The Relationship Between Child Support and Parenting Time

• Author: J. Thomas Oldham, Jane Venohr
• Pages: 141-180

141

The Relationship Between Child Support

and Parenting Time

J. THOMAS OLDHAM* & JANE VENOHR**

Introduction

When child support guidelines were initially drafted, it was assumed

that in most instances, the lesser-time parent would be the father, the father

would see the children infrequently, and the father would have a higher

income than the mother. Today, more custodial parents are male than

before,1 the wage gap between mothers and fathers has narrowed,2 and a

substantial number of fathers are more involved in their children’s lives.3

Decades ago, it was rare for an obligor parent to have access to his child

more than every other weekend and every other holiday and approximately

1. In 1992, only 14% of custodial parents were males, while in 2018, the percentage

increased to 20%. Compare LYDIA SCOON-ROGERS & GORDON LESTER, U.S. CENSUS BUREAU,

U.S. DEP’T OF COM., NO. P60-187, CHILD SUPPORT FOR CUSTODIAL MOTHERS AND FATHERS:

1991, at 2 (1995), https://www2.census.gov/prod2/popscan/p60-187.pdf, with TIMOTHY GRALL,

U.S. CENSUS BUREAU, U.S. DEP’T OF COM., NO. P60-269, CUSTODIAL MOTHERS AND FATHERS

AND THEIR CHILD SUPPORT: 2017, at 2 (2020), https://www.census.gov/content/dam/Census/

library/publications/2020/demo/p60-269.pdf.

2. Historically, female earnings averaged about 60% of male earnings, but climbed to 79%

by 2014 (approximately 83% on a weekly basis). FRANCINE BLAU & LAWRENCE KAHN, THE

GENDER WAGE GAP: EXTENT, TRENDS, AND EXPLANATIONS 2 (Nat’l Bureau of Econ. Rsch. 2016),

https://www.nber.org/papers/w21913.pdf.

3. Daniel R. Meyer et al., The Growth in Shared Custody in the US: Patterns and

Implications, 55 FAM. CT. REV. 1, 2 (2017).

* J. Thomas Oldham is the John H. Freeman Professor of Law at the University of Houston.

** Jane Venohr, Ph.D., is an economist and research associate with the Center for Policy

Research. Venohr has provided technical assistance to over 30 states on child support guidelines

issues.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

142 Family Law Quarterly, Volume 54, Number 2, 2020

three weeks in the summer (or about 20% of all overnights per year).4

Recent studies have found that shared placement has become more

common.5  

noncustodial mothers had provisions for visitation or joint custody or both

in 1991, and that the percentage increased to 81% of noncustodial parents

in 2018.6 These trends raise questions about how to calculate child support

obligations in various situations, particularly when the payor parent has

substantial access to the child.

This article will discuss various approaches that have been applied to

how child support should be calculated (i) when the lesser-time parent has

a higher income than the other parent but has substantial access, (ii) when

both parents have equal joint physical custody, and (iii) when the greater-

time parent has a higher income than the other parent. We will highlight

the advantages and disadvantages of the various policy options.

I. Background Information

A. The Theoretical Foundation of Child Support Guidelines

in the United States

Most states adopted child support guidelines in the late 1980s to

          

guidelines by 1987.7 The Family Support Act of 1988 expanded the

requirement from statewide advisory guidelines to require rebuttable

presumptive guidelines.8 The requirements were intended to correct



         

4. For example, one study of divorced fathers in 1981 found that only 8% of all fathers had

possession of their child for four or more overnights per month. See Frank F. Furstenberg Jr. &

Christine Winquist Nord, Parenting Apart: Patterns of Childrearing After Marital Disruption,

47 J. MARRIAGE & FAM. 893, 895 tbl.1, 896 (Nov. 1985).

5. See Meyer et al., supra note 3; DANIEL MEYER ET AL., CHANGES IN PLACEMENT AFTER

DIVORCE AND IMPLICATIONS FOR CHILD SUPPORT POLICY (Inst. for Rsch. on Poverty 2019); Bruce

Smyth et al., Legislating for Shared-Time Parenting After Parental Separation: Insights from

Australia?, 77 LAW & CONTEMP. PROBS. 109 (2014); Marygold S. Melli & Patricia Brown,

Exploring a New Family Form—The Shared Time Family, 22 INT’L J. L., POL’Y & FAM. 231

(2008).

6. See SCOON-ROGERS & LESTER, supra note 1, at 6; GRALL, supra note 1, at 7.

7. Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, § 18, 98 Stat.

1305, 1321–22.

8. Family Support Act of 1988, Pub. L. No. 100-485, § 103, 102 Stat. 2343, 2346–48.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Relationship Between Child Support and Parenting Time 143

the lack of uniform standards, and inadequate levels of support when

compared to poverty levels and the cost of child-rearing.9

A number of different conceptual models were proposed as a

foundation for the creation of child support guidelines. For example,

some commentators have argued that guidelines should be crafted so that

both parents will have equal living standards until the child becomes an

adult.10 However, no state has adopted this as a conceptual framework

for guidelines. Instead, most states adopted a “continuity of expenditure”

model of child support guidelines.11 The principle of the continuity-of-

expenditure model is that the child whose parents are living separately

           

have received if the child and parents lived together as an intact family. To

this end, the continuity of expenditure model is based on measurements

of child-rearing expenditures in intact families. The continuity of

expenditure philosophy has been implemented in the United States via the

“income shares model” and the “percentage-of-obligor income model,”

the two major types of models for the calculation of child support. All

but three states use one of these two models. The income shares model,

which is used by 41 states,12 presumes that each parent is responsible for

his or her prorated share of what an intact family with the same number

of children and combined parental income spends on child-rearing. The

obligated parent’s prorated share (based on the obligated parent’s share of

the total parental income) is the basis of the child support order.13 Under

the percentage-of-obligor income model, the presumptive child support

amount is calculated based on only the income of the lesser-time parent.14

States utilizing the percentage-of-obligor income model often presume

that the custodial parent spends at least an equal percentage of income or

dollar amount on the child as the guidelines percentage or amount.

9. See ROBERT G. WILLIAMS, U.S. DEP’T OF HEALTH & HUM. SERV. OFF. OF CHILD SUPPORT

ENF’T, DEVELOPMENT OF GUIDELINES FOR CHILD SUPPORT ORDERS II-2 (1987); Jane C. Venohr &

Robert G. Williams, The Implementation and Periodic Review of State Child Support Guidelines,

33 FAM. L.Q. 7 (1999).

10. See generally Marsha Garrison, Child Support Policy: Guidelines and Goals, 33 FAM.

L.Q. 157, 157 (1999) (discussing a number of possible alternate goals for child support guidelines).

11. Id. at 160–62, 166–69. See Venohr & Williams, supra note 9, at 12; Jane C. Venohr,

Differences in State Child Support Guidelines Amounts: Guidelines Models, Economic Basis,

and Other Issues, 29 J. AM. ACAD. MATRIM. L. 377, 385 (2017).

12. Child Support Guideline Models, NAT’L CONF. OF STATE LEGISLATURES (July 10, 2020),

https://www.ncsl.org/research/human-services/guideline-models-by-state.aspx.

13. See Venohr & Williams, supra note 9, at 12–15.

14. Id. at 10–12.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.