Oftentimes during a divorce proceeding, the issues of custody and parenting time are resolved early on in the case. There is nothing stopping parties from drafting a final agreement detailing the legal and residential custody arrangement with a detailed parenting schedule, and having the court enter the agreement while financial issues such as alimony, child
We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow. To see our prior posts, click here, here and here. The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50. In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.
Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010. In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties’ daughter. The father moved to bar the move, seeking sole custody if the mother moved. The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.
The trial court determined that there was true shared parenting, denied the mother’s request to relocate and directed that the father be the primary parent if the mother moved. The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.
I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible. That is not the case. Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.
But shared parenting time is not an impossibility. Supposedly, it requires parents who have the ability to communicate and cooperate. That said, I have seen parents who cannot have a civil word with each other effectively co-parent.
Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children. Curiously, these definitions actually stem from the child support guidelines. When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets – a sole parenting worksheet and a shared parenting worksheet (104 overnights and over). While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.
A long standing problem for matrimonial attorneys has been the calculation of child support in situations in which two parents have equal physical custody of children. The Court Rules tell us that when the combined net income of the two parents is $187,200 or below, the Guidelines must be utilized as a rebuttable presumption for child support. Practice tells us that the Guidelines are rarely deviated from in this income category.
The Child Support Guidelines are predicated on the supposition that there are three types of expenditures that parents make for or on behalf of their children.. The first is fixed expenses (representing 38% of the child support amount) are those expenses incurred even when the child is not residing with the parent. Examples of this include housing-related expenses, such as mortgage or rent, utilities, household furnishings and household care items. The second is variable expenses (representing 37% of the child support amount). Variable expenses are incurred only when the child is with the parent. This category includes items such as transportation and food. Finally, controlled expenses (representing 25% of the child support amount) are those expenses which include items like clothing, personal care, entertainment and other miscellaneous items.
The Guidelines presume that each parent has fixed and variable expenses on behalf of the child. On the other hand, the Guidelines also presume that controlled expenses are ONLY incurred by the parent who is designated the “Parent of Primary Residence.” However, in a true joint custody scenario, neither parent is the Parent Primary Residence and both have controlled expenses. The calculation of child support in these cases has been problematic for many years and there has been little consistency as to the child support awards in these cases. On April 13, 2009, a published trial court decision was handed down in which there is a specific formula to determine child support.