Q: Is child support based on percentage of time in custody agreement, or actual time each child spends with each parent?
I currently have a custody agreement that states my children will be with me 43% of the time (3 days a week). However, the courts gave our oldest son (17 years) the right to choose when and where he stays. He has now decided to stay 100% of the time with his mom. My ex wants to redo our child support payments based on the amount of time that he spends over there but our custody agreement remains intact. Will the judge base the amount on the actual time spent (100% mom / 0% with me) or the amount of time in the custody agreement (57% mom / 43% with me)?
A:
Hi there,
It will be the actual time the child spends with the mother. However, updated custody orders should be obtained.
The child support court will not change your custody orders.
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A:
In California, child support is determined based on the amount of timeshare provided for in the child custody court order, not on the actual time the child spends with each parent.
Since your custody order provides that the children, including your 17-year-old son, are with you 43% of the time, child support should continue to be calculated based on that timeshare allocation.
California Family Code Section 4053(l) specifically states that the court shall adhere to the child support guideline calculations even if a child is estranged, alienated, or refusing to spend time with one parent. So long as your custody order is still in effect with the 43/57 split, that is what governs for calculating support, regardless of the actual time the children decide to stay with each parent.
To formally modify child support in your case, your ex would need to first request a change to the custody order and timeshare allocation itself. Unless and until the custody order is modified, the child support calculation should remain tied to the 43% time with you as outlined in the current legally binding custody determination.
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