If you are a frequent reader of this blog, you know that child custody and visitation are fluid orders as that often change with the needs of the child. This makes a lot of sense because a 3 year-old is very different from a 16 year-old and will therefore have a very different child sharing schedule. Also as a frequent reader, you know that a change in the time sharing percentage of the children often justifies a change in the child support orders. Small changes in the time share percentage are unlikely to make a big impact. Big changes in guideline child support require major shifts in the child sharing percentage.
Though not very common, there have been cases where the parent who pays child support ends up with 100% time share of their child; even if only temporarily. It would stand to reason that their child support obligation should be reduced to $0 during the time they cared for the child full-time. However, in order to modify the support orders, you must file a motion requesting the modification; you cannot simply stop paying child support.
Imagine the following scenario. Mother and Father share joint physical custody of their one child; meaning each party has 50/50 care. Each month, Father pays Mother $1,000 in child support for the child. After several years, Mother is offered the opportunity to travel to Europe for 12 months for her job. She cannot take her child with her so Father will need to provide 100% of the care for the child during these 12 months.
During the 12 months Mother is abroad, Father does not pay her any child support, nor does he ask the Court to relieve him from this order. Upon Mother’s return to the United State, she files a motion seeking $12,000 in child support arrears for Father’s missed payments. Technically, Father owes this money because it is court ordered child support. However, since Father paid all of the child’s expenses and cared for the child 100% of the time, it would be unfair to order him to pay back child support to Mother.
This was analogous to the issue faced by the Court in Jackson v. Jackson. In that case, Mother sought child support arrears from Father during a period when the child lived with Father 100% of the time. The trial court sided with Mother noting that Father’s request was an attempt to modify child support order retroactively. Father appealed and the Court of appeals held that child support orders cannot be retroactively modified, but the trial court does have the equitable discretion to directly discharged Father of his obligation for child support during any period when Father had 100% care of the child. In essence, the Court of Appeal held that Father satisfied his financial obligation for his child by paying 100% of her necessary expenses during the period she lived with him full-time.
This is now commonly referred to as a “Jackson Credit” and applies to all child support orders whether they arise from dissolution of marriage, a legal separation, or a paternity action.
If you are faced with a child support arrears motion and have evidence to show your child was living with you full-time during any part of the arrears period, you may be able to successfully claim a Jackson Credit. In the example above, it was easy to show that Father was caring for the child full-time; real life is usually not so clear cut. That is why it is important to speak with a qualified Family Law attorney about your case and your rights. The attorneys at Bickford Blado & Botros have the knowledge and experience to advise you in connection with this type of case.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding Jackson Credits. 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.