One of the things that I have seen in the family law context is a parent who has more wealth seeking to have equal/joint custody (called residential time in Washington) in order to reduce the amount they pay in child support. While there are times where a parent really wants equal time with their child, all to often it seems to be solely a ploy for reducing the child support obligation. After orders are entered, the child ends up spending a significant amount of time with the other parent, but the parent with the additional residential time is not receiving additional child support for the additional expense. It has made me suspicious of joint custody arrangements and hopeful that courts will be cautious in granting significant deviations based on shared custody, especially because a parenting plan is difficult to modify, so even if a parent tried to modify based on the practice of not exercising joint custody, it would be difficult (compounded by the probability that as soon as the parent sought to modify, the other parent would then try to exercise joint custody and seek to block the modification).
A recent Division III case that is unpublished (meaning it is not meant to be used as precedence/relied upon for future decisions), addressed the issue of deviating for child support based on equal custody. In In re Marriage of Langford, the trial court did not grant a deviation for additional residential time. The Husband appealed the trial court’s ruling, arguing that the trial court abused its discretion in not granting the deviation for residential time. The appellate court disagreed and upheld the trial court’s order.
The Appellate Court noted that the statue allows that a court may deviate from the standard calculation for the purpose of recognizing increased expenses of the obligor parent when residential time is shared, BUT this deviation cannot leave insufficient funds in the household receiving the support to meet the basic needs of the child.
The attorney for Father argued that court should apply the Arvey formula. The Arvey formula is a formula that is used when parents have split custody (two children and one child resides with each parent). The Court noted that the Washington State Supreme Court has rejected the use of the Arvey formula for equal residential place in shared custody placement in State ex reI. M.M.G. v. Graham, 159 Wn.2d 623,632,152 P.3d 1005 (2007). In that case, the court found that the statute gives trial courts discretion to deviate from the standard calculation and a new formula is not necessary and in fact, thwarts the legislature’s directive that courts consider the actual increase and decrease in expenses brought about by an obligor parent having a significant amount of residential time. Citing: In re Marriage of Schnurman, 178 Wn. App. 634, 636,316 P.3d 514 (2013), review denied, 180 Wn.2d 1010 (2014) and State ex reI. MMG. v. Graham, 123 Wn. App. 931, 939, 99 P.3d 1248 (2004), a.ff’d in part, rev’d in part on other grounds, 159 Wn.2d 623, 152 P.3d 1005, abrogated on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007).
The dissenting judge in this case had an interesting point. He argued that historically, the obligor parent is based on whom the child(ren) reside the majority of time and that the majority’s reasoning made the obligor parent, the parent who had the greater income. I disagree with his argument (the majority did not address his argument), because in this case, the parents had equal time. In a situation like this income is essentially the tie-breaker in determining who the obligor parent is and there is no danger that a parent who has the children 70% of the time will suddenly become obligated to pay child support because of a greater income.