The Better Chancery Practice Blog

Picking up where we left off yesterday …

Another specie of non-support agreement presents itself when the parties agree that husband will support the child or children in his care, and wife will support the child or children in her care, with no child support changing hands.

In Roberts v, Roberts, decided March 19, 2013, by the COA, the court found no error in the chancellor’s decision modifying child support to eliminate the father’s duty to pay the mother, due to the fact that one child had come to live with the father, leaving one child behind with the mother, based on the parties’ extra-judicial agreement. The court stated that, “Because each parent had primary physical custody of one child, we do not find that the chancellor abused his discretion when he held that neither Scott nor Stephanie was obligated to pay child support.”

A similar situation arises when one parent has the child or children half the time. We see it every now and then in this district with oilfield workers, who work two-weeks out and two-weeks in, and there is a shared custody arrangement. Same with parents who rotate custodial periods.

The logic is almost irrefutable in those cases that it makes no sense to order the father to pay the mother child support, and the mother to send child support in turn to the father. 

I say “almost irrefutable” because there are cases where there is such a disparity in income that I order the higher income parent to pay some support to the other parent, just so that the children will not have strikingly different standards of living in each household. In one case, the father worked offshore earning $70,000 a year, and the mother worked part-time in a convenience store. The parties wanted me to approve an agreement that each would support the child in his or her custody. I refused, because although each parent had one child living with him or her, it was only fair that the father pay child support so that the child with him would not live “in the lap of luxury,” while the other child with the mother would live near destitution.

The duty of the parent to support the child who is with him or her is distinguishable from the situation where the parties simply waive child support altogether. The former is allowed because the child is going to be supported; the latter is not allowed because there is no duty of support at all.