amount of support for shared physical custody, it is difficult for a child support formula to determine how much that adjustment should be. Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998) (noting different methods used to accommodate redundant costs and the problems inherent in each method); see Marygold S. Melli & Patricia R. Brown, The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence, 31 Hous. L. Rev. 544 (1994); Karen A. Getman, "A Critique of the Effect of Non- Traditional Visitation and Custody Arrangements on Child Support Awards Under Current Guidelines and Formulas," Essentials of Child Support Guide lines Development: Economic Issues and Policy Considerations 127 (Women's Legal Defense Fund 1987).
The need to make some kind of adjustment for shared custody/extended visitation is acute. Families are establishing joint custody arrangements at increasingly higher rates. The 1995 Census Bureau report for the year 1991 showed that 73% of non custodial mothers and 58% of noncustodial fathers had extensive visitation privileges or joint custody. United States Department of Health and Human Services, Final Report: Evaluation of Child Support Guidelines, Volume I at 3-39 (1996). Because of the need to make some kind of adjustment for shared custody, the various child support guidelines in the United States have incorporated provisions that make such an adjustment, but the guidelines vary considerably in how that adjustment is calculated.
II. THE FIRST VARIABLE: WHAT IS "CUSTODY"?
The first variable in how the guidelines approach "shared custody" is how the term "custody" itself is defined. First, some states' guidelines define custody in terms of overnight visitation: Alaska, Colorado, Hawaii, Idaho, Maryland, Michigan, North Carolina, Tennessee, and Wyoming. Second, other states' guidelines define custody as being with the noncustodial parent a percentage of "time": Alabama, Arizona, California, District of Columbia, Louisiana, Maine, Mississippi, Missouri, Oregon, South Dakota, Washington, and West Virginia. Third, some states' guidelines define custody in terms of a percentage of the year the child spends with the noncustodial parent: New Mexico, Vermont, and Wisconsin. A few states' guidelines define custody in terms of how many "days" are spent with the noncustodial parent: Montana and Virginia.
Where the definition is overnight visitation, determining whether the noncustodial parent has taken "custody" is not difficult. E.g., In re Marriage of Southwell, 119 Or. App. 366, 851 P.2d 599 (1993) (time with father, to apply shared custody, means overnights, not hours, where Colorado guideline defines shared custody as more than 92 overnights).
Where the definition is more amorphous, such as "time" or "day," the results can be varied. In In re Marriage of Southwell, for example, the court was faced with interpreting the Oregon guidelines, which provide that there shall be a special formula based on the "time" spent with the noncustodial parent. The court determined that "time" meant the number of overnights the child spent with the noncustodial parent. After all, when a child spends the night with a parent, that parent is responsible for dinner, bedtime, and breakfast, and perhaps even for lunch if the child needs to take his or her lunch to school. See also the District of Columbia Child Support Guidelines Worksheet, which asks parents how many "days" are spent with the child and defines a "day" as 18 out of 24 hours.
In another example, however, the court in Ewing v. Ewing, 21 Va. App. 34, 461 S.E.2d 417 (1995), was called upon to interpret the Virginia guidelines, which provide that a parent has "shared custody" where a parent has custody of the child for at least 110 "days" of the year. In that case, the court determined that "day" should be defined not as overnight visitation but as any continuous 24-hour period. Accord In re Marriage of Hansen, 81 Wash. App. 494, 914 P.2d 799 (1996) (any period totaling 24 continuous hours is "custody," not the common-law definition of a day, which is midnight to midnight). In my opinion, the Ewing and Hansen decisions are flawed because, under the definition of "day" adopted by these courts, it is possible that a noncustodial parent, exercising extensive visitation of up to 180 overnights a year, and thus incurring equal costs in childrearing to those of the custodial parent, would never have even one full "day" of visitation, leaving the parties with the anomalous and ridiculous result that there are no days in a year. Because the Virginia Child Support Guidelines make an adjustment for shared custody when a parent has 110 "days" of visitation, the Virginia Child Support Guidelines were rendered meaningless as the result of the Ewing decision. Indeed, anecdotal evidence from attorneys in Culpepper County, Virginia, have shown that one judge consistently orders visitation in a way in which neither parent ever has "custody" under the Ewing definition. See Brown v. Brown, Va. Law. Weekly 096-8-172 (Va. Cir. Ct. 1996) (by using the Ewing definition of day, father was able to eliminate his child support obligation).
