CHILD SUPPORT CLOUDS HAVE A SILVA LINING

April 28, 2020

 

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. 

 

a)      Fact Summary. 

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. 

 

d)    Conclusion

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.


Biography 

Jay Markell is a Senior Attorney at Family Legal Services, P.C. and has drafted House Bill
362, which  proposes  the offset method  for child support 

 
 
 

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