There are many excellent reasons to pursue a 50/50 custody arrangement – mutual investment in a minor child and schedule allowances among them. However, one very bad reason to pursue a 50/50 split is the anticipated waiver of an obligation to pay child support. Why? Because that’s not how child support works.
Child support is subject to both federal and state law. Pursuant to 45 CFR sec. 302.56(c)(1)), federal law mandates that state child support guidelines must provide that a child support order be based on the non-custodial parent’s earnings, income, and other evidence of ability to pay; but California state law, specifically Family Code § 3900, expands on this, providing that the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances. So what does that mean? It means, effectively, that the court considers more than just a timeshare percentage when calculating an appropriate child support order- the court looks at each parents’ actual income, earnings, and ability to pay support, and the lifestyle to which the child is accustomed and/or entitled based on these factors. Long story short, the Court will not allow a minor child of separated or divorced parents to live in a gated community with one parent and section 8 housing with the other; if the minor child shops at Whole Foods with Parent 1, they shouldn’t be going to the foodbank with Parent 2. As a result, where there is a significant disparity in income, the higher-income earner is likely to have a child support obligation, even if the custody arrangement is 50/50 (although the support number is likely lower than it would be if the paying parent had less than a 50% custodial share). If you, as a parent, want to think like the Court, it is not your ex-partner’s fridge that you’re filling, it’s your minor child’s fridge.
If ever there was a seemingly universal payor objection to child support, it’s that these laws allow lower-income parents to coast on the other parent’s support payments. This is grossly unfair; is it also true? Absolutely not. A party who remains deliberately and unnecessarily unemployed or underemployed in order to exploit child and/or spousal support is an issue subject to the Court’s assessment and potential order; however, as always, the burden is on the party filing the motion to prove that this is the case, and the child has to have their needs met in the meantime. That responsibility lays with the parents. Failure to do so can lead to significant arrears, accumulated interest, and potential criminal penalties.
The child support calculation is a complicated one, and it’s not uncommon for modifications of support amounts to be necessary throughout a child’s life until they turn 18. Before throwing money at a motion based on a misunderstanding of child support laws, compounding your child support expense with a failed motion expense, we encourage you to contact our attorneys and set yourself up for success.
Related Post: So You Want 50/50 Custody Pt. 1
