CHILD SUPPORT CLOUDS HAVE A SILVA LINING
By: Jay Markell, Esq.
What happens to a child support order if there is a difference in the incomes of two parents who share residential responsibility for their children? In the Matter of Vivian Silva and Robert Silva, (2018), The New Hampshire Supreme Court vacated and remanded a child support order, and created controversy.
The parties agreed on a parenting plan (parenting time) for shared residential responsibility for their children. The obligor’s monthly income was $6913.00, and the obligee’s was $2872.00. The trial court deviated downward from a monthly child support order of $1590.00 to $533.80. The trial court based its decision largely on apportionment of expenses under RSA 458-C:5I (h)(2).
The Supreme Court reasoned the trial court did not completely analyze the economic consequences of the apportionment of variable expenses, the obligor’s assumption of responsibility of variable expenses, or say how the division of variable expenses “made the application of the guidelines unjust or inappropriate under RSA 458-C:4, or say how the obligee’s fixed costs were reduced due to shared residential responsibility.“ The Court held RSA 458-C:5 (h)(I)(2) (A), (B), and (C) to mean if a higher income obligor seeks a downward deviation from a guidelines order, the obligor will have to show special circumstances from a “non-exclusive” list of special circumstances beyond an equal or approximately parenting schedule, so a court can consider : (A) whether the parties have agreed to apportion certain children’s variable expenses, which include but are not limited to education, school supplies, clothing uninsured medical or other expenses; (B) whether the obligor parent has shown that an equal or approximately equal schedule will result in a reduction in any of the fixed costs the obligee parent incurs in child rearing, and; (C) whether the award to the parent with the lower income will allow that parent to meet the costs of child rearing, in a “similar or approximately equal style to that of the other parent.”
a). Conflicting statutes and problems with shared residential responsibility support orders need an answer that produces a fair result:
Parenting plan battles to avoid the impact of support orders are foreseeable, as the Silva Court neither defines what constitutes a disparity of income, nor said how much of a disparity triggers a guidelines award. Thus, even a small difference in incomes can trigger a full guidelines order.
There are two sets of statutes dealing with child support. The child support guidelines. i.e., RSA 458-C enacted in the 1980’s, is a response to the federal mandate under the 1974 Family Support Act. Guidelines must be “specific, descriptive and numeric criteria that results in a mathematical computation of the support award.” 45 CFR § 302.56 (c). The Parenting Rights and Responsibilities Act, RSA 461-A, enacted in 2005, also deals with support. RSA 461-A: 14, asks courts to “make such further decree in relation to the support and education of the children as shall be most conducive to their benefit and may order a reasonable provision for their support and education….”
Neither one solves the problem. The result might be predictable, but unfair; a full guidelines order may create de facto alimony awards for unmarried parents. Child support paid to an obligee spouse is an income factor and added in when considering alimony need. See RSA 458-19-a- II (1) (A) and (B)(2). This is not a new concept, as child support payments were to be first calculated before alimony need is shown. In the Matter of Crowe, (2002).
b). Cases dealing with shared or approximately equal residential responsibility and income disparities problems can be resolved using the Off Set Method:
The offset method for determining a child support order is an established way to resolve support issues of this type, where RSA 458 C) (h) (I) (2) ( C ) requires courts to analyze “whether the award to the lower income parent will allow that parent to meet the costs of child rearing in similar or approximately equal standard of living to that of the other parent.”
Anecdotal evidence suggests this has been in common use in New Hampshire and in other states and has been adopted in a number of states. In Child Support Guidelines: Interpretation and Application, Laura W. Morgan calls it the preferred method for resolving split parenting time arrangements.
In an offset calculation, child support is calculated as if each parent paid support to the other, and the difference between the higher amount and the lower amount becomes the amount of the order paid to the lower earning parent. It can then be determined whether the resulting amount will adequately provide for the needs of the children. It meets the requirements of 45 CFR § 302.56 (c), and the result can be rebutted, or a deviation can be had if necessary to produce a just result.
c). Foreseeable Undesirable Consequences: The Massachusetts Experience:
Guideline child support orders for parents who have shared residential responsibility are a contentious issue. For example, a 2012 study done by the Massachusetts Child Support Guidelines Task Force showed that when support was linked to parenting time ( more than one third, but less than fifty percent) there was “ more litigation, and acrimony between parents, and shifted the focus from a parenting plan that is in the best interest of children, to attempts to reduce child support orders.”
In June, 2018, Massachusetts revised its child support guidelines, and eliminated that feature; it now calculates shared parenting arrangements in its child support worksheet using the offset method to establish child support orders.
There is a disconnect between child support and shared residential responsibility. New
Hampshire needs a solution that protects children, is easy to understand , fair, helps resolve cases and frees parents from support driven litigation.
Jay Markell is a Senior Attorney at Family Legal Services, P.C. and has drafted New Hampshire House Bill 362, which proposes the offset method for child support