Family Affairs: Court discretion and the vagaries of child support

 By Marie Matyjaszek

If I had a dime for every time child support interfered with a consent order being signed, I wouldn’t be sitting here writing this article for you (or maybe I would, but it would be from a beach in Hawaii). Child support is routinely a hotly contested issue during mediation, divorce and custody proceedings. In cases where the custodial parent receives government assistance (food stamps, Medicaid, or cash), this is typically the only reason the action is filed in the first place. The parents may be content as to their custody and parenting time arrangement, but the state will force an action and sue the other parent to establish a child support obligation. Often times these orders for support award the mother custody, and award the father vague parenting time, simply stating “as agreed upon between the parties.” There is, however, a definite child support obligation spelled out in the order.
Many people believe that parenting time and child support are tied together, and they are — to an extent. A parent’s number of overnight visits with the children is a component to the Michigan Child Support Formula (MCSF) calculation, along with other factors like the parties’ incomes. However, a parent can be ordered to pay child support even if he never sees his child. Conversely, a parent can fail to pay support and still exercise all of his parenting time (assuming he has parenting time of course). The separation of one’s child support obligation and parenting time rights is clearly delineated in the case Rzadkowolski v Pefley, 237 Mich App 405 (1999).
In the Ewald v Ewald, 292 Mich App 706 (2011) case, the father appealed the trial court’s calculation of his child support obligation. The parties had two children, a son and a daughter. The son primarily resided with the dad and the daughter primarily lived with the mom. Dad saw the daughter regularly for parenting time, but mother and son stopped seeing each other. Mom did not take any action to change or enforce her parenting time (or lack thereof) with the son.
The trial court determined that the father had a hand in the estrangement of the son from the mother, and thought it unfair to not award the mother overnight credit (with the son) for purposes of calculating child support. In doing so, this increased the father’s child support obligation.
The Court of Appeals vacated the trial court’s child support decision, noting that “the trial court erred because the Support and Parenting Time Enforcement Act does not provide for the enforcement of parenting-time rights by adjusting child support obligations.” If you remember, one of my past articles discussed how one’s child support obligation can continue even if parental rights are terminated.
Courts do have discretion in awarding child support, but there are specific deviation factors set forth in the MCSF that outline what can be used as a reason for deviation (see MCSF §1.04(D) & (E)). The trial court’s problem in the Ewald case was that alleged parental interference with visitation wasn’t one of them.
The MCSF also dictates that child support be calculated by crediting “a parent for overnights a child lawfully and actually spends with that parent including those exercised outside the terms of the currently effective order.” See MCSF §3.03(C)(4)(a) & (b). So, if the last entered parenting time order gave dad 182 overnights per year, but he since moved to California and now only sees the minor child a few times a year, child support can be recalculated based on his new (and fewer) yearly overnights, without a change in the parenting time order occurring first.
I hear a lot of griping when this is explained, but think about it — why should a person receive a reduced support amount based on what is essentially a now inaccurate court order? The other parent is providing the child with the daily necessities more frequently due to the decrease in parenting time.
It is said that money is the root of all evil. I don’t know if that’s true, but it sure is the cause of a lot of court hearings.
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Marie Matyjaszek is a family law attorney whose blog site is: http://legalbling.blogspot.com. She can be reached by e-mailing her at matyjasz@hotmail.com.

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