Bruce I. Shapiro, Las Vegas, Nevada
Introduction
Only one-half of this country’s children live in a “traditional nuclear” family.1 As more children live in split homes, issues involving child support in shared custody arrangements will continue to emerge. Unfortunately, it generally emerges as a means of obtaining a reduction in one of the parents’ child support obligation.
In Nevada, the relevant statute is NRS 125B.080(9)(j), which provides that the court shall consider “the amount of time the child spends with each parent” as a basis for deviating from the statutory guidelines. Litigation of this factor has generally centered on the question of how much time the noncustodial parent must have with the child before the court will give that parent an offset or abatement in his or her support obligation. This has left the courts to decide whether to look at the decreased financial burden of the custodial parent or at the increased financial burden of noncustodial parent. It is virtually a given that certain expenses of the custodial parent, such as food, entertainment and perhaps clothing, will decrease during periods when the noncustodial parent has visitation or extended custody. That same parent’s fixed expenses, however, such as rent and utilities, will not abate during such periods. By the same token, the noncustodial parent will have increased food and entertainment expenses while caring for the child. Additionally, the noncustodial parent may also have increased rent and utilities expenses to accommodate substantial visitation with his or her child2
When the Nevada Supreme Court considered such a situation in Barbagallo v. Barbagallo,3 it stated that an abatement in child support should not be granted unless an “injustice” would occur. This decision applied to an extended weekly visitation by the noncustodial parent. The statutepresumes that there will be a certain amount of visitation by the noncustodial parent, but just how much time was presumed is not clear.4 Barbagallo presents difficult questions, such as how much time, and what kind of time, is appropriate for a court to consider when deviating from the statutory formula. Which parent receives credit for the child during school hours or during the night? It is not an easy question to decide when a noncustodial parent should receive an abatement in his or her child support obligation. This question, however, is arising more often and it is becoming increasingly difficult to answer.
Relatively rare in the recent past, more family court judges are awarding equal shared custody in certain situations. This trend is supported by the recent Nevada Supreme Court decision of Mosley v. Figliuzi.5 The Nevada Supreme Court and the legislature have yet to address the manner in which a district court should set child support in a shared custody situation. The district courts desperately need guidance in this area. This article proposes that for the purposes of calculating child support in equal shared custody arrangements, the parent earning the lesser income should be designated as the primary custodian for setting child support.
Legislative History
The Child Support Enforcement Amendments of 1984 required all states to develop advisory mathematical guidelines to calculate child support awards by October 1, 1987.6 As a result, in 1987 the Nevada legislature enacted NRS 125B.070 and NRS 125B.080, which were modeled after the “Wisconsin Percentage Formula.”7 The Family Support Act of 1988 created a rebuttable presumption that the guidelines represent the proper child support award and that a deviation from the guidelines will be allowed only upon a written finding that the application of the guidelines would result in an unjust or inappropriate mathematical award.8 These child support guidelines were developed because the child support awards being made before enactment of the formulas were severely deficient when compared to the actual economic costs of rearing children. Judicial discretion, unassisted by the presumptive guidelines, often resulted in severely deficient child support awards.9
These federal laws recognized the need for more realistic and equitable child support awards that provide children with a standard of living comparable to that of their non-custodial parent. The congressional mandate for development of guidelines was intended to address several deficiencies in the traditional case-by-case method of setting amounts for child support orders. These deficiencies can be described as:
The statutory scheme enacted by the Nevada legislature in 1987, and the case law that has followed, has alleviated many problems that the federal legislation intended to address in traditional custodial arrangements, i.e., where one party is designated as the primary physical custodian. The guidelines, however, have not adequately provided for the setting of child support in shared custody arrangements. Consequently, these arrangements are susceptible to the same shortfalls that existed before 1987.
