6.8.13 Adjustment for Time with Non-Domiciliary Parent

At times, you may have a client that has more than every other weekend (or some other variation of a standard custody order). For example, if a mother has custody every other weekend, plus a day during the week, all holiday breaks and summer, this amounts to nearly 150 days out of the year. The child support guidelines allow for credits in the case of parents who have more than a “standard” every other weekend custodial plan.

In cases of joint custody, the court “shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustments to the amount of child support to be paid during that period of time.”1  If, under a joint custody order, the person ordered to pay child support has physical custody of the child for more than 73 days, the court may order a credit to the child support obligation.2  It is not mandatory for a court to grant this credit.3  How much custodial time is necessary to constitute a “day” is determined by the court but must be at least 4 hours of physical custody.4  The burden of proof is on the person seeking the credit.5

Do the Louisiana Child Support Guidelines automatically allow for a deviation based solely on the amount of time a non-domiciliary parent spends with a child? No. In Guillot v. Munn, the Supreme Court ruled that an automatic deviation is not allowed.6  According to the court,

[T]he party urging a reduction in the child support obligation based on the amount of time spent with the child must bear the burden of proving that he or she exercises shared custody or extraordinary visitation with the child, that the extra time spent with the non-domiciliary parent results in a greater financial burden on that parent and a concomitant lesser financial burden on the domiciliary parent, and finally, that the application of the guidelines would not be in the child’s best interest or would be inequitable to the parties.7

A possible argument that may succeed in this situation is the so-called “11/12ths rule.” For example, if the parents are joint custodians and the mother has the children for the 9 months of the school year and the father has the children for the 3-month summer school-vacation period, the court may give the non-domiciliary parent a break on his child support. At the same time, the court recognizes that the domiciliary parent’s expenses do not substantially decrease just because the children are not in the home during the summer. Thus, one would initially calculate monthly child support as usual for the payor parent. This amount is then multiplied by 11 months and then divided by 12. Thus, payor parent gets credit for one month of support in recognition of the summer custodial time with the children. Remember, findings of the trial court cannot be disturbed absent manifest error, and appellate courts give great deference to those findings. Therefore, if this method would benefit your client, be sure to have the judgment lay out this calculation.

Several cases illustrate the application of this adjustment. In Nixon v Nixon, the court determined that where custody of two children was split between the parents with both children living with the father during the summer months, the support obligation should be first determined separately for the number of children in the domiciliary custody for each parent.8  The amount of child support each parent owes the other is next calculated by multiplying the owed support obligation by the parent’s proportionate share of the combined adjusted income. The amounts the parties owe each other is then offset. After Mr. Nixon’s support obligation was proportioned over 12 months, he owed only $98.47 per month.9

In In re Birkenstock, the children spent 50% of the time with their mother and 50% of their time with the father, and the father wanted his child support obligation reduced from $755 to $377.50. The trial court reduced his obligation to $500 stating, “there is no hard and fast rule to determine just how much to reduce the child support obligation based on percentage of time the children live with either parent.”10

In Falterman v. Falterman, the court held that adjustments to child support do not have to be made in proportion to the amount of time the children spend with the non-domiciliary parent. Here, the children spent 40% of their time with their father during the school year and 60% of their time with him during the summer months. The court found that the children’s ongoing expenses provided by the mother were unaffected during the time the children were with their father and refused to reduce support for the time spent with their father.11

In Temple v. Temple, the court determined that “the statute . . . merely requires that the court consider time spent with the non-domiciliary parent but does not require that the court make an adjustment for this time.”12

Calhoun v. Calhoun states that the court is not obligated to make adjustments and give credits. There are no rules for this reduction based on the amount of time spent with ether parent. It is always discretionary with the court, but a wise practitioner should know this statute if they are defending a child support case.13

• 1La. R.S. 9:315.8(E)(1).
• 2La. R.S. 9:315.8(E)(2).
• 3Id.
• 4Id.
• 5La. R.S. 9:315.8(E)(4).
• 61999-2132 (La. 3/24/00), 756 So. 2d 290.
• 7Id.
• 825,481 (La. App. 2 Cir. 1/19/94), 631 So. 2d 42; see also Berry v. Berry, 2000-0617 (La. App. 3 Cir. 11/2/00), 772 So. 2d 318.
• 9See also Jones v. Jones, 38,790 (La. App. 2 Cir. 6/25/04), 877 So. 2d 1061 (considering the relative time spent with each parent under La. R.S. 9:315.8(E)).
• 1095-586 (La. App. 5 Cir. 12/13/95), 666 So. 2d 1168; see also Atkinson v. Atkinson, 2016-0759 (La. App. 4 Cir. 2/15/17), 212 So. 3d 631.
• 1197-192 (La. App. 3 Cir. 10/8/97), 702 So. 2d 781.
• 1294-1244 (La. App. 3 Cir. 3/15/95), 651 So. 2d 466.
• 1352,915 (La. App. 2 Cir. 8/14/19), 316 So. 3d 1209.