Monday, February 23, 2009

Child Support and Child Custody - Intertwined but Separate.

In Pennsylvania, child custody determinations are made using a Best Interest of the Child standard. However, child support is calculated using a standardized guidelines calculation. What's the difference? In child custody cases the court looks at the facts of each individual case to make a determination. In child support cases, the court simply applies the incomes of each parent to a formulaic analysis to determine how much support the non-custodial parent owes the custodial parent. The support award determined by the guidelines is a rebuttable presumption and the court must consider the "special needs and obligations of the parties." This means that there is room for some deviation in child support based upon the facts of a specific case. For instance, adjustments to support include allocation of child care expenses, health insurance premiums, unreimbursed medical expenses, private school tuition and summer camp. In addition, the parent occupying the marital residence may be entitled to assistance from the other parent for up to 50% of the mortgage payment, real estate taxes, and homeowners' insurance. The child support guidelines also allow for adjustments based upon substantial or shared physical custody (when the children spend 40% or more of their time with the non-custodial parent) and divided or split physical custody (when one or more of the children reside with each party).

But the guidelines don't specifically provide for additional support when a non-custodial parent spends less than a certain percentage of time with the children or fails to spend the designated time with the children. The underlying theory behind the refusal to penalize a non-custodial parent for failing to exercise his or her right to custody is that it is not in the best interest of the children to force a disinterested parent to choose between spending time with the children or paying what, in essence, would be a "fine" in the form of additional support for not spending time with the children. In the broad application of the law, it makes sense. There are certainly parents out there who would take the children for the weekend simply to avoid having to pay additional money, yet spend no real time with their kids and perhaps even mentally or physically abuse the children out of anger for being inconvenienced by them.

But what of the non-custodial parent who exercises (or fail to exercise) custody as a means of controlling the custodial parent? The parent who is or wants to be a good and decent parent to the children, but who has not yet lost the anger or hatred toward the ex-spouse and wants to punish the ex-spouse somehow. For example, let's say Mom has been awarded primary custody of the children and Dad has rights of partial custody. On a weekend that is Dad's weekend, Mom must provide Dad access to the kids or risk being in contempt of a custody order. But what if Dad finds out that Mom has big plans that weekend and he wants to stop her from having fun. If Dad decides that he doesn't want to see the children, he can choose not to exercise his right to partial custody, generally without penalty. Without a doubt, Dad's actions will have a negative impact on the children who surely will be disappointed having looked forward to seeing Dad. If Mom had plans that weekend and she must get a babysitter to tend to the children or cancel her plans. Who should pay the babysitter? Dad - because it was his weekend and the sitter is essentially covering for Dad. Or Mom - because she is the custodial parent? No matter who pays the children are harmed by a non-custodial parent's failure to exercise custody because there is very likely going to be more animosity between the parents and more fighting.

Too often parents use custody as a means to get even with the other parent, but fail to realize that the people harmed the most by these types of games are the children.

Audrey Buglione is a family law attorney and single mom who lives in Harrisburg, Pennsylvania with her three children. Her office is located in Dauphin County. She assists clients seeking divorce, child custody, child support, spousal support and alimony pendente lite in Dauphin, Cumberland, Lancaster, York, Perry, and Lebanon counties. Contact a Audrey Buglione for a no-obligation confidential consultation.

1 comment:

  1. What would happen in the case of a non-custodial parent showing up late for a predetermined visit? If the custodial parent has an appointment scheduled reasonably far apart from the agreed upon time of pickup, and the non-custodial is a no-show, what could happen if the custodial parent (unable to find a sitter in such short notice) leaves for the appointment taking the children (ages 7 and 9) with her? And what recourse does the non-custodial parent have if he arrives during the time the children are out with the custodial parent?


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