Continuing a series on various deviations allowed by Georgia law from the presumptive amount of child support to be paid by a noncustodial parent, this article addresses “low income” deviations. Unlike the parenting time deviations and high income deviations discussed in prior articles, low income deviations at least initially always decrease a noncustodial parent’s presumptive support obligation.
As its title suggests, the deviation for “low income” is based on the noncustodial parent’s inability to pay the presumptive child support amount due to low income.(1) No statutory provision exists for a specific deviation based on the low income of a custodial parent.(2)
Application of a low income deviation requires a noncustodial parent to “provide evidence sufficient to demonstrate no earning capacity or that his or her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent…”(3)
The governing statute sets forth specific steps a judge or jury must take to evaluate a noncustodial parent’s request for a low income deviation.(4)
First, the trier of fact “shall examine all attributable and excluded sources of income, assets, and benefits available to the noncustodial parent and may consider the noncustodial parent’s basic subsistence needs and all of his or her reasonable expenses, ensuring that such expenses are actually paid by the noncustodial parent and are clearly justified expenses.”(5) “Attributable” income and exclusions from gross income are elsewhere defined in the child support statute.(6)
Next, the trier of fact must “weigh the income and all attributable and excluded sources of income, assets, and benefits and all reasonable expenses of each parent, the relative hardship that a reduction in the amount of child support paid to the custodial parent would have on the custodial parent’s household, the needs of each parent, the needs of the child for whom child support is being determined, and the ability of the noncustodial parent to pay child support.”(7) The custodial parent’s expenses must be considered in this analysis to the extent they are reasonable. For example, a child support award which required a low-income noncustodial mother to defray a custodial father’s $1,500 monthly payment to a nanny, despite the fact that the father worked from his home, was affirmed where the reasonableness of the nanny expense was demonstrated by: the young age of the children (ages six and four); the small costs of a nanny in comparison to the father’s monthly income; the qualifications of the nanny and her constructive interaction with the children; and the fact that the parties had hired a nanny for the children while married and living together.(8)
After performing the above evaluations and taking into account each parent’s basic child support obligation adjusted by health insurance and work related child care costs and the relative hardships on the parents and the child, the judge or jury “may consider a downward deviation to attain an appropriate award of child support which is consistent with the best interest of the child.”(9) Thus, as with other child support deviations, the low income deviation is applied at the discretion of the trier of fact and not automatically granted.
No matter how low a noncustodial parent’s income and no matter how great that parent’s hardship, a low income deviation cannot reduce a noncustodial parent’s child support below $100 per month for one child, plus a further minimum $50 per month for each additional child involved in the case.(10) A noncustodial parent could have to pay even higher monthly child support, despite receiving a low income deviation, because the law allows other deviations to adjust the presumptive amount of child support after application of a low income deviation.(11)
Curiously, the governing rules permit a trier of fact to use a low income deviation to reduce a noncustodial parent’s arrears.(12) That allowance seems odd because a noncustodial parent ordinarily cannot obtain a retroactive modification of a child support obligation. Absent application of a low income deviation, a noncustodial parent’s arears in child support payments typically must remain unchanged and only that parent’s future support obligation may alter.(13)
(1) Brogdon v. Brogdon, 290 Ga. 618, 621(5), 723 S.E.2d 421 (2012). (2) Id., 290 Ga. at 622(5). (3) O.C.G.A. § 19-6-15(i)(2)(B)(i). (4) O.C.G.A. § 19-6-15(i)(2)(B)(iii)-(v). (5) O.C.G.A. § 19-6-15(i)(2)(B)(iii). (6) O.C.G.A. § 19-6-15(f)(1)(A); and O.C.G.A. § 19-6-15(f)(2). (7) O.C.G.A. § 19-6-15(i)(2)(B)(iv). (8) Taylor v. Taylor, 293 Ga. 615, 617(2), 723 S.E.2d 421 (2012). (9) O.C.G.A. § 19-6-15(i)(2)(B)(v). (10) O.C.G.A. § 19-6-15(i)(2)(B)(vi). (11) O.C.G.A. § 19-6-15(i)(2)(B)(viii). (12) O.C.G.A. § 19-6-15(i)(2)(B)(vii). (13) Moore v. McKinney, 335 Ga.App. 855, 856(1), 783 S.E.2d 373 (2016), citing Jarrett v. Jarrett, 259 Ga. 560, 561(1), 385 S.E.2d 279 (1989); and Rose v. Thorpe, 240 Ga.App. 834, 834, 525 S.E.2d 381 (1999).