High Child Support Awards Deny Contact between Fathers and Their Children

by Roger F. Gay

Project for the Improvement of Child Support Litigation Technology (PICSLT) revisits the question of giving fair credit for expenses paid by non-custodial parents during visitation [1]

Visitation credits reduce the amount of child support awarded in recognition of the fact that non-custodial parents support their children directly during visitation periods. It is inappropriate to send money for the same expenses to the custodial parent.

PICSLT first looked at the question of visitation credits ten years ago. [2] The federal mandate for use of state-wide formulae to determine child support awards was just about to go into effect. Review of federal government funded technical advice on design of child support guidelines showed that more research was needed.

Before PICSLT became a focused project, we needed to know whether we had a way of making major technical contributions. Specifically, we wanted to establish that the design of child support guidelines would benefit from the application of real professional scientific and engineering methodology.

After delving into child support statutes and case law, systematically extracting its rules and logic, and translating some of it into mathematical equations, the search began for previous work that was verifiably correct. It was quickly found that the formula for crediting visitation had been previously invented.

Nearly a decade earlier, Maurice Franks had written a paper on the calculation of child support award amounts. [3] He included an equation for providing credit for expenses paid during visitation. The equation took into consideration the amount of time children spent in each household, as well as both parents’ continuing obligation to support their children. This is known as cross-crediting.

Was it correct? In the same year that Franks’ paper was published, it was referred to by the Oregon Supreme Court. [4] A former welfare recipient asked that the welfare system’s formula for determining a child support award be applied in her case. The Court determined that the welfare system’s formula did not correspond to the state statute on the award of child support in non-welfare cases. Without mandating the use of any formula in non-welfare cases, the Court commented that Maurice Franks’ formula came closest to the meaning of the Oregon child support statute.

Three years later, the Pennsylvania Supreme Court had reason to perform a similar review, commenting on established child support principles and the use of formula to determine child support awards. [5] The Pennsylvania Court also used Franks’ formula as the prototype with best correspondence to established law.

The cross-crediting formula treats the payment of child support as a reimbursement for expenses borne by the parent who is caring for the children. Most of the time it is the custodial (or primary) parent who is to be reimbursed, since most visitation arrangements allow children to spend less time with the non-custodial parent. This is not to say that the custodial parent is the only parent who spends money on children and should therefore be reimbursed.

During visitation, the roles are reversed. The non-custodial parent pays the bills. The custodial parent still has a financial obligation to support their children even during periods of visitation. One can imagine then, that the non-custodial parent pays the custodial parent most of the time. But the custodial parent pays the non-custodial parent during visitation.

In practice, child support awards were typically reduced to account for visitation time. Since the total amount paid to the custodial parent is typically much higher than the amount the non-custodial parent should receive, the child support payment by the non-custodial parent was just made to be the difference between the two.

The reimbursement approach to cross-crediting used economic data from the custodial parent household. It would not matter if the non-custodial parent’s daily expenses were actually higher than the custodial parent’s or if the non-custodial parent paid for fixed assets such as an extra bedroom year-round. Care during visitation was thought of as a replacement for care by the custodial parent. Most common credits were given by pro-rating the custodial parent’s “cost.” This reflected the idea that temporary care by a non-custodial parent relieved the custodial parent of the direct obligation during that period. It therefore fit the general idea that child support is a payment made to reimburse the custodial parent.

Note however that credit could also be given to offset special visitation expenses such as high transportation costs for picking up and returning children; for example, when parents lived more than 25 miles apart. This was possible because established legal principle allowed consideration of all costs related to the care of children.

PICSLT had made a good start. Since key elements (more than just the visitation credit) had previously been established, the approach taken by the project to reinvent them was valid. Not only that, but given acceptance of Franks’ model by the courts, it seemed likely that future improvements would stand a good chance of being accepted as well.

As for visitation credits in particular, it appeared as though the world had already figured that out. Cross-crediting was not an obscure procedure being discussed by a few specialists and philosophers. Later questioning of practitioners confirmed that cross-crediting was widely understood within the profession.

So that explains the nearly decade long gap in PICSLT work on visitation credits. The project carried on developing prototype guidelines and delving into the remaining mysteries and problems in creating a complete and accurate mathematical decision model. And of course we did the obligatory work of reviewing and criticizing existing guidelines.

It was somewhat surprising that cross-crediting had not been included in federally funded technical work on developing child support guidelines, but then established child support principles and practice were not related to federally funded work. [6] Even more surprising was that a decade then passed during which the states themselves did not reform their guidelines to provide appropriate visitation credits. [7] Where have all the people gone who had understood how to calculate visitation credits before the federal reforms had taken effect?

