New Child Support Guidelines - "Negative Support Orders"
Negative support orders are appropriate under the current guidelines. There were a series of appeal cases under the title Grant v. Hager (first Court of Appeals opinion here, Supreme Court opinion here, and second Court of Appeals opinion here) that addressed whether such an order is allowable. After going back and forth it was decided that courts should be allowed to order the custodial parent to pay the noncustodial parent support if the economics and parenting time suggest that such a payment is equitable. However, such orders were not presumed, but rather, were allowable. In legal matters, this is an important distinction as having a presumption gives a movant big advantage. Now, negative support orders will be presumed to be the proper amount of support.
The Court of Appeals discussed the policy concerns involved:
There are advantages and disadvantages to allowing child support pay-ments to run from a custodial to a noncustodial parent. On the one hand, to do so encourages a noncustodial parent to participate more in his or her children’s lives following divorce, and it results in more similar living environments for children when they go from one parent’s home to the other’s. On the other hand, it also has the potential to increase custody disputes by providing an incentive for a cus-todial parent to fight shared parenting time, and it takes money from the custodial parent, thereby reducing the likelihood that he or she will be able to provide a home more similar to that which the children would have enjoyed had the marriage remained intact.
With the new amendments the former policy interest won out, as the Supreme Court amended the guidelines with the following langugage - The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support, if application of the parenting time credit would so require. For example, if the custodial parent makes $100,000 annually, and the noncustodial parent makes $20,000 annually, and the noncustodial parent exercises enough parenting time with the child, there will be a negative support order. To figure out if this change might effect you, contact an attorney.
Since negative support orders are allowable under the current guidelines, and we know they will mandated under the guidelines on January 1, 2010, expect attorneys and courts to start applying this change now.
For more on the new guidelines, see the September 16, 2009 blog posting.