While perhaps not immediately obvious, child support is interwoven with parenting and custody outcomes as well as potentially many separation-related issues. To some extent, as married women’s labor force participation and custody rules have changed nationally over the past decades, child support has altered as well. Virginia’s changing policies closely track the national picture.

In the United States, responsibility for providing support for minor children is tied to biology rather than parenting. Thus, even parents of children who have been temporarily removed from their parents’ care due to neglect or abuse remain obligated to the state for their support. Custody, rather than paternity, has historically been a social fact: thus the unwed father must “grasp the opportunity” of parenthood before he can object to placement (Lehr v. Robertson, 463 U.S. 245 (1983)), and the biological father who is uninvolved may be unable to veto a stepparent adoption (Quilloin v. Walcott, 434 U.S. 746 (1978); Ward v. Faw, 253 S.E.2d 658 (Va. 1979)).

Even when custody is not an issue, parents are required by the state to take financial responsibility for their children. For example, there has been a sharp increase in the number of support actions by states recouping TANF (welfare) payments from non-custodial parents. In most cases, the custodial parent has not sought formal custody awards, though they may be making “in kind” contributions to their families’ well-being.

When part of a divorce, child support is a continuation of a duty to the children, who are not themselves parties to the proceedings and who are not intended to break with their parents at divorce. Unlike spousal support, it historically has been designed to ensure that children receive from their parents what they would have had the adult relationship remained intact (Conway v. Conway, 395 S.E.2d 464 (Va. App. 1990)). Of course this cannot be true for unwed parents who have never lived together but who nonetheless owe duties of support to their children. Some laws and cases recognize that children may be “owed” extra, such as help with college tuition, to make up for the hardship of parental breakup (In re Marriage of Crocker, 971 P.2d 469 (Ore. 1998)). Since these children are almost always above the age of majority, parents who wish to provide for college usually do so by agreement, and courts will honor these provisions, as in the Goldin v. Goldin case (34 Va. App. 95, 538 S.E.2d 326 (2000)).

Because of concerns that child support could leave custodial parents (largely mothers) destitute, and that judges were arbitrary and capricious in their awards of child support and because state child support measures often proved inadequate, the federal government and uniform laws concerning child support have been increasingly tightening these measures. In the mid-1980s, the Federal government started requiring state-level child support guidelines as a condition for receiving Social Security block funding (42 U.S.C. § 667). Child support enforcement measures including state incentives created new federal and state agencies dedicated to recouping monies owed to governments (for public assistance) or custodial parents (as example, Virginia Department of Social Services Office of Child Support Enforcement). While things have improved marginally, in May 2014, 422,000 of Virginia’s children are owed more than $2.6 billion in unpaid child support.

Historically, the guidelines developed in the mid- to-late-1980s were designed for low-income parents and to mimic spending on additional children in low- to-moderate-income intact families,
with charts that seem simple but actually involve numerous assumptions. Currently, there has been some recognition that with higher income fathers and income disparity between parents, some child support is in effect support for the caretakers. Alimony, or spousal support, is today awarded infrequently, and divorce laws are designed to equalize assets earned during marriage, such as pensions, securities or homes, assets not available to many young families. Child support, because it is geared to income, therefore reaches the continuing earning potential of each parent. When children are young, the primary custodial parent may suffer opportunity losses in the workforce, and the guidelines were intended to reduce these differences between the two households. Usually the statutory guidelines require written reasons for deviation from the standard (§ 20-108.2(A)), though deviation frequently occurs because parents agree to it.

While shared parenting (in Virginia, called shared custody) was a feature in some states as early as the 1980s, laws favoring joint custody are proliferating, and shared parenting is becoming more common, especially among wealthier, educated, divorcing couples. These are also the families in which some types of child support guidelines disadvantage wealthier fathers in cases where the mother is not employed full time. Shared parenting also influences the amount of child support collected from fathers, who still make up the bulk of “noncustodial” parents.

