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I was awarded joint equal custody of my children, but in practice I have them with me more. Their mother’s income is at least equal to (if not greater than) mine. Could I be entitled to child support?

This is a good question and a question that comes up often. I will answer your question as it would apply to the law of Utah, which is the jurisdiction where I practice divorce and family law.

In many jurisdictions, who pays child support and the amount of child support that is paid is based upon both 1) the number of overnights the children spend with each parent and 2) the respective incomes of each parent.

Typically, this means that if the children spend more overnights with one parent than another, then the parent with fewer overnights will likely end up paying child support. This is why—aside from the fact that parents often want to spend as much time as possible with their children—the child custody and parent time award can often be such a highly contentious issue.

Some people believe that if the parents are awarded joint equal physical custody of their children (i.e., the children spend equal amounts of time with each parent), then neither parent pays child support to the other. while it is possible for neither parent to pay child support where the parents exercise joint equal physical custody of their children, it is not always the case. Why?

Because, as I stated above, child support is based upon not only the number of overnights the children spend with each parent, but also upon the parents’ respective incomes. If dad makes two or three times as much money as mom does, the law in Utah provides that dad will still end up paying mom some child support, even if mom and dad exercise joint equal physical custody. The reasoning behind this policy is that the children’s lifestyle needs to be maintained at both parents’ homes, and if one parent’s income is substantially less than the others, then that parent won’t be able to provide the same kind of lifestyle to the children as the more affluent parent can. And so this is why the more affluent parent will pay some child support to the less affluent parent, even if the parents were awarded joint equal physical custody.

Bear in mind, however, that the more overnights the more affluent parent has with the children, the less child support that parent will pay. By way of a quick example: a parent who has 90 overnights with the children annually will pay substantially more child support than if he/she has the children in his/her care and custody 182.5 overnights annually. and this makes sense. The more overnights a parent has with the children, the fewer overnights the children are spending with the other parent, resulting in the other parent spending less money housing and feeding the children.

So what happens if the parents are awarded joint equal physical custody, but then one of the parents foists the children on the other co-parent, such that this parent winds up caring for the children more than half of the year? Most loving parents will not resent taking care their children, but they may be upset about the fact that the child support award does not reflect the de facto child custody arrangement.

If and when one of the parents who was awarded joint equal physical custody is enjoying the lower child support obligation benefits of joint equal custody without actually exercising joint equal physical custody, that is unfair because the parent who is exercising more physical custody and providing more physical care for the children is, under Utah law, deserving of child support. So what can a parent in this position do?

The way the law is designed, the parent who has had extra custody of the children foisted upon him/her by the parent who is unable or unwilling to exercise joint equal physical custody can petition the court to modify the child custody and child support awards to reflect these changed circumstances. The petitioning parent can ask the court 1) to modify the child custody award so that it reflects the actual amount of time the children are spending with each parent, resulting in the non-compliant parent’s loss of the joint equal custody award and 2) to modify the child support award so that it awards to the primary custodial parent the amount of child support to which that parent is entitled based upon the number of overnights the children spend with each parent. I chose my words carefully here. Note that I wrote that this is the way the law is designed to work. This isn’t always the way the law functions, however.

Far too often when a parent who was awarded joint equal physical custody stopped exercising joint equal physical custody, but still insists that the child support obligation remain based on the joint equal physical custody award, and then the other parent petitions for a modification of the child custody and child support awards, what happens is this: as soon the noncompliant parent receives notice of a request by the other parent for a modification of the child’s custody and child support awards, the noncompliant parent immediately becomes compliant and immediately and faithfully resumes the exercise of joint equal physical custody. Then, by the time the case gets to trial (which is usually about a year and half after the petition was filed in court), the noncompliant parent’s argument is one or both of the following:

  • “See, I’m not noncompliant. Yes, I concede that there was a brief period where I was not compliant, but I was never and as noncompliant as the other parent is falsely claiming. Besides, I’ve repented, and now everything’s back on track. Clearly, there is no reason to modify the child custody and support awards.” And these argument works more often than not.
  • “How dare you accuse me of being noncompliant? Allegations that I have not been exercising joint equal physical custody are lies! My children are my first priority, and I treasure every moment I spend with them. I would never fail to exercise joint equal custody! If ever I have not exercised my joint equal custody time with our children, it is because the other parent is withholding the children from me!

[Now before I go any further, please understand that there are plenty of joint equal custodial parents who, being very unhappy with the joint equal physical custody arrangement (because they wanted sole custody of the children) will try to sabotage the joint equal physical custody award by lying and claiming that the other parent is noncompliant. So just because a parent who is responding to a petition to modify custody and child support denies the allegations against him/her does not mean that such a parent is lying.]

In my experience, Utah courts are reluctant to modify joint equal custody awards unless, by the time you get to trial, the accused parent is clearly still not exercising joint equal physical custody, or at least has been proven not to have exercised joint equal physical custody consistently.

Bottom line: If you and your ex were awarded joint equal physical custody of your children, but your ex is failing and refusing to exercise joint equal custody, a petition to modify the custody and child support awards will not succeed unless you have overwhelming amounts of proof that 1) your ex is not exercising joint equal physical custody as of the date you petition to modify; 2) your ex has consistently not been exercising joint equal physical custody for a substantial period of time (at least six months, in my opinion— if you try to petition to modify custody after three or four months, that may be deemed too short a period of time to establish a pattern of noncompliance); and 3) you can prove that you are not preventing your ex from exercising joint equal physical custody (because if your ex is failing and refusing to exercise joint equal physical custody, the only defense he/she may have available to him/her at that point is to falsely accuse you of withholding joint equal custody from him/her, so be prepared to prove that this is not the case—make sure you have overwhelming evidence in your defense, showing that you are not standing in the way of the exercise of joint equal physical custody and are in fact doing everything you can to encourage and foster the exercise of joint equal physical custody by your ex).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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