If you have primary custody (custodial parent), you can still be ordered to pay child support

Most people assume that if you are awarded primary custody, and you have a child living with you the majority of the time, then the other parent will pay you child support. The Dallas Court of Appeals recently heard a case in which Father was ordered to pay child support, even though Father had the child 70% of the time and was considered the custodial parent with primary custody.

How did this happen? Let’s look at In the Interest of ARW, No. 05-18-00201-CV from the Dallas Court of Appeals.

What happened in ARW?

Mother and Father of ARW got divorced in 2015. At the time Mother was kind of broke and lived in an apartment, Father had more money coming in through his job. Father was awarded primary custody in a joint managing conservatorship, Mother had expanded standard visitation. The court ordered Father to pay child support ($1,300/month) even though he had primary custody. Father did not appeal at that time.

Fast forward to 2016. Father files a Modification, asking Mother to pay child support. Mother marries a new guy, buy a $434,000 home, and has a huge increase in her net monthly resources. Father argues that Mother is also intentionally underemployed, and working less than she could even though she only has the child 20-30% of the time.

Trial court orders that Father still has to pay child support, but reduces the amount he is paying by half (to $700/month). Father appeals.

The Dallas Court of Appeals said that

The trial court can order either or both parents to support their child. FAM. CODE § 154.001(a); see also id. § 151.001(3) (every parent has a duty to support his or her child). The trial court may order a joint managing conservator to pay child support to another joint managing conservator. Id. § 153.138. In determining the amount of child support, the court cannot consider a parent’s sex or marital status. Id. § 154.010.

Father argued that since he has primary custody, he is the “custodial parent”, and that child support is designed “to help a custodial parent maintain an adequate standard of living for the child.” Williams, 821 S.W.2d at 145.

The Dalllas Court of Appeals rejects this definition of the custodial parent, instead of adopting the view that BOTH parents in a JMC are custodial. Which, if you go the Texas Attorney General’s website is NOT the definition they use. The AG says that the primary parent is the custodial parent, and the other parent isn’t. 

The Court of Appeals also talks about how the child support guidelines are not mandatory and can be deviated from by a trial court if the trial court makes specifics findings that the deviation from the guidelines is in the child’s best interest. From the opinion-

However, the court may depart from the guidelines “if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.” Id. § 154.123(a). To that end, § 154.123(b) supplies a lengthy list of nonexclusive factors that the trial court “shall consider” when determining whether applying the guidelines would be unjust or inappropriate under the circumstances. Id. § 154.123(b)(1)–(17).

So the ultimate end of child support is to protect the best interest of the child, not to follow the guidelines, or help the parent with primary custody.