In order to ameliorate the result of the Ewingdecision, the Virginia legislature appointed a subcommittee to redraft the shared custody provisions of the Virginia Child Support Guidelines. Agreeing on a definition of a "day" proved to be one of the hardest tasks. Some members favored overnight visitation, some favored physical custody for 18 out of 24 hours, some favored physical responsibility for a majority of time in a 24-hour period, and some favored actual economic expenditures. The liveliness of the debate among educated and caring family law academics and practitioners showed how difficult this seemingly simple question can be: What does it mean to have custody of a child? Is it physical custody alone, is it some kind of responsibility for the child, or is it a matter of dollars and cents alone? The compromise wrought by the subcommittee reads as follows:
For purposes of this section, a "day" shall be defined to be a period of twenty-four hours; provided, that where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than twenty-four hours, then the parents will each be allocated one-half of a day of custody for that period. If the court determines that the application of the definition of a day as set forth herein would be unjust or inappropriate, then the court may allocate a day, or a half day, to one parent or the other in its discretion.
III. THE SECOND VARIABLE: WHAT IS "SHARED" CUSTODY?
Once it is determined that a noncustodial parent does, indeed, have "custody," the next step is to determine whether the parents have "shared custody" or "extraordinary visitation." The various guidelines have addressed this question in basically three ways: (1) substantially equal time, (2) time greater than a threshold amount, somewhere between 20% and 40%, or (3) shared custody/extra ordinary visitation.
First, in some states, where a child spends "substantially equal" amounts of time with each parent, the parents have "shared custody." In New Mexico, the distinction is made by calling equal custody "equal responsibility" and calling custody in excess of 30% "shared responsibility." Yet, even in these "equal time" states, such as Hawaii, Kansas, and New Mexico, an adjustment is made for visitation in excess of 30% but less than 50%. Where this adjustment is made for custody over 20% but less than 50%, the adjustment is in the nature of an adjustment for extraordinary visitation. In Idaho, however, the test is not equal time, but equal sharing of costs and at least 35% overnight visitation.
These "substantially equal time" states are assuming that where each parent has substantially equal time then the parents have substantially equal costs. If this test is met the guidelines provide for a specific calculation of the guideline amount that is different from nonshared custody (called, in contrast, sole custody).
The method adopted by these "substantially equal time" custody states is cumbersome because two calculations, not one, must be made, for custody over the threshold adopted: a special formula for custody between the threshold and equal visitation and a special formula for substantially equal custody. A less cumbersome methodology could be adopted by having one test for all custody over a particular threshold, and that is what is done by a number of states.
Second, some states provide that once a threshold amount of visitation in excess of the "ordinary" 20% visitation is met, the support will be adjusted on a sliding scale to reflect the amount of time the children spend with each parent. Again, these states are making an assumption that when substantial amounts of time are spent with the child then the costs to the noncustodial parent go up. The thresholds vary from state to state. For example, in Alaska, the threshold is 30% visitation; in Colorado, the threshold is 92 overnights; the District of Columbia requires 40% visitation; in Maryland, the proportionate calculation does not come into play until the child spends 35% of the time with the noncustodial parent; in Michigan, the threshold is 128 days; in North Carolina, the threshold is 123 days; in Oregon, the threshold is 35% custody; in Utah, the threshold is overnight visitation for more than 25% of the year; in Vermont, the threshold is 30% visitation; in Virginia, the threshold is 110 days of the year; in Wisconsin, the threshold is 30% custody.
