Primary Physical Custody and Child Support

Posted on Nov 16, 2020 by Katie Carter

I’ve talked about custody every which way from Sunday, but often with more emphasis on shared physical custody than primary physical custody, even though moms almost always tell me, within minutes of our first meeting, that they want sole custody of their children. Failing that, of course, the next best thing is often primary physical custody, so then that becomes the focus of our discussions.

Though sole custody is very rarely a thing, primary physical custody still is. At least, it’s a possibility.

Before you start to talk about custody and visitation, it’s important to understand the vocabulary of custody. In most cases, sole custody isn’t so much a thing because legal custody – the type of custody that allows you to make decisions on behalf of the child – is almost always awarded jointly.

Physical custody, which refers to where the child lives and spends the majority of his or her time, can be ordered three different ways: primary physical, shared, or split custody.

Primary physical custody means that the non custodial parent (the parent who has the child less) has 89 or fewer days in a calendar year.

In a shared physical custody scenario, on the other hand, the non custodial parent has the child for 90 days or more.

Because of the difference in the amount of time each parent spends with the child in these two different scenarios, it affects child support.

Under primary physical custody, it doesn’t matter whether dad is a total deadbeat who never sees the child or whether he utilizes every second of his 89 days. Child support is the same, and it’s the maximum amount allowed under the law.

Under shared physical custody, child support becomes a sliding scale. The more time the non custodial parent has with the child, the less he (in this article, we’ll assume it’s a “he”) will pay in support.

Now, I don’t typically think of myself as a cynical person, but I’ll also say this: if I had a nickel for every time a dad whined about how he couldn’t afford child support, I’d have a lot of nickels. So, even though I’d argue that the child support guideline isn’t generous (which I am sure almost everyone familiar with the costs of raising children in today’s society would agree with), the amount of child support is often a hot button issue.

Child support, because it’s established by formula, is not something that is easy to litigate. You put the numbers in – for your incomes, support paid to other children, the amount paid for work related child care, the monthly cost of health insurance for the children only – and out comes a number. It doesn’t matter whether I input the values, the opposing attorney does it, or we wait until we get in front of the judge. The same numbers equals the same child support guideline figure.

But, do you know what people DO litigate? Custody. And, because custody impacts child support, that does translate into people sometimes litigating over child support.

If your child’s father is determined to pay as little child support as possible, he may suddenly become super dad and be more interested in spending as much time with the children as possible. It’s interesting how the possibility of child support suddenly turns a disinterested father into someone who suddenly wants all the he can possibly manage to have.

Look, a dad is a great thing. An involved father even more so; it’s good for children. Studies have consistently shown that. And that’s where the court is often coming from, when it applies the best interests of the child standards to these cases and orders shared custody, even in cases where dad hasn’t been an active participant in the child rearing prior to the litigation. But it is also suspicious behavior, especially when it comes out of nowhere and only after child support has begun to be discussed.

It’s relevant to mention here the new rules, which require that all forms of custody be considered equally. It’s also relevant to point out that, often, even in cases where dad has been disinterested, the court will often give him at least an opportunity to parent, at the outset. Courts generally feel that dads who weren’t hands on during the marriage might choose to become so post divorce or separation, just because they don’t have a wife there to do it for them – and because the alternative is to lose contact with your children.

To a dad who wants to spend more time with the children, the court will often say yes. Of course, that’s assuming there’s no other huge, glaring issues – abuse, addiction, mental illness, whatever. Nothing is guaranteed in custody cases, except that the courts will use the best interests standard.

But, to you, I’d also remind you that custody is often a process. A year’s long process, in some cases. So just because dad gets more parenting time now than you’d like doesn’t mean that you can’t petition for a modification later, based on a material change in circumstances. It also doesn’t mean you can’t appeal. When you appeal a juvenile court result, you get a brand new hearing de novo in the circuit court, which can be an attractive option.

If child support is an issue that you’re facing in YOUR upcoming case, I wouldn’t say to you, “Oh, no, don’t worry, child support is easy,” even though child support, on its face, is quite easy. I’d advise you to pay attention to custody, too, even if your child’s father doesn’t seem that interested in spending more time with the children, especially if he hasn’t met with an attorney yet.

Attorneys often advise dads to get more parenting time in a bid to lower their child support obligation. Is it fair? No. But that’s what I see happen. So, if child support is an issue, you should be familiarizing yourself with custody, too – because it may rear its ugly head during the course of your litigation or negotiation, even if (as far as you know) the only outstanding issue is child support.

For more information or to discuss your case one on one with one of our experienced child support attorneys, give our office a call at 757-425-5200.