In Georgia, statutory guidelines establish a minimum basis for determining the amount of child support and act as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.(1) Determination of the amount of child support begins with the calculation of each parent’s pro rata share of a basic child support obligation derived from the parents’ combined incomes.(2) A judge or jury then arrives at a presumptive monthly sum certain payment due to the custodial parent from the noncustodial parent.(3) After calculating that presumptive child support obligation, the judge or jury has discretion to subtract or add to the presumptive amount by applying one or more statutory deviations, including a deviation for “parenting time.”(4) A decision whether to deviate from the presumptive amount of child support requires consideration of the best interest of the child for whom support is being determined.(5) Ultimately, the statutory guidelines seek to provide children of unmarried parents, “to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.”(6)
The statutory guidelines’ rebuttable presumption requires each parent to contribute to the financial support of their child in the same proportion as that parent’s income relates to the sum of the parents’ incomes, without regard to the amount of time the child spends with each parent.(7) The “parenting time” deviation allows a judge or jury to factor into the equation the relative time spent by the child with each parent, as follows:
The child support obligation table is based upon expenditures for a child in intact households. The court may order or the jury may find by special interrogatory a deviation from the presumptive amount of child support when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation, the child residing with both parents equally, or visitation rights not being utilized.(8)
To obtain a parenting time deviation, the parent seeking it must prove that the proportional amount of the noncustodial parent’s time constitutes special circumstances which make the presumptive amount of child support excessive or inadequate, and that the child’s best interest would be served by subtracting from or adding to the presumptive amount of support.(9) For example, noncustodial parents arguing for a reduction in their presumptive support obligations, because they have been awarded above-standard parenting time which will cause additional expenses while the children are in their custody, must specify what those additional expenses will comprise.(10) They also must articulate a basis for finding that their children’s best interest would be served by subtracting from the presumptive amount of child support.(11) Assumedly, parties seeking a parenting time deviation should attempt to show that the presumptive amount of child support will render them unable to provide the children, while in their custody, with the same standard of living enjoyed by children living in intact families consisting of parents with similar financial means.(12)
Upward or downward parenting time deviations may be awarded only to the noncustodial parent.(13) That is, the deviation must add to or subtract from the noncustodial parent’s presumptive support obligation.(14) A subtraction which reduces the noncustodial parent’s child support obligation below zero could result in the custodial parent having to pay child support to the noncustodial parent.(15)
Unfortunately, no statute addresses the calculation of parenting time deviations, leaving that calculation open to the creative arguments of attorneys and their expert witnesses, to be accepted or rejected at the discretion of a judge or jury.(16) In situations involving extended parenting time, a noncustodial parent anticipating additional child care expenses presumably could seek a dollar-for-dollar subtraction of the estimated additional expenses from his/her presumptive monthly support obligation.
In cases of equally shared physical custody, a number of possible calculation methods exist. One court, for example, structured a parenting time deviation so that a noncustodial husband who earned 65% of the parties’ combined income ended up paying 35% of the total presumptive monthly support obligation for the children.(17) Another simple method posits that parties sharing equal physical custody should equally split the total presumptive monthly support obligation. Applying that premise, the parent designated as noncustodial would request a deviation sufficient to reduce his/her presumptive support obligation to 50% of the total presumptive amount. More complex calculation methods also exist; however, their enumeration falls outside the scope of this article.(18)
(1) O.C.G.A. § 19-6-15(c)(1). (2) O.C.G.A. § 19-6-15(b) (3) O.C.G.A. § 19-6-15(b)(7). (4) O.C.G.A. § 19-6-15(b)(8); O.C.G.A. § 19-6-15(b)(8)(K). (5) O.C.G.A. § 19-6-15(i)(1)(A). (6) O.C.G.A. § 19-6-15(c)(1). (7) Hamlin v. Ramey, 291 Ga.App. 222, 224, 661 S.E.2d 593 (2008). (8) O.C.G.A. § 19-6-15(i)(2)(K). (9) Hamlin, supra, 291 Ga.App. at 224-225. (10) Id., at 225. (11) Id. (12) See generally O.C.G.A. § 19-6-15(c)(1). (13) Williamson v. Williamson, 293 Ga. 721, 725-726(3), 748 S.E.2d 679 (2013). (14) Id.