Atlanta Divorce Attorney Blog

In Georgia, child support is calculated using the child support worksheets to obtain a presumptive child support amount, which can then be deviated from using several specified grounds. OCGA §19-6-15. One such deviation is the parenting time deviation which can apply “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” OCGA §19-6-15(i)(2)(K)(i). The statute, however, gives no guidelines for what the deviation should be.

I recently attended a seminar where several Atlanta-based judges discussed this issue using the example of a child who resides with each parent equally. One Fulton county judge stated that, even with equally shared visitation, if one parent makes significantly more money than the other, some child support should be paid to the other parent. Another Judge agreed, with the caveat that if the higher wage earner was paying other expenses such as day care and/or medical, this should count toward support and, thus, it is possible that no child support would be paid to the other parent. Thus, since it is in the discretion of the judge, it is likely that the deviation will vary depending on your county and your judge. All of the Judges believed, however, that, in this situation, the calculation should start with the presumptive child support amount and go down from there, rather than assuming there should be no child support paid.

The Supreme Court of Georgia recently made an interesting, if not surprising, ruling, denying a parenting time deviation in a joint custody case. Willis v. Willis, S10F1357 (January 24, 2010). In that divorce case, the parties were awarded joint legal and physical custody of their only child, with physical custody alternating weekly. Id. The trial court designated the husband as the non-custodial parent “[s]olely for purposes of calculating child support.” Id. After considering the parties’ incomes and the wife’s payment of the child’s health insurance premiums, the court ordered the husband “to pay monthly child support of $961 to Wife and to divide evenly with Wife the child’s uninsured health-care expenses.” Id. at 2.

The husband appealed, claiming, “the trial court abused its discretion and unjustly enriched Wife” when it did not give him a parenting time deviation, given the joint physical custody. Id. The Supreme Court of Georgia agreed with the trial court that in order to grant a deviation, the trial court “must find that the application of the presumptive amount of child support would be unjust or inappropriate and that the best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.” Id. at 4, OCGA 19-6-15(c)(2)(E)(iii). The Court found no abuse of discretion in the trial court’s holding that the presumptive amount of child support was not excessive or inadequate, nor did it unjustly enrich the wife, and that a downward deviation would not be in the best interests of the child. Id. at 4.

This case shows that a parenting time deviation is not presumed just because of a shared custody arrangement. There are certain findings necessary for the court to grant this deviation and, without those findings, the deviation will not be granted. This case might ultimately make it a little more difficult for a parent to get a parenting time deviation, but it is not impossible as long as you present the proper evidence to the court – the presumptive amount of child support is unjust or inappropriate, and the child’s best interest will be served by the deviation.

The court can deviate from the presumptive child support amount calculated by the child support worksheets for several reasons, IF the child support deviation is in the best interest of the child(ren) for whom child support is being determined. OCGA §19-6-15(i)(1)(A). The tenth deviation category under the statute is parenting time. OCGA §19-6-15(i)(2)(K).

Generally, the Georgia child support guidelines are “based upon expenditures for a child in intact households.” OCGA §19-6-15(i)(2)(K)(i). Since, after a divorce, a child is spending time in two households, the presumptive amount of child support may not be appropriate. The court may order a parenting time deviation “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” Id. If the child resides with both parents equally, for example, the parent designated as the non-custodial parent may request a downward deviation in his/her child support obligation so that he/she has sufficient funds to spend on the child during the extended time the child is residing with him/her.

It should be noted that a claim for a parenting time deviation may only be between the custodial and non-custodial parent, not any third parties. OCGA §19-6-15(i)(2)(K)(iii).

Starting on January 1, 2007, the formula for calculating child support in Georgia changed drastically. For details, see our previous post on how to calculate child support in Georgia. In addition to the incomes of both parties and necessary expenses (i.e. health insurance and work related child care costs), the Court can consider several deviations in calculating the non-custodial parent’s child support obligation.

One deviation that has come up often since the implementation of the new child support guidelines is the Parenting Time Deviation. The child support obligation table at the beginning of the child support worksheets takes into account expenses in an intact household. Thus, according to Georgia law, this deviation is applicable “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.” O.C.G.A. §19-6-15(i)(2)(K)(i).

The Parenting Time Deviation is in the Court’s discretion and the Court is required only to consider the best interests of the child in making its determination. Further, a Parenting Time Deviation cannot be awarded if it seriously impairs the ability of the custodial parent to provide basic necessities, such as housing, food and clothing, for the children.

We recently had a case where the Father/Non-Custodial Parent had visitation time with the minor child totaling approximately 159 days per year, which is greater than “standard” visitation time. In spite of the fact that his income was nearly 6 times that of the Mother, he received a Parenting Time Deviation. The court in Forsyth County essentially held that he would have increased expenses due to his increased visitation time for which he would need additional expendable income and, thus, found this deviation to be warranted.

Due to the recent enactment of the new child support guidelines, there is not yet significant precedent on how the Judges are handling the Parenting Time Deviation. What is clear, however, is that when arguing for or against this deviation, the most important consideration is the best interests of the children.