It is extremely important to note that in these "sliding scale" states the adjustment is not made for the entire amount of custody the noncustodial parent assumes, but only the custody the noncustodial parent assumes in excess of the 20% custody assumed in the guidelines. This is accomplished by means of a multiplier. Because of redundant costs, when parents have a form of shared custody, a multiplier is often applied to the amount of support to be apportioned. Most often, the multiplier is 1.5.
Where the statute specifies the threshold amount of custody that must be met before the shared custody formula is applied, it is error for the court to apply that formula in the absence of evidence that the threshold has been met. In re Marriage of Redford, 776 P.2d 1149 (Colo. Ct. App. 1989); In re Marriage of Southwell, 119 Or. App. 336, 851 P.2d 599 (1993). It is also error for the court not to apply the formula when the evidence indicates that the formula should be applied. Wright v. Gregorio, 855 P.2d 772 (Alaska 1993); Eddie v. Eddie, 201 Mich. App. 509, 506 N.W.2d 591 (1993); Cranston v. Cranston, 879 P.2d 345 (Wyo. 1994); see also Molstad v. Molstad, 193 Wis. 2d 602, 535 N.W.2d 63 (1995) (court should consider fact that one parent has custody 30% of time).
The major drawback of this methodology has been the anecdotal reports that some noncustodial parents will negotiate for custody that reaches the threshold in order to obtain the benefit of the discount, but will then not exercise this visitation. This drawback, however, can be dealt with in the guidelines by providing for an automatic modification of child support if visitation is not exercised.
Third, and finally, some states view shared custody as a deviation factor only. The court will not apply any special formula, but will figure the presumptive amount based on sole custody, and then deviate from that amount. These states make no assumption that increased time with a child translates into increased costs for the noncustodial parent and decreased costs for the custodial parent. Rather, each case must be examined on its facts. Typical of the reasoning of states that have adopted this method is Alabama's:
The Alabama child support guidelines do not specifically address the problem of establishing a support order in joint legal custody situations. Such a situation may be considered by the court as a reason for deviating from the guidelines in appropriate situations, particularly if physical custody is jointly shared by the parents. . . . Because of the infinite possibilities that exist in terms of time spent with each parent and other considerations associated with such custody, a determination of support is to be made on a case-by-case basis.
Ala. R. Jud. Admin. 32 cmt. The child support guidelines of Connecticut and Indiana have an identical provision. This method is indistinguishable from granting a deviation based on extraordinary visitation. See, e.g., Matter of Burkenstock, 666 So. 2d 1168 (La. Ct. App. 1995) (despite father being designated primary custodial parent, custody arrangement was more in nature of shared equal custody, so father should pay support to mother); Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998) (basic percentages of New York's child support standards act do not apply in situations where parents share physical custody; drafters did not contemplate shared custody, and courts consider the total circumstances in both parents' homes in setting support amount); Eickelberger v. Eickelberger, 93 Ohio App. 3d 221, 638 N.E.2d 130 (1994) (court deviated from guidelines because parents had adopted a shared parenting plan, apportioning education, insurance, clothing, other expenses).
IV. THE THIRD VARIABLE: CUSTODY THAT IS MORE THAN ORDINARY, BUT LESS THAN SHARED
Extraordinary visitation as a deviation factor arises in two different scenarios under the guidelines. First, the guidelines may provide that shared custody, the particular custodial arrangements, and extraordinary visitation are all deviation factors. E.g., Gray v. Gray, 885 S.W.2d 353 (Tenn. Ct. App. 1994) (guidelines do not apply in cases of shared custody, split custody, and extended visitation; determination of proper support in those cases should be made on case-by-case basis). Second, the guidelines might provide that shared custody comes into play when the noncustodial parent reaches a particular threshold amount of visitation, usually somewhere above 30%. In this latter scenario, visitation above the presumed 20% amount under the guidelines, but below the threshold amount for shared custody, is extraordinary visitation, and such extraordinary visitation may necessitate deviation. In either scenario, the court must decide whether to deviate from the presumed guideline amount because of the amount of time the children spend with the noncustodial parent. E.g., LaLiberte v. LaLiberte, 105 Ohio App. 3d 207, 663 N.E.2d 974 (1995).
