March 2000

Calculating Child Support Transfer Payments: A New Approach

by John Mills

No family law proceeding is complete without lawyers talking about the "primary residential parent" or simply "primary parent." Despite the fact that RCW Chapter 26.09 does not define "primary caregiver" or "primary parent," lawyers and judges use that phrase every day. The Court of Appeals has observed that the term "primary residential parent" does not appear in the Parenting Act.1  The court also says that the "primary parent" concept is not to be used interchangeably with the now defunct "custodial parent" concept. Then why is family law rife with litigation over who is the "primary" parent?

Under the old law, the court's involvement in post-dissolution parenting was pretty limited. The court selected the "better" parent, designating that parent the "custodial" parent. Having done so, all issues were implicitly decided. Place the children in parochial school? The custodian decides. Allow a minor to marry? The custodian decides. Permit a tattoo or body piercing? The custodian decides. But under the new law all these kinds of decision-making issues are addressed separately in a parenting plan.

Because the new parenting plans address almost all of the issues formerly left to the discretion of the custodian, there would appear to be no particular reason to seek designation as "primary" parent. Yet every family law practitioner knows that there is unending litigation over primary parent status.

Let's be honest. One of the principal reasons for arguing about primary parent status is financial, as the current method of calculating child support transfer payments gives a financial windfall to the so-called primary parent.

P.O.P.S. v. Gardner2 held that the support schedules represent a legislative determination of the combined amount that parents should be spending to support their children. Basic child support obligations are pretty easy to figure out, straightforward and sensible. Start with each party's net income and combine those for total income. Based on total income, the table at RCW 26.19.020 reveals the total support obligation of the parents. The more total combined income available, the more money should be spent on children, and that's what happens when the schedules are applied.

Next, under the statutes, the total support obligation is divided and allocated to each parent in proportion to his or her share of total income. For example, suppose Jim and Jane have two young children. Jim earns $3,000 and Jane earns $1,500 net each month. With total income of $4,500, the schedules tell us they should be spending $1,050 total on their children's support.

Because Jim has two-thirds of the total income, the statutes tell us he should be contributing two-thirds of the total support. Accordingly, Jim's share of the support obligation is $700 a month. Jane has one-third of the total income, so she is obligated for one-third of the total support obligation, or $350 a month. This seems pretty obvious, logical and fair.

But then the courts do something irrational with these figures. The parent having more care time — the so-called primary parent — is awarded the total support obligation of the secondary parent. So, if Jim wins the status of primary parent, he gets $350 a month from Jane. If Jane wins the status of primary parent she pays nothing and instead receives $700 a month in transfer payment from Jim. Why should the primary parent automatically receive all the support money? The statutes do not require that result.

If Jane wins primary parent status, then Jim pays her $700 a month. That means Jane has $1,050 every month to spend on the children. What does Jim have? Nothing. Suppose Jim buys new jackets for his two children. He is still obligated to pay Jane the $700 transfer payment. Is that what the statutes contemplate? If Jane buys the jackets, the costs come out of her $1,050 in support funds. How is it accounted for if Jim buys the jackets? Jane takes the children to Disneyland with part of her $1,050 monthly support money. What does Jim get to do with the children? Nothing. Part of Jane's support money underwrites the bigger home she has to own to accommodate the children. But then Jim needs a bigger home to accommodate the children every other weekend. How is that expense covered? These problems arise because the courts treat the "support obligation" as a support obligation to the primary parent. But actually the respective support obligations are obligations to the child, not to either parent.

The support obligation is different from the transfer payment. Support obligation is defined at RCW 26.09.011 as the monthly child support obligation determined from the economic table. Transfer payment is defined as the amount of money the court orders one parent to pay to another parent or custodian for child support. While the statute describes how to arrive at the parties' respective support obligation, it does not provide any guidance about how the court is to arrive at the appropriate transfer payment.