States have taken a variety of routes to recognize the reality of increased shared parenting in their child support guidelines.
In some states, such as Arizona and Virginia, days (including partial days) are scrupulously counted and reduce calculated obligations proportionately (Arizona Child Support Guidelines, 2011 (counting all periods including more than three hours as .25 days; Virginia Child Support Guidelines Worksheet, 2013 (taking effect for parents who each have custody for more than 90 days of the year, Va. Code Ann. 20-108.2(G)(2), and counting any overnight presumptively as a day))). In the case of equal parenting, this may result in no or little support being paid because the calculated amount of each parent’s obligations are simply offset. In other states, such as Arkansas, reductions are capped, to, for example, half the amount under the guidelines (Arkansas Judiciary, 2014). The largest impact here is on lower-income mothers who may struggle to provide half the calculated child’s support (assuming that the guideline amounts are correct). Two states (New Jersey and Indiana) take into account the fact that child support in shared parenting is actually of several kinds: fixed (housing, car seats), variable (food), and assigned (clothing, school fees, cell phone charges, child care costs, medical insurance, which individually might be assigned by court or agreement to either parent). Virginia recognizes this by multiplying the usual amount by some factor (for example, 1.4) before working out the shares.

The financial incentives created by automatic reductions in child support may be particularly pernicious in states where shared/equal parenting is presumed,
but before separation, one parent had absorbed the bulk of child care (and therefore the corresponding permanent labor force loss). The child support deductions for shared parenting in these cases drastically reduce support. The incentives could be to ask for more custody than was really desired, and perhaps more than was in the best interests of the child, to avoid having to pay more money to historical custodial (or primary custodial) parents. The folk wisdom among women in professions involved in custody disputes is that this occurs frequently, or even regularly, among the noncustodial parents they see. From a social science perspective, empirical research needs to be done to see if that occurs. But trades of money for custodial time at the time of divorce has not so far been found. This sort of behavior has not yet been studied in shared custody states. If it exists, it would seem most likely where (1) there is no cap on percentages of income models for high income parents; (2) there are automatic percentage reductions with increased custody to less than half the original obligation if there is equal parenting; (3) there is no state recognition that only the variable costs change with overnights, and these represent a small share of spending; and (4) there is a (particularly) big disparity between custodial and noncustodial incomes.

As described above, child support and child custody are deeply intertwined. As laws and society move toward shared/equal parenting as the norm, this can have an immediate and ongoing effect on support obligations.


Further Reading

Allen, D.W. & Brinig, M.F.. “Child Support Guidelines: The Good, the Bad, and the Ugly.” 45 Family Law Quarterly, vol. 45, no 1. (2011), pp 135-56.

Arizona Supreme Court. Arizona Child Support Guidelines (2011).

Arkansas Judiciary, 2014. Order 10. Child Support Guidelines, available here.

Bartfeld, J. “Shared Placement: An Overview of Prevalence, Conditions, Economic Implications and Impacts on Child Well-Being.” Institute for Research on Poverty, University of Wisconsin-Madison (December, 2011).

Ellman, I. M. & Braver, S. J. and McCoun, R.J. “Intuitive Law: The Example of Child Support.” Journal of Empirical Legal Studies, vol. 6 , no. 1. (2009), pp. 69-110.

Garrison, M. “An Evaluation of Two Models of Parental Obligation.” California Law Review vol. 86, no. 1. (1998), pp. 41-118.

Maccoby, Eleanor & Mnookin, Robert. Dividing the Child (Cambridge, MA: Harvard University Press, 1993).

New Jersey Supreme Court, 2014. New Jersey Child Support Guidelines Worksheet, available here.

Virginia Supreme Court, 2014. Virginia Child Support Guidelines Worksheet, available here.

Margaret F. Brinig
Margaret F. Brinig is the Fritz Duda Family Professor of Law at the University of Notre Dame.

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