In considering whether to deviate for extraordinary visitation, the courts have developed a two-part test. First, the court will determine if the visitation is in fact "extraordinary." Visitation that is little over the standard 20% will usually not be considered extraordinary visitation warranting deviation. See, e.g., Flanagan v. Flanagan, 656 So. 2d 1228 (Ala. Civ. App. 1995) (one-month visitation in summer is not extraordinary visitation); In re Marriage of Hornung, 480 N.W.2d 91 (Iowa Ct. App. 1991) (visitation amounting to 21% of time for father was not reason for deviation); Temple v. Temple, 651 So. 2d 466 (La. Ct. App. 1995) (statute does not require deviation for extensive visitation; deviation not required, especially where there is no extended continuous period of visitation); Schubert v. Tolivar, 905 S.W.2d 924 (Mo. Ct. App. 1995) (father who had custody for two weeks at end of each of three summer months was not entitled to deviation for extraordinary visitation since he did not ever have children for 30-day stretch); Susan M. v. Louis N., 206 A.D.2d 612, 614 N.Y.S.2d 584 (1994) (partaking of regular visitation is not a reason to deviate down from the guidelines); Gaudette v. Gaudette, 192 A.D.2d 779, 596 N.Y.S.2d 173 (1993) (every weekend visitation does not constitute extraordinary visitation); Connor v. Connor, 434 Pa. Super. 288, 642 A.2d 1136 (1994) (27% visitation not extraordinary).
Second, the court will focus its inquiry on whether the extra time spent with the noncustodial parent results in a greater financial burden on the noncustodial parent and in a concomitant lesser financial burden on the custodial parent.
The Washington State guidelines state the test clearly:
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 support to meet the basic needs of the child or if the child is receiving aid to families with dependent children. 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.
The many cases that have considered extraordinary visitation as a deviation factor have echoed this test: A deviation may not be had unless there is evidence that the extended visitation has a concrete economic impact on the noncustodial parent and on the custodial parent. Turinsky v. Long, 910 P.2d 590 (Alaska 1996); Renfro v. Renfro, 848 P.2d 803 (Alaska 1993) (adjustment based on expenses incurred during visitation should at least be considered by court, even if deviation is not ultimately granted); Pridgeon v. Pridgeon, 632 So. 2d 257 (Fla. Dist. Ct. App. 1994) (child's extended visitation with father can be considered in making award where extended stays have the effect of reducing the custodial parent's expenses); Marmaduke v. Marmaduke, 640 N.E.2d 441 (Ind. Ct. App. 1994) (where father had custody close to 50%, proper to deviate to compensate for added expenses); Terpstra v. Terpstra, 588 N.E.2d 592 (Ind. Ct. App. 1992) (close to 50% custody warranted deviation where there was evidence concerning noncustodial parent's expenses); In re Marriage of Cray, 18 Kan. App. 2d 15, 846 P.2d 944 (1993) (court may deviate for extensive visitation); Remson v. Remson, 672 So. 2d 409 (La. Ct. App. 1996) (court reduced father's obligation because of economic impact of extended visitation); Brazan v. Brazan, 638 So. 2d 1176 (La. Ct. App. 1994) (where father had child 50% of the time, court would deviate to account for such arrangement since father paid for child care and medical insurance); Montet v. Montet, 629 So. 2d 538 (La. Ct. App. 1993) (joint custody is reason for deviation where the parents contribute equally in the day-to-day care of the child); Hoffman v. Hoffman, 870 S.W.2d 480 (Mo. Ct. App. 1994) (noncustodial father not entitled to reduction in support, despite claim that children were with him 36% of the time, where there was no evidence concerning economic impact); Kappelmann v. Kappelmann, 218 A.D.2d 698, 630 N.Y.S.2d 555 (1995) (father entitled to adjustment in support for summer months children spent with him); Narvae v. Freestone, 281 N.J. Super. 