Here's the way I think the transfer payment should be calculated, and why it differs from, but is related to, calculation of the support obligation. Going back to Jim and Jane, the statutes and support schedule tell us that their total support obligation is $1,050. That's how much these parents should be jointly spending on their children. The statutes don't tell us, however, which parent should pay what expenses. Based on the "now defunct" notion of the custodial parent, courts today simply give all the money to the primary parent, as if the primary parent has all the expenses of childrearing. Yet we know that both parents have child-rearing expenses, at least if they share parenting time.

Suppose Jane has care of the children 75 percent, and Jim, 25 percent, of the time. Then can't we agree Jane should be incurring 75 percent and Jim should have 25 percent of the expenses? In other words, of the $1,050 total that should be spent on their children each month, Jane should be spending $787.50 and Jim should be spending $262.50. If we trust Jane to spend $787.50 on the children each month (75 percent of the total support obligation), then we should trust Jim to spend $262.50. More importantly, we should give Jim $262.50 to spend on the children each month, so that Jim has the same per diem support money to spend on the children as does Jane.

Against this we should consider each parent's respective support obligation based on income pursuant to the statutory schedule. The transfer payment should be the difference between a party's respective support expense and the party's proportionate support contribution based on income. For Jim, we find he should have $262.50 per month to spend on the children, but his financial obligation (based on income) is to contribute $700 per month. That means he is holding $437.50 from earnings more than the amount he should be spending each month on the children. For Jane, we find that she gets $787.50 to spend on the children each month, but her financial obligation (based on income) is to contribute $262.50. Thus, it is apparent she is short $437.50 of support money each month, while Jim is holding precisely the amount that Jane is short. Accordingly, it is $437.50 per month — not $700 — that is the appropriate transfer payment.

Rather than making support a "winner-take-all" proposition, we should observe that the support obligation by statute should be divided between the parents in proportion to their income. But the respective support obligation is not statutorily the same as the appropriate transfer payment. The transfer payment should be a function of shared child-rearing expenses as well as a function of the parties' respective incomes.

There are hundreds of thousands of "secondary" parents in Jim's shoes, paying $700 per month as a transfer payment, yet having responsibility for care of the children alternate weekends plus other times. Because the transfer payment represents Jim's entire support obligation, it is little wonder he feels slighted by having virtually no money to spend on the children during his parenting time.

The system proposed here is not perfect, as it probably still understates the childrearing expenses incurred by the so-called secondary parent.4 For example, both parents incur extra housing expenses even if one parent only has the children alternate weekends. These extra housing expenses can't realistically be limited to weekend per diems because landlords and mortgage companies don't charge like hotels. So, dividing the support money per diem is not totally fair. Yet, for all its faults, this system is far better than the current status quo.

We need to quit supporting primary parents at the expense of secondary parents by equating presumptive support obligations with presumptive transfer payments. If we fairly allocate the financial burdens of childrearing, then we will go a long way toward eliminating fighting over parenting time. We might even find no further need for designating a primary or secondary parent. Then the outdated concept of "custodial parent" will be truly defunct.

1 See Marriage of Pape, 93 Wn. App. 96, 968 P.2d 417 (Div. II 1998) at n.8. Actually the phrase surfaces in 1999 amendments to RCW 26.09.260 (amendments post-dating the Pape decision). But, there still is no legislative definition of what the phrase means. The phrase still is used as shorthand for the person having the majority of care time, as if sheer numbers of hours defines the primary parent. In fact, a parent with the minority of care time may perform such critical parenting functions as providing discipline. The entire notion of dividing parents into "primary" — and by implication "secondary" — parents is highly suspect.

2 P.O.P.S. v. Gardner, 999 F.2d 764 (9th Cir. 1993).

3 The accountants among our readers aren't surprised that these columns balance precisely.

4 Lawyers commonly refer to this parent as the "non-primary" parent because, although treated as a secondary parent, actual use of that word is unseemly.

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