All in the Family: Child support rules don’t always add up to fairness

Math. It’s why we went to law school. It also provides a system of numbers that relate to one another in even steps. Minnesota’s child support guidelines ignore that concept and offer a three-tier approach to parenting expense adjustments. Support payors can find themselves labeled as uninvolved, equally involved, or somewhere in between. Trouble is, the members of the “somewhere in between” crowd don’t all look alike.

Under the old child support statutes, noncustodial parents were ordered to pay a percentage of their net monthly income to the custodial parent to satisfy their child support obligation. Two problems arose.

First, some parents were implicitly encouraged to litigate in an effort to secure an award of “joint” physical custody. That label would trigger what was known as the Hortis-Valento formula, resulting in a substantial decline in the amount of child support owed.

Second, all noncustodial parents were treated equally. A parent who exercised substantial parenting time with a child was treated the same as an absent parent. The involved parent was cheated, in a sense, by the fact that their expenses associated with the care of a child (housing, food, transportation, clothing, gifts, supplies, entertainment) were not taken into account as part of the support calculation.

The 2007 amendments to the child support statutes attempted to address both dilemmas, by focusing on parenting schedules (not labels) and offering a parenting time expense adjustment.

The trouble is that the statute, in its current form, continues to treat parents who exercise 10 percent of the available parenting time the same as a parent who exercises 43 percent of the available parenting time. Both parents are entitled to the same 12 percent parenting expense adjustment, yet the expenses each incurs in caring for their child is likely to vary widely.

The parent with 43 percent of the available parenting time cares for a child for 6 of 14 overnights. Quite often the only reason that parent doesn’t have the child for 7 of 14 overnights involves returning the child to the other parent on Sunday evening, rather than Monday morning, following their weekend. The claim is routinely made that it is best for children to start the school week at their primary residence.

The debate really isn’t about whether that is, indeed, what’s best for a child. Rather, the issue is whether that evening drop-off should cost the returning parent a substantial sum in ongoing basic support payments. We’ve been involved in many situations in which a Sunday evening drop-off results in a $1,000 per month child support swing.

We’ve negotiated settlements in which the parties agreed to compromise by calculating basic support at the midpoint between “full” support and support calculated based on equal parenting time time. Seemed like a fair approach. Our experience in asking judges to adopt a similar methodology in disputed cases, however, has been haphazard.

In some situations, judges seem willing to embrace the term “guideline” as affording wide discretion on the issue of support. In doing so, they accept the notion that a parent with, for example, 43 percent of the available time is “close enough” to 45.1percent, so as to justify a significant downward departure in ongoing basic support payments.

Others, however, take the view that the support guidelines serve as a mandate on calculation. We’ve encountered a number of judges who are unwilling to deviate from the guideline calculation even if a parent is close to 45.1 percent, citing the “plain language” of the support statute.

The irony in the current parenting expense adjustment formula is that a 45.1 percent threshold is used to trigger a massive child support reduction. But, 45.1 percent cannot be evenly divided by 7 or 14 days.

Much credit goes to the custody dialogue group, formed after Gov. Mark Dayton vetoed a bill that created an equal parenting time presumption in 2012. Members of the group include individuals from all sorts of interest groups — matrimonial lawyers, domestic abuse advocates, men’s rights advocates and legislators. Working in cooperation, they were largely responsible for the overhaul to Minnesota’s custody and parenting time statutes earlier this year.

The group has already indicated that revisions to the child support statutes will be at the top of the list in 2016. There is a sense that their work may be complete if adequate changes to Minnesota’s child support guidelines are signed into law. As the group takes up the issue, the starting point appears to be a more graduated approach to calculating the parenting expense adjustment.

We are suggesting a very specific approach that provides an offset to basic support using seven step-downs, rather than the current three-tier system.

Under the current statute, if the parties share an equal access schedule, basic support is calculated by a PICS application to the combined support amount listed in Minn. Stat. sec. 518A.35, Subd. 2. In our experience, clients are willing to accept that outcome. Let that figure stand as the minimum support paid — the baseline.

Everyone seems to agree that a parent who does not exercise any parenting time should not receive any parenting expense adjustment. Full support is paid. Let that figure serve as the cap.

The Legislature has endorsed a 12 percent credit for parents who exercise at least 10 percent of the available time with a child. A parent who exercises 10 percent of the available time with a child is not much different than a parent who exercises 7 percent of the available time with a child. Parents who exercise 1 of 14 overnights are exercising 7 percent of the available parenting time. Let’s suppose they are afforded a 12 percent credit against their basic support obligation.

A simple approach to the parenting expense adjustment for parents exercising 2, 3, 4, 5 or 6 overnights in a 14-day period? Increase the adjustment by 12 percent per day, and provide for a 24 percent, 36 percent, 48 percent, 60 percent or 72 percent credit, respectively, off the cap. If one day every two weeks is worth 12 percent, aren’t three days every two weeks worth three times as much?

We’ve run the numbers. Here’s what we discovered, using 12 different income scenarios:

So long as the gross monthly income of each parent is within approximately $2,500 of each other, the “12-percent-per-day” reduction results in a consistent step down all the way to the baseline support amount.

If the income differential of each parent is greater than $2,500 per month, but less than $4,000 per month, the per-day credit must be reduced to 10 percent in order to achieve a consistent step-down. Absent this lower credit amount, baseline support (which presumes equal parenting time) is higher than a parent with less than equal parenting time.

For parents whose income differential is greater than $4,000, an 8 percent per day credit leads to a consistent step-down in support payments.

Naturally, the foregoing formula may not fit every case. There are situations in which a parent lives out of state, for example, and spends little routine time with a child, but exercises a large amount of time during the summer months. The Legislature could address that scenario by allowing support payments to be recalculated (or even suspended), during the periods of extended parenting time.

There are many issues up for debate concerning Minnesota child support statutes in 2016, including the division of a child’s extracurricular activity fees, a method to apportion the value of a child’s health insurance premiums if they are part of a “family” plan, and the codification of the “child’s checkbook” concept often utilized by joint physical custodians in place of guideline support calculations. The elephant in the room, however, involves finding a solution to the inherent inequity in the current parenting expense adjustment formula. A lock-step approach would do nicely.