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Custody and Child Support: Can You Have One Without the Other?

Many people assume that in order to be paid child support by their co-parent, they have to have “full custody” of their children, or shared custody above a pre-determined threshold of time. Arguing about overnights with their children – because of the impact it has on the child support calculation – can become an unnecessary focus of parties to a custody case.

In Maryland, the calculation of child support is governed by statute, wherein a schedule commonly referred to as the “Guidelines” sets out the amount of child support due in a case. The Guidelines include information like the number of children, each party’s income, and the division of parenting time between the parties. The Guidelines, however, end when the parents’ total monthly income exceeds $15,000 per month. (Starting October 1, 2021, the Guidelines will expand up to $30,000 per month between both parents.)

If the parents fall within the Guidelines, then the child support amount called for in the Guidelines is presumptively correct. If the parents’ monthly income is higher than the Guidelines, however, then the Court is directed to use its discretion in setting the amount of child support.

If you are “above-Guidelines,” don’t you still need custody of your kids in order to receive child support?

Not necessarily. A recently reported Court of Special Appeals case of first impression has held that in high-income, above-Guidelines cases, the discretion of the trial court in awarding child support includes awarding child support to the non-custodial parent, depending on the specific facts and circumstances before the court.

In Kaplan v. Kaplan, the trial court had previously awarded primary physical custody of the minor children to the father, and mother had weekly access with the children. Father earned over $1.3 million annually, whereas mother was earning approximately $50,000 per year. Mother sought an award of child support at the divorce because she did incur expenses for the children, despite not being the custodial parent. The trial court ultimately awarded child support to mother, and father appealed that decision.

In upholding the trial court’s award of child support to mother, despite father having primary custody of the children, the Court of Special Appeals reviewed the legislative intent of Maryland’s child support statutes, and noted that “several factors are relevant in setting child support . . . including the parties’ financial circumstances, the reasonable expenses of the child, . . . and the parties’ station in life, their age and physical condition, and expenses in educating the child” (internal citations omitted).

The Court also reaffirmed that “as the law in Maryland provides, a child is entitled to a level of support commensurate with the parents’ economic positions,” and then held that the Court “will not hamstring our trial courts in the unique circumstances of a particular case when it may be in the best interests of the child to award child support to the non-custodial parent” (internal citations omitted).

Does this mean I can definitely get child support even if I don’t have custody of my kids?

Not necessarily. In addition to this new case only applying to above-Guidelines matters, the Court was also clear that the specific facts and circumstances of any given case have to be considered. In Kaplan, the parties’ respective incomes were so disparate that the trial court was concerned about the children having disparate standards of living in each party’s home. Further, the trial court found that the father, even after meeting all of his and children’s expenses in his own home, could readily afford to pay child support to the mother.

One thing is always true: ensuring your children’s best interests and needs are being met will always be a top priority. And regardless of your specific circumstances, if child support is an issue you are contending with, then you should seek counsel from a family lawyer.

Erik Arena and Casey Florance are divorce attorneys who handle cases involving domestic relations and family law, including custody and visitation. For more information, contact Erik at eparena@lerchearly.com and Casey at cwflorance@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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