Illinois Matrimonial & Family Law

Robust Parenting Schedule

Reduces Support

by Wes Cowell; updated 11 February 2016 -- suggest a correction

 

A robust parenting schedule (close to 50/50) usually warrants a deviation from the standard child support percentage guidelines.  Need advice? Call, leave your info, or scheduleschedule a consultation.

 

 

As I write this, Illinois is one of only ten states still figuring child support the old fashioned way:  the "percentage of income" model.  All the other states have adopted either the "income shares" model or the "Melson formula" approach to child support.  Two bills are pending before the Illinois legislature, but they've been banging around Springfield for several years, now.  If passed and signed into law, Illinois' new child support law would take into account not just an obligor's income, but also the income of the obligee and the amount of time the children spend with each parent.

 

Until Illinois moves into the modern era of child support, we're left with having to make our cases under the existing statute and case law.  Here's what you need to know:

 

750 ILCS 5/505(a)(2):  Illinois law allows the court to deviate from the statutory guideline percentages when circumstances warrant.  Two of the factors the court must consider are the needs and resources of the non-custodial parent and the children.

 

In re:  Marriage of DeMattia:  Darlene and James DeMattia married in 1985 and divorced in 1997 when their kids were 9, 4, and 2.  James and Darlene both worked at the local correectional facility (Dwight); Darlene worked the first shift from 7 a.m. to 3 p.m., Tuesday through Saturday, while James worked the second shift from 3 p.m. to 11 p.m., Monday through Friday. Their incomes were nearly identical.  Because their work schedules were offset, James watchd the kids Monday - Friday from 6:00 a.m. - 2:00 p.m. (the opinoin doesn't say who watched the kids from 2:00 p.m. until 3:00 p.m. when Darlene got off work); they alternated the weekends (Saturday @ 10:00 a.m. until Sunday @ 7:00 p.m. and split the holidays, and vacation time.

 

James argued that because he watched the two younger children Tues - Saturday and all three kids Saturdays from 10:000 - 4:00, and alternate weekends, he should get some kind of a discount from the guidelines.  The trial court didn't buy it, and I don't blame the judge.  It's not that James probably didn't deserve some kind of deviaiton, but it seems he didn't puton much of a case.  There doesn't seem to be any record of the cost of daycare he was saving Darlene, nor of the cost of the brekfasts, snacks, and lunches that James would have to cover (and Darlene would be spared) Tuesay through Saturday.  How many more loads of laundry would James have to do because the kids were with him those extra days.  Instead, the Appellate court says his financial affidavit looked like any other financial affidavit in a joint custody case.  They said:  "Moreover, although James conceivably incurs some additional costs taking care of the children, these costs are not shown to be excessive or uncommon. Rather, these appear to be normal costs associated with a joint custody arrangement."  In re:  Marriage of Demattia, 302 Ill.App.3d 390, 393, 235 Ill.Dec. 807, 809, 706 N.E.2d 67, 70 (4th Dist., 1999).  Remember, the burden was on James to prove his case with compelling evidence.  He seems to have just said:  "The kids are with me a lot, so give me a discount."  That just wasn't good enough.

 

On the upside, the appellate court also said:

We do not suggest a trial court could never deviate downward from the guidelines based on the noncustodial parent's extended provision of care for his or her children. We do not seek to discourage noncustodial parents from having substantial contact with their children. The benefit a noncustodial parent receives from having substantial involvement with his or her children cannot be measured by dollars. There should not be an automatic deduction in child support because a noncustodial parent has the opportunity to spend substantial time with the children and fulfill a parental responsibility. Caring for one's own children is not day care nor is it a chore for which to be compensated. Our decision is not a criticism of respondent for asking this interesting question, but we decline the invitation to [302 Ill.App.3d 396] add a new layer of complexity to custody and support decisions. Our decision is limited to the facts in this case.

 

In re Marriage of Demattia, 302 Ill.App.3d 390, 235 Ill.Dec. 807, 706 N.E.2d 67 (4th Dist., 1999)

 

Turk v. Turk (2014):  Iris and Steven Turk had two boys when they divorced.  They agreed they should have joint custody and that the boys should spend most of their time with Iris.  Steven paid Iris $4,000 per month for maintenance and child support.  Over time things deteriorated and Steven ended up with temporary custody, the boys were living with him almost exclusively, and Iris's visitation was supervised.  Steven's maintenance / support obligation was reudced from $4,000 to only $700.   Before long, one son was not visiting Iris and the other, who sometimes did have visits with her, had gone off to summer camp.  At that point Iris had no contact with either child and, therefore, had no expenses to cover for their care.  Steven went to court to stop his support obligation altogether and to compel Iris to start paying support to him.  Steven's position was blunt:  "I'm the custodial parent, so I don't have to pay support -- she has to pay ME."

 

The trial court reduced the amount of support steven paid to Iris to $600.  There's a lot more about that decision in my other article: Turk v. Turk:  Child Support Turnabout.  What's important to take away for the "robust visitation reduces support" idea is that the Illinois Supreme Court said in Turk:

 

Sometimes, as under the agreed custody judgment entered in this case, a parent who is technically noncustodial may have visitation rights which place the child in that parent's care for periods that rival those of the custodial parent and at commensurate cost.  If Steven were correct and status as the custodial parent automatically precluded one from having to make any child support payments to the other parent, the noncustodial parent could end up having to pay a significant portion of the costs of raising the child without any regard to that parent's financial reources and needs or how they compared to the financial resources and needs of the custodial parent.

 

Turk v. Turk, 2014 IL 116730 (Ill., 2014)

 

This is a succinct statement of the "robust parenting schedule argument;" and it comes from The Supremes:  the noncustodial parent could end up having to pay a significant portion of the costs of raising the child(ren) without any regard to that parent's financial resources and needs or how they compare to the financial resources and needs of the custodial parent.  

 

So, take a look at your parenting schedule and the commensurate costs and the financial resources and needs of both parents, then look for the child support award that will best serve the children's interests.  Call my office for help.