Which parent gets credit for time when children aren’t physically with either?

If you have minor children and are paying or receiving child support, you are probably already aware that the timeshare percentage, or the percent of time that the child/ren are with each parent, plays a role in determining the amount of guideline child support. Once two parents have set a schedule and determined when the child/ren will be with each parent, it would appear that determining a timeshare percentage is a piece of cake. But, while this may be clear in many cases, there are certain situations where the timeshare percentage can become a contested issue that may end up having to be litigated in court.


For example, the timeshare percentage may be in dispute when parties have a child that is in boarding school. Now, I know what you may be thinking: “Why is this even a dispute? If the child is away at school and doesn’t live with either parent, then shouldn’t each parent get credited for 50% of the child’s time when it comes to calculating guideline child support?”

Well, if that’s what you are thinking, you may be wrong! Under California law, in determining the proper timeshare percentage, physical custody of a child does not matter as much as “primary physical responsibility” does. Now the question becomes, “What is primary physical responsibility?”

Primary physical responsibility, in an effort to explain it in the most basic way, is sometimes referred to as the “throw-up test.” The throw-up test is this: If a child is away from both parents (most often will be when he or she is away at school), and the child throws up, which parent will be called to pick the child up? Typically, this is the parent who will be determined to have primary physical responsibility of the child at that time.

As cases on this issue have made their way to the California courts, a more formal analysis had to be done than the so-called throw up test. So the courts, in an effort set a more concrete way of determining which parent has primary physical responsibility at any time when the child is not physically with either parent, have set forth some factors that may assist in the determination.

The first thing to know is that the parent who is trying to get credit for time the child is away from both parents has the burden to prove that he or she is the parent who has primary physical responsibility. In the 2004 case DaSilva v. Dasilva, the Court listed four factors relevant to this determination:

“1. who pays for transportation or who transports the child;

2. who is designated to respond to medical or other medical emergencies;

3. who is responsible for paying tuition (if any) or incidental school expenses; and

4. who participates in school activities, fundraisers, or other school-related functions.”

(DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1034–35)

You should keep in mind that in matters such as this, where there is no concrete rule but merely factors to be weighed, the courts have pretty broad discretion in making a determination. As such, it is important that each of the above listed factors, and any other factors that may be relevant to determining primary physical responsibility, are fully and persuasively presented to the court. In such matters, it is important to have competent and experienced family law counsel on your side.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding calculation of custodial timeshare. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.



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