When 0% Equals 50% In Custody Timeshare Calculations

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Family law court can be a confusing place, as can be the process by which family law judges can, or cannot, order things. Take child support for example. The court is supposed to determine how much time the child spends with each parent, put those percentages into a computer program along with how much income each parent gets, and then accept the computer generated child support number as the law.  But is it really that rigid?

A recent unpublished opinion out of Humboldt County demonstrates why — in my opinion — it is so important for family law judges to be able to exercise their discretion.  In other words, why we let the judge do what she thinks is right, within the broad scope of the Family Code.

Donald and Donna were divorced.  They had been co-parenting their two child successfully for years; and the two kids benefitted from having a flexible schedule that allowed them to spend liberal amounts of time with both parents. Part and parcel of this arrangement was a child support order based on a 50/50 timeshare.

Unfortunately things changed. Mom’s flexibility went way down. If Dad missed a day with the kids, Mom would not let him make that day up. The kids weren’t encouraged to be with their Dad as in the past. Communication between the parents became more difficult.  Simultaneously their daughter began to suffer from depression. She withdrew into a shell, disengaged, and started spending less time at her Dad’s house.  There is nothing in the opinion to suggest that she was mad at dad, or did not want to be with him; just that she had stopped going over to his place.  They still talked, and saw each other — but to help his daughter, Donald didn’t force the issue and stepped back while she spent all of her time at her Mom’s.

The parties made their way back to court, and the judge issued orders for child support. Donna argued that California’s child support guidelines required that “Guideline child support” should be calculated based on a 0% timeshare for Dad and the daughter (all statutory references are to the Family Code). The court calculated support based on the old 50/50 arrangement. The appellate court said that was the right thing to do. And I agree.

Section 4053 sets forth a number of principles, foremost among them being the protection of the child’s best interest: ‘The guideline seeks to place the interests of children as the state’s top priority.’ (§ 4053, subd. (e).) . . . [D]eparture from the standard child support formula may be appropriate when application of the formula ‘would be unjust or inappropriate due to special circumstances in the particular case’ (§ 4057, subd. (b)(5)), so long as the variance is consistent with section 4053.

The court also explains:

The timeshare component of the guideline calculation is not determined by the amount of time a parent has physical custody, but by calculating the approximate percentage of time that a parent has or will have primary physical “responsibility” for a child.

The court can deviate from guideline if there are special circumstances.  If the child has special physical or emotional needs a minute by minute tracking of custodial time may not be int the child’s best interests.  In this case the daughter was going through some tough times.  Dad loved her enough to pull back.  He sacrificed his time with the girl until she got to a better place.  Of course, mom is entitled to argue that because she had the daughter full-time she was carrying greater expenses, and thus needed more support.  She did make that argument, and the trial judge decided that it went against the best interest of the daughter.   After all, the alternative would have just forced dad to exercise his time, which may not have been what was best for the daughter.  The judge in this case needed the ability to exercise some discretion, and the opinion explains that the opportunity for discretion does exist under the law.

Please click here to read the Iverson opinion.

Be sure to visit Hardinglaw.com for more information on child custody, child visitation, and child support in California.

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