Determining Child Support in Shared Custody Arrangements
There is an equal duty of both parents to contribute toward the support of their children in proportion to their respective incomes.11 The needs of the children are, in part, determined by the income level of the parents and the ability of each parent to provide support in proportion to his or her contribution to that income level. “When two people who are legally responsible for a child choose not to live together, neither party should end up with a substantially greater standard of living than the child.”12 The court has a “responsibility to look at the parties appearing before it and to devise an order directing transfer of money which recognizes the situation of those parties and their children.”13
The percentage of income approach reflects a public policy that, after a family separation, parents should spend on their children the approximate percentage of income that they would have had the family stayed together.14 The statutory sum considers the child’s need and the income that each parent should contribute to the financial responsibility of his or her child. The guidelines, in part, are based on the benefit a child will receive by receiving a fair portion of each parent’s income. The statutory formula is a means of calculating child support to maintain the standard of living that the child would have enjoyed if his parents had not divorced.15
Utilizing Statutory Guidelines
The usual application of a child support guideline is with a traditional custodial arrangement in which one parent has primary custody of the children and the other parent has specified visitation. As set noted above, however, shared physical custody arrangements have become more common.16 An equal physical custody arrangement does not necessarily mean that there should not be child support paid by one of the parents.17 Even if one parent has substantial visitation or shared custody, he or she should not be excused from paying child support if the circumstances justify such.18 In some cases, the parties may attempt to posture themselves during the litigation to minimize or maximize their child support award.19
The Nevada legislature was aware of the problem relating to the formula, but took no action on the issue. The original bill provided that the presumptive level of support would apply if the noncustodial parent had physical custody for less than 147 days per year, which is approximately 40 percent of the time. If that time share was exceeded, the guideline amount would be multiplied by the custodial parent’s fractional time and that was the amount payable.20 Arkansas’ guidelines, for example, presume that the noncustodial parent will have visitation of alternating weekends and several weeks during the summer. If the noncustodial parent spends more than 14 consecutive days with the child, the court should consider whether an adjustment is necessary, considering the fixed obligations of the custodial parent which are attributable to the child, and to the increased costs of the noncustodial parent attributed to the child’s visits. The court may award an abatement up to fifty percent of the child support award.21
The Nevada Supreme Court has not addressed the manner in which a district courts should establish child support obligations in shared custody situations. In a shared custody arrangement, the costs for each parent do not decrease proportionately with the reduced time they may have with the children. More likely, there is an increase in the total expenditures for the children.22 The courts must therefore balance the equities between the parents and the impact it will have on the standard of living of the parties’ children while in each parent’s respective custody.
Although Nevada’s child support formula was designed to be used in the traditional situation in which one parent was designated at the “custodial parent,”23 the child support formula as mandated by NRS 125B.070 “does apply in joint and shared custody cases.”24 The Nevada Supreme Court, in Barbagallo, found that:
Applying the Nevada Supreme Court’s Barbagallo analysis to shared custodial arrangements:
Although it may appear that this proposal is extreme and would result in inequitable child support awards, the district courts would retain the discretion to prevent “substantial injustices.” More important, however, this proposal would accomplish the goals of the federal legislation and the decisions of the Nevada Supreme Court: to provide children with adequate support. This author believes that it would also encourage more stipulations providing for the equal shared custody of children.
The court In Re Marriage of Oakes,26 stated that because the legislature has not addressed this situation, “we must construe the child support statute to achieve the overall purpose of the act.” “The overriding purpose of the child support schedule is to insure that children are protected with adequate, equitable and predictable child support.”27 An award of child support less than the statutory presumptive formula amount clearly does not protect the children with “adequate, equitable and predictable child support.”
In Downey v. Rogers,28 the court recognized that the statutory scheme for setting child support did not address every possible situation in which divorcing parents may find themselves. The statute contemplates that children “will primarily reside in one household and not be raised in two separate households.”29 In Downey, however, the trial court recognized the unique custody arrangement, considered alternatives to utilizing the formula, “but decided to utilize the guidelines without deviating therefrom,” recognizing in particular, the greater income capacity of one of the parties.30
Joint physical custody is an increasing trend.31 Shared custodial arrangements should not be discouraged, but there should be an equitable, objective way to establish reasonable child support orders in these cases. In order to preserve the best financial interests of children, for the purpose of calculating child support in an equal shared custody situation, the court should consider the parent with the lesser income to be the primary physical custodian. The court should then begin with the statutory presumption and use the factors set forth in NRS 125B.080 to consider any deviation based on the enumerated factors. This provides the court with an objective starting point from which to deviate, rather than forcing the court to begin with an arbitrary figure.
