Why do I pay child support when my child lives with me?

Question: I have a 17-year-old daughter who lives with me. I am getting divorced and we are trying to go through mediation. Our lawyer set up the alimony and child support.

My question is, since my daughter lives with me, why do I have to pay $750 month? Our lawyer stated a 35%/65% split, but my daughter never goes over to her mom’s home.

 

 

Answer:

The amount of each parent’s child support is usually a proportionate share of that parent’s income in relation to both parents’ income for each overnight. Most states have mandatory or recommended child support formulas to calculate this amount. Strange as it may seem, a parent with a higher income may end up paying child support even though he has his child (and supports his child on his time) as often as the other parent. However, most states will allow parents to motion for or consensually opt-out of the statutory amount under certain conditions. The conditions vary by state, and the likely success varies by the temperament of the judge or family court referee deciding your motion.

We often hear of marriage as a contract between husband and wife, but that is misleading. Marriage is actually a three-party contract, with the husband, the wife and the state each having interests. Without delving too far into political theory, the basic idea is that the state has at least two interests: an interest in seeing that parties who marry under its laws comply with their duties as married couples under its laws and an interest in seeing that their children are provided for because they are the state’s future citizens. This second interest is a component of the parens patriae doctrine, the doctrine that states have an interest in a rearing a child because that child will one day (or should, rather) become a productive state citizen.

Using this doctrine, states enacted child support laws to ensure that children would receive support. This support is the child’s inherent right. It is a right to a basic level of support for the child’s food, clothing, shelter and care. Moreover, it is the child’s parents’ obligation to provide because the parents brought the child into the world. That is, the child did not ask to be born and should not bear the burden of supporting himself – has a right not to.

Notice two things about this right.

First, child support is not the child’s mother’s right or the child’s father’s right. It is the child’s. In other words, the mother (or father) does not have “a right” to support, and the child support is not “hers.” She holds that money for her child’s benefit. (I realize payees do not always use support for their children’s benefit, but in theory they should).

Second, the physical time the child spends with each parent is not dispositive. A child does not lose his right to support merely because he does not spend time with his father. His right is a right from birth, irrespective of how much time he spends with a parent, until he reaches the age of majority (in most states) or completes schooling (in some).

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in California. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce cases do.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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