484, 658 A.2d 736 (Ch. Div. 1995) (father who had custody 39% of time was entitled to credit on support where such custody had an impact on the father's expenses in that he was responsible for child care); Mocnik v. Mocnik, 838 P.2d 500 (Okla. 1992) (reduction in support allowed due to extensive visitation in summer months); cf. Garrod v. Garrod, 590 N.E.2d 163 (Ind. Ct. App. 1992) (no deviation in guidelines although custody approached 40% where trial court did not find economic impact on noncustodial parent); In re Marriage of Toedter, 473 N.W.2d 233 (Iowa Ct. App. 1991) (support not reduced during periods of visitation where there was no evidence the custodial parent had reduced expenses); Bronstein v. Bronstein, 203 A.D.2d 703, 610 N.Y.S.2d 638 (1994) (extra visitation exercised by father did not warrant deviation where there was no evidence of the financial impact such visitation had on the custodial parent); Martin v. Martin, 66 Ohio St. 3d 110, 609 N.E.2d 537 (1993) (the adoption of a joint parenting plan does not, in and of itself, mandate deviation from the guidelines); Anzalone v. Anzalone, 449 Pa. Super. 201, 673 A.2d 377 (1996) (where father had 40% custody, deviation in amount of 50% was not appropriate; father may not claim as "extra" expenses the expenses father would have paid for anyway); Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291 (1992) (deviation not warranted where noncustodial parent was unable to show that expenses were greater than those contemplated by legislature in guidelines); see also Annotation, Right to Credit on Accrued Support Payments for Time Child Is in Father's Custody or for Other Voluntary Expenditures, 47 A.L.R.3d 1031 (1973).
Where a court does decide to deviate because of extraordinary visitation, the court may deviate only for those expenses above and beyond the expenses that the guidelines presume the noncustodial parent will pay. In other words, since the guidelines assume 20% custody in the basic figures, where parents share custody 50/50, the adjustment should be only the extra 30%, not 50%. Prosser v. Cook, 185 Wis. 2d 745, 519 N.W.2d 649 (Ct. App. 1994); see also Matula v. Bower, 634 N.E.2d 537 (Ind. Ct. App. 1994) (court would not deviate additionally for father's claimed clothing, medical, and education expenses where court already reduced presumptive award by 10% to account for expenses associated with extended visitation).
A deviation because of extraordinary visitation can lead to the interesting result that the custodial parent must pay the noncustodial parent support. This occurred in Little v. Little, 441 Pa. Super. 176, 657 A.2d 12 (1995). In that case, after a modification of custody proceeding, the father was award ed custody of the parties' two children, and the father's obligation to pay child support was vacated. The mother later requested modification of the support order, requesting that the custodial father pay child support to her for the time she exercised her visitation. The trial court denied the request, but the superior court reversed, holding that visitation with the mother was so extensive it should be more properly labeled "shared custody." Given the extensive amount of time the children were in the custody of the mother and the mother's limited income versus the father's $20,000 per month income, an award of support to the noncustodial parent was proper. Accord Clarke v. Clarke, 619 So. 2d 1046 (Fla. Dist. Ct. App. 1993) (although mother was noncustodial parent, visitation was so substantial that it was like shared custody; given disparities in income, mother properly received support); LeBlanc v. LeBlanc, 597 A.2d 62 (Me. 1991) (where mother and father shared parental rights and mother had child more than 30% of time even though father was designated as primary residential care provider, father was properly ordered to pay support to mother); Matz v. Matz, 166 Wis. 2d 326, 479 N.W.2d 245 (Ct. App. 1991) (in joint legal custody situation, there is no rule that parent with primary physical placement cannot be ordered to pay support to the nonprimary parent); see also Sillis v. Hernandez, 608 So. 2d 289 (La. Ct. App. 1992) (mother had right to receive support from father during three summer months father was domiciliary parent in absence of judgment stating support would cease for those months); Leone v. Leone, 917 S.W.2d 608 (Mo. Ct. App. 1996) (mother got support during school year, and father got support during summer months).
