Many people make the mistake of too closely associating child custody and child support. There is a common misconception that if you pay child support, your ex somehow “owes” you visitation time. Or conversely, the recipient of child support might be tempted to “withhold” the child from the other parent if that parent falls behind on child support. These misperceptions can result in parents feeling like paying child support is the equivalent of paying to spend time with their child.
But the fact is, child custody and child support are not that directly related to one another. Although parenting time is a factor the courts use to help determine the appropriate amount of child support one parent might owe the other, the correlation is not as strong as some assume. Today we’ll take a look at what you can do about lowering your child support if you cannot pay it. We’ll also look at whether asking to modify your custody plan will likely result in a reduction in support obligations.
Child Support Basics
All parents have a legal obligation to support their children. This obligation is codified in Tenn. Code Ann. 34-1-102. In child support orders, the judge will name the primary residential parent (PRP) and the alternate residential parent (ARP). The PRP is the parent that has a majority of parenting time with the child, and who typically is the recipient (obligee) of child support. The ARP usually has less parenting time and pays child support (obligor) to the PRP. When making child support determinations, courts take the total of both parents’ incomes into consideration.
Tenn. Code Ann. 36-5-101(e) discusses the very specific child support guidelines used in our state.
The five most important factors that judges will weigh when coming up with a child support amount are:
- The income of each parent;
- The number of days the child spends with either parent per year;
- The amount either parent contributes to the child’s healthcare and medical expenses;
- The amount either parent pays for childcare; and
- The financial obligation either parent has to other children.
The calculation begins with the income of each parent. Then it moves on to the amount of time the child spends with either parent. The law presumes that the PRP who spends more time with the child will carry a greater financial burden than the ARP. Typically, this means that the ARP becomes obligated to pay child support to the PRP.
However, as stated previously, the correlation between custody and child support is not always so direct. For instance, suppose that Sue and Sam are Timmy’s parents. Timmy spends the majority of his time with his mother, Sue. But Sue makes a lot more money than Sam. In this case, even though Sue is the PRP, she may actually end up having to pay child support to Sam if their income disparity is great enough to justify it. Again, multiple factors go into child support determinations, and custody is only one of those factors.
Modification of Child Support
The child support guidelines are updated every couple of years, so it is important to consult an experienced family legal matters attorney before attempting modification of a support order. Your lawyer will know what the current state of the law is. Knowing the updated factors is important because one of the elements that are subject to change is the number of nights the child spends with each parent and how that relates to child support.
To bring a petition for modification of child support, you must show that there is at least a 15% variance between the current order and the proposed order. In other words, you must gather financial information for yourself and your ex and do the math. Using the guidance of your lawyer and the child support guidelines worksheet, you can plug in the numbers and see if the end result gives you the margin of variance you need to bring the petition.
When completing the worksheet, the number of days each parent spends with the child does factor into the equation. The court determines what percentage of the child’s financial support should come from each parent according to the child’s needs and the parent’s ability to pay. The percentage of support from either parent can go up or down according to parenting time. If the ARP spends less than 69 days per year with the child, their child support percentage will likely increase. The percentage is reduced if the APR spends more than 92 days with the child.
This fact may make the APR who spends less than 69 days with their child want to petition for more parenting time. And while you can work with an attorney to alter custody, proceed with some caution.
Best Interest of the Child
If you are seeking a change of custody, we offer you a word of advice: Be careful of your motives. Always keep in mind that the court’s paramount concern is the best interest of your child.
So before you think about modifying your parenting plan, check your motives. It is not necessarily a good idea to petition the court to alter custody as a means of getting child support lowered. In other words, saving money should not be your goal. If you have a legitimate reason for wanting a change in custody, then you can petition for that change. But if the only reason you are attempting to alter your child’s living arrangements is your own financial benefit, your efforts may backfire.
Again, the judge cares about the best interest of your child. If you have spent only 12 days per year with your child for the past three years and suddenly petition the court for 100 days per year, the court may question your motives. And if the judge sees a simultaneous petition to lower child support, they will likely see that your actual motive is saving money. Depending on the judge, they may not take too kindly to this. Some judges may hold it against you if you seek to disrupt your child’s living arrangements as a means to improve your financial situation.
However, if child support is too burdensome, you do have options.
The seasoned family legal matters lawyers at Batson Nolan PLC have decades of experience helping those saddled with suffocating child support obligations.
We know that you have your child’s best interest at heart. But even so, you may simply not be able to cover your bills and pay child support that is too high. In business since 1860, our attorneys have over 100 years of combined experience. So we know how to fight for the results you need. Come and see us, so we can look over your case and discuss the best way to move forward in modifying your child support. Call us today or contact us online to set up your initial consultation in our Clarksville or Springfield office.