One explanation is that states systematically eliminated the basic principles that had been established for making child support awards. After careful and lengthy review, PICSLT would like to summarize the previously established rational basis for child support awards with three fundamental principles.

1. Child support is for the care and maintenance of children.
2. Both parents have an equal duty to support their children.
3. All relevant circumstantial information may effect the amount of the award.

State courts no longer have a rational basis upon which to determine what is required in the formulation of a just and proper child support award amount. More often than not, state statutes merely point to their guidelines. [8] When principles are expressed in statute, they are usually insufficient and often incongruous with the idea of supporting children. [9]

That only partially explains why child support guideline review committees have not developed better visitation credit calculations. Another explanation is made apparent in the book Divorced Dads: Shattering the Myths. Author Sanford Braver conducted the largest federally funded study of divorced fathers. He also serves on committees that review domestic relations policies in the State of Arizona.

Braver documents assumptions made by people working on family related issues that have been translated into law without being put to the test. In recent years there have been many myths that have been used to demonize non-custodial parents. For example, since the majority of poor single custodial parents are mothers, the majority of fathers must be unwilling to support their own children, and therefore stronger enforcement measures are needed.

Braver raises a question that, unanswered, can stand in the way of greater support for appropriate visitation and shared parenting credits. One of the stated goals in domestic relations policy is that of reducing conflict between the two parents. Some child support policy reviewers think only about the reduction in the amount paid to the custodial parent. This leads to questions; whether such credits will cause custodial parents to object to visitation. And will non-custodial parents attempt to increase their scheduled visitation merely to obtain reductions in child support awards?

PICSLT investigated. [10] The answer should not be a great surprise. When credits are given against awards that fairly and accurately deal with the actual and necessary expenses of raising children, custodial parents never lose as a result of properly calculated visitation credits. In fact, they continue to benefit from higher standards of living. The non-custodial parent’s expenditure during visitation periods is an alternative to paying support to the custodial parent.

Non-custodial parents never win. Even when we account for the custodial parent’s continuing obligation to provide financial support during visitation periods, it is the rare case when the non-custodial parent brakes even. In most cases, non-custodial parents would continue to pay more in proportion to visitation.

No rational economic reason was found for custodial parents to object to visitation based on accurate and reasonable methods for awarding child support and crediting visitation time. And it was found that non-custodial parents would receive no financial gain from increasing visitation time for the sake of lower awards.

The greater danger is that the non-custodial parent will have insufficient funds to increase visitation, or may have too little to exercise normal visitation. This problem is aggravated by arbitrarily high awards generally, including inadequate credit for visitation.

Having explained the reimbursement approach to cross-crediting in some detail, a challenge was presented by Kansas child support commissioner James Johnston. He noted that the reimbursement approach does not consider the actual expenses borne by the “second parent.” Perhaps when the parents have joint custody or when their parenting time is nearly equal, it makes little sense to base the child support calculation on the expenses of only one of the households.

Those readers interested enough to look at the mathematics are welcome to the PICSLT web site. The article found at reference 1 below contains the detailed explanation of the reimbursement method of cross-crediting. It has been extended to include a more general formula in which the actual expenses of both households are taken into consideration.

1. Project for the Improvement of Child Support Litigation Technology (PICSLT) is an R&D project that focuses on the science, engineering, and application of child support guidelines. The first of two recent articles on calculation of credits for visitation and shared parenting, How to calculate can be found at: http://www.geocities.com/CapitolHill/5910/credit.html The second is cited below.

2. Pilot Study on the Development and Evaluation of State Guidelines for Calculation of Child Support Payments, Intelligent Systems Research Corporation Report; Special Report No. ISR-032590.01, Child Support Series Report No. 1, April 16, 1990.

3. Franks, Maurice, How to Calculate Child Support, Case & Comment, January-February, 1981.

4. In the Marriage of Smith, Or 626 P2d 342 (1981).

5. Melzer v. Witsberger (505 Pa. 462; 480 A.2d 991, 1984)

6. Federally funded work was driven by the National Center for State Courts and the Office of Child Support Enforcement, both of which had shown some determination in pushing for increased child support award amounts; inconsistent with established child support law in the states.

7. With the exception of California, no other state uses cross-crediting.

8. The child support statute in the State of Indiana is one example. For a more detailed dissection with recommendations, see Recommendations for Improvement of Child Support Law in the State of Virginia, June 1999; available at http://www.geocities.com/CapitolHill/5910/picslt.html

9. During the implementation of federal mandates, child support shifted from a mechanism for supporting children to emphasis on increasing the standard of living of custodial parent households.

10. The full study report is available at the PICSLT web site, on page http://www.geocities.com/CapitolHill/5910/credit-effect.html

Copyright 2000 Roger F. Gay.
Project for the Improvement of Child Support Litigation Technology