V. CURRENT TRENDS
Everyone would agree that it is sound public policy for a child to spend as much time as possible with both parents. Ironically, time-share formulas discourage this laudable goal by trading days for dollars. The custodial parent too often sees every day of custody with the noncustodial parent as a loss of economic support. The noncustodial parent may see each additional day of custody with the non custodial parent as a means to reducing support. A primary parent will be reluctant to agree to small increases in time with the other parent if that means a large decrease in the amount of child support received. Conversely, a large decrease in child support when a threshold is reached for a small increase in custody may encourage noncustodial parents to seek those small increases in time as a means of reducing support. This can lead to an increase in litigation over custody. Second, the child support guidelines too often do not reduce proportionally down to zero at 50/50 time sharing, and there is no mechanism for modification if the custody time factored into the award is not exercised. Thus, there can be an increase in litigation over modification of support.
The most common way to account for these shortcomings is to use a multiplier, most commonly 1.5. The multiplier works best if it commences at the point where the sole custody formula would yield more than the shared custody formula. In this way, the days-for-dollars problem can be avoided, and each parent bears an appropriate level of support because the multiplier commences at a different number of days depending on the income levels of the parties, and it does not apply unless and until there is a benefit to the noncustodial parent. The slope of decreasing support to the custodial parent is therefore much less sharp, mitigating the days-for-dollars problem. The subcommittee studying Virginia's Child Support Guidelines' shared custody provision made such a recommendation.
Another method to overcome many shortcomings present in the various guidelines would be to isolate what we may term "fixed costs" that each parent must pay, such as work-related child care, housing, medical insurance, and tax benefits, that would accrue to each parent by virtue of the shared custody arrangement. These "fixed costs" are constant the year round regardless of how many days a child spends with the noncustodial parent. These fixed costs would then be attributed to each parent. We would then further isolate "shiftable costs" that shift smoothly and continuously to the noncustodial parent in a manner directly proportional to the amount of time the noncustodial parent has custody. Such shiftable costs would include food, transportation, clothing, education, and entertainment. Shiftable costs would then be attributed to each parent based on the amount of custody each parent has. This method has been advocated by the Children's Rights Council.
In determining fixed costs, the court would add together (1) the annual cost of regular child care that allows both parents to work, minus whatever tax benefits are derived from such child care; (2) the actual incremental cost of providing medical insurance for children to whichever parent carries the children on his or her policy; (3) the incremental cost of providing housing for the children by the custodial parent; (4) the incremental cost of providing housing for the children by the noncustodial parent; and (5) the incremental tax benefit to the custodial parent for being able to take the children as deductions, exclusions, etc.
In determining shiftable costs, first determine the average gross incomes of both parents, which is an indication of the average standard of living of the two households. Once the average standard of living is determined, reference must then be made to the average costs of the children for food, transportation, clothing, and education for the two households. The total shiftable costs are then determined as being the total costs of the children that shift from the custodial parent to the noncustodial parent as the noncustodial parent spends more time during the year with the children and the custodial parent spends less time.
The fixed cost/shiftable cost method of accounting for shared custody, therefore, would work something like this in a percentage-of-income model:
1. determine the gross income and net income of the noncustodial parent;
2. determine the total cost of providing for the children (fixed costs plus shiftable costs);
3. determine the total fixed cost and total shiftable cost the noncustodial parent is paying;
4. take the total fixed cost and total shiftable cost as determined in step 3, and discount these amounts by the fixed costs and shiftable costs the noncustodial parent would have paid regardless of whether shared custody was ordered, and determine fixed costs and shiftable costs that are attributable to shared custody;
5. determine the child support payment by subtracting the amount arrived at in step 4 from the amount the noncustodial parent would pay in regular 20% visitation.
The major drawback to this method of addressing shared custody is that it is almost totally cost focused: Each parent would have to document the actual costs of support. When parents are divorcing, the actual costs of supporting a child are speculative.
It remains to be seen how the states can solve these dilemmas. One important step in solving these dilemmas would be for the United States Department of Agriculture to gather data on the costs of raising children, not merely in intact family households and in single-parent households but also in two-parent dual households. This information would be key to assessing the true costs of raising children in two homes and to determining both fixed and shiftable costs.
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