Alternatively, the court may also consider a proposed formula by which each parent’s child support obligation is calculated as if each parent is the secondary custodian, and then “cross-crediting” the amounts so that the parent owing the higher obligation would be required to pay a net child support obligation to the other. Several of the family court judges in Clark County use this formula. The problem with methods such as this, however, is that they often result in support orders that are “too low” and that do not provide “adequate compensation to the lower income parent for actual child rearing expenditures.”32
The congressional mandate for development of guidelines was intended to address deficiencies in the traditional case-by-case method of setting amounts for child support orders.33 These deficiencies included inadequate and inconsistent orders causing inequitable treatment of parties in similarly situated cases.34 Deficient orders that result from shared custodial arrangements. Following dissolution of marriage, the standard of living of women and their children fall 73% while that of the husbands increases 42%.35
One may argue that any “application of the guidelines to a true 50-50 custody arrangement must take into account the fact that each party has the children half the time, and is presumed to expend 50% of the statutory rate of support for the children while they are in their custody.” Each parent will likely spend the same percentage of their incomes on their children. While each parent will arguably spend the same percentage of their income on their children, the parent earning the greater income, will have a larger number of actual dollars to spend on his or her children.
Without the adoption of a means of calculating child support in shared custody arrangements, the trial courts will simply continue setting child support in an arbitrary manner. A guideline that allows for an award to be set on a case-by-case approach undermines the goals of consistency and higher support awards.36 The courts should adopt a policy which will provide children in equal shared custody situations adequate support regardless of which parent with whom they reside.
Conclusion
Until the legislature acts to create a method for calculating child support in equal shared custody situations, the courts should consider the parent with the lesser income in such a situation to be the primary physical custodian. The courts should then begin with the statutory presumption and use the factors set forth in NRS 125B.080 to consider any deviation based on the enumerated factors.37
1. USA Today, “More Kids Live In Changing Family,” August 30, 1994.
2. See Sjolund v. Carlson, 511 N.W. 2d 818, 822 (S.D. 1994).
3. Barbagallo vs. Barbagallo, 105 Nev. 546, 779 P.2d 532, 786 P.2d 673 (1991).
4. Conversely, because the statute presumes that the noncustodial parent receives some level of basic visitation, if the noncustodial parent does not exercise any visitation, should this be a factor in increasing support based on the fact that the custodial parent has a greater burden? An Arkansas court held that “assessing economic penalty for not exercising visitation would be an indirect means of ordering visitation.” The dissent, however, opined that the guidelines contemplate visitation with the noncustodial parent every other weekend for two days. If this visitation is not exercised, this could mean an additional 66-82 days of care that the custodial parent must provide and finance. Arkansas provides for an abatement for visitations in excess of 7 consecutive days.
5. Mosley v. Figliuzi, 113 Nev. ___, 930 P.2d 1110 (Nev. Adv. Op. No. 8, January 3, 1997).
6. Pub. L. No. 98-38, §18, 98 Stat. 1305.
7. See Nevada Child Support Enforcement Commission Minutes, June 23, 24, 1986, City Hall, Reno, Nevada, at page 3.
8. Pub. L. No. 100-485, 102 Stat.
9. See Williams, Guidelines For Setting Levels of Child Support Orders, 21 Fam. Law Quart. 281, 283 (1987); McDonald, Child Support Guidelines: Formula To Protect Our Children From Poverty and the Economic Hardships of Divorce, 23 Creighton Law Review 835 (1990); Goldfarb, Child Support Guidelines: A Model For Fair Allocation of Child Care, Medical, And Educational Expenses, 21 Fam. Law Quart. 335 (1987); U.S. Department Of Health And Human Services, Administration For Children and Families, Office Of Child Support Enforcement, The Treatment of Multiple Family Cases Under State Child Support Guidelines, July, 1991 pages 1-4 (hereinafter “Treatment”) citing U.S. Bureau of the Census, U.S. Dept. of Commerce, Divorce, Custody and Child Support, Current Population Reports, Series P-23, No. 84 (1979), U.S. Bureau of the Census, U.S. Dept. of Commerce, Child Support and Alimony – 1983, Current Population Reports, Series P-23 No. 141 (1985); U.S. Bureau of the Census, U.S. Dept. of Commerce, Child Support and Alimony: 1985 (Supplemental Report), Current Population Report, Series P-23, No. 154 (1989).
