Can My Ex Spouse Avoid Paying Child Support By Requesting Shared Physical Custody?

We are often asked, “Can my ex-spouse avoid paying child support by requesting shared physical custody of our children?”  The short answer is no.  One parent often pays child support even when parents share custody.  Read on to learn more — and for the exceptions.

Connecticut Child Support Guidelines

In “How Is Child Support Calculated in Connecticut?” we learned that the Connecticut Child Support Guidelines assume one parent is the custodial parent.  Many Connecticut families have a parenting plan where both parents share physical custody, and there is often still child support even when parents share custody.

This is because Connecticut uses an “income shares model” for child support, which presumes that a child should receive the same proportion of parental income as they would have received if the parents lived together.  So, even when a child spends substantial time at both parents’ homes, Connecticut law presumes that the amount of child support calculated under the Connecticut Child Support Guidelines is correct for the court to order.

Child Support Calculation in Shared Custody Cases

Under the Guidelines, in a shared physical custody situation, “the presumptive current support order shall equal the presumptive current support amount of the parent with the higher net weekly income, payable to the parent with the lower net weekly income.”

And even that’s not the end of the story.

“Shared physical custody” is a deviation criteria available under the Connecticut Child Support Guidelines.  Two circumstances tend to lead to a deviation.  First, the parents agree to a lower or higher amount of child support than the CT child support formula dictates, and a judge approves it.  Second, when the parties don’t agree on child support, and the judge rules that the calculation under the Guidelines would be inequitable or inappropriate in their case.

Shared Physical Custody Deviation from the Child Support Guidelines

Under the Connecticut Child Support Guidelines, when a shared physical custody arrangement exists, it may be appropriate to deviate from presumptive support amounts if:

• such arrangement substantially
  • reduces expenses for the child, for the parent with the lower net weekly income, or
  • increases expenses for the child, for the parent with the higher net weekly income; and
  • sufficient funds remain for the parent receiving support to meet the needs of the child after deviation; or
• both parents have substantially equal income.

Percentage of Time at Each Parent’s House

The Commission that drafts the Connecticut Child Support Guidelines rejects the notion of a mathematical formula based on the time children spend with each parent to determine support amounts in the shared physical custody context.

The Commission writes: “Application of such a formula would tend to shift the focus away from the best interests of the child and more toward financial considerations, which would be inconsistent with Connecticut law.”

Shared Physical Custody Definition

Just as it rejects a formula based upon percentages, the Commission also rejects a “bright-line” definition of shared custody to “discourage disputes over time-sharing as a means of affecting support amounts.”

They do write that “a finding of shared physical custody should be made only where each parent exercises physical care and control of the child for periods substantially in excess of two overnights on alternate weekends, alternate holidays, some vacation time, and other visits of short duration, which may occasion an overnight stay during the week.  While periods substantially in excess of this schedule are required for a finding of shared physical custody, the commission emphasizes that an equal time-sharing is not required for such finding.”

The Commission leaves it to the courts to determine “what precise level of sharing is sufficient to warrant a deviation from presumptive support amounts.”

Next Steps

To learn more about how Connecticut courts calculate child support under the CT Child Support Guidelines, please check out this article.  Or, head here to learn more about the other deviation criteria.  If you already have a child support order, you can learn more about changing it post judgment in “How Do I Change My Child Support Payment.” If you have questions or want to learn more about how child support might work in your family law situation, please contact us either here or by phone.