Does More Parenting Time Justify Less Child Support?

Please note: The Illinois Marriage and Dissolution of Marriage Act (IDMA) was revised as of January 1, 2016. For more information about how this affected child custody and visitation, click here. In July 2017, the law was revised again, changing how child support is calculated in Illinois. For more information about how child support calculations were affected, click here.

Child support, in Illinois, is decided with a calculator. The non-custodial parent is deemed the obligor, his (gender neutral) net income is determined pursuant to Section 505, and the percentage guideline is applied. Although the statute provides for deviations from the minimum statutory guidelines, there is significant judicial resistance to doing so. As one judge stated candidly several years ago: "if I don't deviate, I won't get overruled; if I do deviate, I might." This does not necessarily reflect the sentiments of every judge, and the case law reflects circumstances under which trial courts properly deviated from the guidelines.

For our purposes we will omit the main cases wherein the deviation was based upon substantial earnings, and we will omit editorial on the child support add-ons (e.g. medical, extracurricular, et cetera). Our focus is on circumstances where substantial parenting time is argued as a basis for deviation below the minimum statutory guidelines.

The child support laws incorporate public policies that include (but are not limited to): meeting the needs of the child, and providing the child with a similar standard of living that the child would have enjoyed had the marriage not been dissolved. 750 ILCS 5/505(a)(2)(a) and (c). The child support itself does not have to be expended directly for the benefit of the child, and there is no duty to account. This supports the "overhead expenses" theory: part of the monthly expenses, such as mortgage, utilities and insurance expenses can be attributable to the child, whether or not they are actually present. In other words, the need for child support does not magically cease just because the child went to visit the other parent.

This model makes sense in most cases, especially in the classic case where Mom stayed home with the child and Dad earned income to support them. The parents have already created a model of parenting and child support that may be reflected in a standard marital settlement agreement: Mom is awarded primary custody (staying home with the child), and Dad is ordered to support (continues to work) Mom and the child. While Dad sees the child on alternating weekends, and such, Mom still needs support for the expenses associated with housing, utilities, insurance, food, et cetera. It is assumed that Dad will feed and entertain the child during his parenting time, but it is well-established that this does not create a case for deviation. In fact, Dad is probably told that this was contemplated by the child support laws, and that Mom needs to maintain the overhead expenses even when the child is temporarily absent.

Parenting arrangements have evolved to be more reflective of modern parenting. Joint custody is the new norm, both parties may work, and the non-custodial parent demands more parenting time or visitation with the child. In fact, because of this trend, and probably because of the internet, parties more frequently seek "shared custody" or "fifty-fifty custody". Without commenting on the pros and cons of such parenting arrangements, the existence of such arrangements strains the confines of the current child support statute. The statute provides no particular directive, or guidance, as to the financial effect of extra parenting time.

In IRMO: DeMattia, 302 Ill.App.3d 390, 706 N.E.2d 67, 235 Ill.Dec. 807 (4th Dist. 1999), the parties had entered into a joint parenting agreement under which the mother was named the primary physical custodian. The father had the children alternating weekends and holidays, thirty days vacation time, and four extra weekdays (during the day) and some extra Saturdays (during the day) to accommodate the mother's work schedule. In essence he had parenting time, plus he had the children at times they might otherwise be in daycare. Given his significant extra time with the children, he argued for a deviation below the guidelines. The trial court set child support at the statutory amount (based upon 32%), concluding that "extended visitation time did not require a downward deviation from the statutory guidelines." The Appellate Court affirmed stating: "… the parties agreed to joint custody of the children with [mother] as the primary physical custodian. She is primarily responsible for the children and the guidelines apply." The Court also stated that "Section 505 of the Act creates a rebuttable presumption the specified percentage of a noncustodial parent's income represents an appropriate child support award", citing IRMO: Charles, 284 Ill.App.3d 339, 346-347, 219 Ill.Dec. 742, 672 N.E.2d 57, 63 (1996). "This presumption cannot be negated unless compelling evidence shows reason for the deviation", citingIRMO: Stanley, 279 Ill.App.3d 1083, 1085, 216 Ill.Dec. 890, 666 N.E.2d 340, 341 (1996).

In IRMO: Deem, 328 Ill.App.3d 453, 766 N.E.2d 661, 262 Ill.Dec. 741 (4th Dist. 2002), the trial court extended (from March 1st until the fourth Friday in August) a temporary order

that provided for alternating seven-day periods of custody, and ordered the father to pay daycare expenses, but ordered that neither party pay support to the other during said period. The mother appealed. The Court cited DeMattia, for the proposition that "even in cases involving joint custody, when a primary physical custodian has been designated, the trial court has an obligation to award child support or explain its downward deviation from the statutory guidelines." TheDeem court noted that "the record fails to show that the trial court addressed the reasons for not setting child support." But, because of the visitation schedule and daycare obligation, the trial court did not abuse its discretion. The facts of Deem, including the fact that the "deviation" or omission of child support was for a period of only five months, make it difficult to apply to other cases involving substantial parenting time.

In IRMO: Sawicki, 346 Ill.App.3d 1107, 806 N.E.2d 701, 282 Ill.Dec. 404 ( 3rdDist. 2004), the father was awarded "extensive visitation rights … including the majority of the summer months." The father appealed the trial court's refusal to "abate his child support responsibility during the summer months since [the child] lives with him during those times." The Appellate Court cited DeMattia stating that "there should not be an automatic deduction in child support because a non-custodial parent has the opportunity to spend substantial time with the child and fulfill a parental responsibility." The court also stated that the custodial parent must "finance [the child's] expenses including housing, clothing and upcoming school expenses during that time."

750 ILCS 5/505(a)(2) states that "the above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after the considering the best interests of the child in light of the evidence including … (e) the financial resources and needs of the non-custodial parent."

Complaints that courts will not deviate are countered by the fact that the statute authorizes it only if application of the guidelines is "inappropriate" after considering the various factors. In practice we may see inequitable child support awards that fail to consider the level of time, expense and involvement of the non-custodial parent. The combination of almost-strict adherence to the guidelines, coupled with legislative resistance to "comparative income" models (which may more accurately reflect the parties' circumstances and lead to more equitable support awards) have resulted in child support awards "decided by calculator." Most would agree in principle that this is a fairly arbitrary method of achieving the fairest child support award. As parents "deviate" from standard visitation arrangements, the legislature should consider updating our laws. If not, courts should recognize the fiction of the child support guidelines, and be willing to analyze the parenting arrangement and relative financial circumstances of each household, before setting child support.

Attorney Matt Shaw is the founder of Shaw Sanders, P.C., in St. Charles, Illinois, which concentrates its practice on divorce and family law matters. Contact us today at 630-584-5550.

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