10. See Williams, Guidelines For Setting Levels Of Child Support Orders, 21 Fam. Law Quart. 281, 282, 326 (1987). See also Advisory Panel On Child Support Guidelines, Development Of Guidelines For Child Support Enforcement, National Center For State Courts I-3, 4 (1987) (hereinafter “Advisory Panel”).
11. NRS 125B.020(1).
12. Note, An Introduction To California’s Child Support Guidelines, 3 San Diego Justice Journal 551, 555 (1995).
13. Id.
14. See Treatment, supra note 9.
15. See Advisory Panel at I-3, supra, note 10; Sommer v. Sommer, 323 N.W.2d 144 (Wis. App. 1982).
16. Advisory Panel at II-55.
17. Downey v. Rogers, 847 S.W.2d 63 (Kent. App. 1993).
18. Lara v. Lara, 495 N.W.2d 719 (Iowa 1993).
19. Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532, 549, 786 P.2d 673 (1991).
20. See 1987 Legislative History of A.B. 424 at 2. See also Child Support Statute Review Committee Report, State Bar of Nevada Family Law Section, August 1, 1992 at 36, note 72 and accompanying text; Springer, Some Thoughts On Child Support and Community Property Division, State Bar of Nevada, Third Annual Family Law Spring Showcase, Tonopah, Nevada, April 3-4, 1992, at page 2.
21. In Re Guidelines For Child Support, 863 S.W.2d 291 (Ark. 1993).
22. See Advisory Panel at II-59.
23. Barbagallo v. Barbagallo, 105 Nev. 546, 548, 779 P.2d 532 (1989).
24. Id. at 548-9.
25. Barbagallo at 552.
26. 861 P.2d 1065, (Wash. App. 1993)
27. Id. at 1067.
28. 847 S.W.2d 63 (Kent. App. 1993).
29. Id. at 64
30. Id. at 65.
31. Melli, The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence, 31 Houston L. Rev., 543, 552 (1994). See also Mosley v. Figliuzi, 113 Nev. ___, 930 P.2d 1110 (Nev. Adv. Op. No. 8, January 3, 1997).
32. Advisory Panel at II-58.
33. A reading of NRS 125B.070 and the legislative history of A.B. 424 [Nevada Legislative History, 87-9, A.B. 424 of the 64th Session, Child Support] indicates that the intent of the legislature was to comply with the federal mandate which was to adopt guidelines that would alleviate the disgrace of inadequate child support orders.
34. See Williams, Guidelines For Setting Levels of Child Support Orders, 21 Fam. Law Quart. 281, 282, 326 (1987). See also Advisory Panel at I-3, 4.
35. Note, Child Support Guidelines: Formulas To Protect Our Children From Poverty And The Economic Hardship Of Divorce, 23 Creighton L. Rev. 835, 836 (1990) citing Brackney, Battling Inconsistency and Inadequacy: Child Support Guidelines In the States, 11 Harv. Women’s L.J. 197, 199 (1988).
36. Note, Child Support Guidelines: Formulas To Protect Our Children From Poverty And The Economic Hardship Of Divorce, 23 Creighton L. Rev. 835, 854 (1990), citing Goldfarb, Child Support Guidelines: A Model for Fair Allocation of Child Care, Medical, and Educational Expenses, 21 Fam. Law Quart. 335, 336 (1987).
37. The author argued this position before the Nevada Supreme Court on January 12, 1998 in the case of Wright v. Osburn, case number 28714, which is currently under submission by the court.