From Guest Blogger, the Honorable Barry W. Knobel
I’ve been involved in a number of mediations in which we were working to settle a child support issue for the parties who had agreed upon a “shared parenting” arrangement, using, essentially, a Paparella-styled formula. In trying to establish a “range of acceptability” within which to work, the parties agreed, with certain variables, upon the language of the attached provision.
I am finding that in those cases where the parents (mother or father or both parents) contend they are spending a substantial (e.g., an “extraordinary”) amount of money on the children, they have difficulty in reaching an agreement as to a fixed amount of child support, based exclusively on the Child Support Guidelines factors/criteria shown on the DSS Form. Consequently, we tried this fairly simple process which seemed to work for them:
Using a Schedule C worksheet form, on the line towards the bottom designated as “Child(ren)’s extraordinary medical expenses”, we inserted on that line what the parents had agreed were their respective monthly direct contributions toward the children’s non-medical expenses. (I can find nothing in the Guidelines which limits this criteria only to extraordinary medical expenses, and, in fact, the Guidelines expressly allows for a consideration of these extraordinary non-medical expenses if agreed to by the parties or as ordered by the family court.)
Please remember that you will never find perfection in mediation, but you can establish a “range” within which the parties are prepared to work towards an agreement. Using this form in this fashion could, at least, provide the parties with potential “child support ranges” within which to work.
If you have not already done so, you might want to try this process to see if it helps you. Also, because I consider everything I do to be a constant work-in-progress, I am always open to your suggestions and criticisms which can only improve upon this process.
Finally, please also remember that the practice of family law in South Carolina, and especially the practice of family court mediation, can be brutally hard; and we family law attorneys should always rely upon each other for constant help, contribution and support.
The following is language I propose using, when I am acting as a mediator, for child support agreements involving “Shared Parenting”:
1. The mother and father acknowledge that the South Carolina Child Support Guidelines expressly provides for the following in matters affecting the parties’ “shared placement” of their (child) (children):
“For the purpose of this section, shared physical custody means that each parent has court-ordered visitation with the children overnight more than 109 overnights each year (30%) and that both parents contribute to the expenses of the child(ren) in addition to the payment of child support (emphasis added). If a parent with visitation does not exercise the visitation as ordered by the court, the custodial parent may petition the court for a reversion to the level of support calculated under the guidelines without the shared parenting adjustment. The shared physical custody adjustment is an annual adjustment only and should not be used when the proportion of overnights exceeds 30% for a shorter period, e.g., a month. For example, child support is not abated during a month-long summer visitation. This adjustment should be applied without regard to legal custody of the child(ren). Legal custody refers to decision-making authority with respect to the child(ren). If the 109 overnights threshold is reached for shared physical custody, this adjustment may be applied even if one parent has sole legal custody. …
Adjustments for each parent’s additional expenses on the child(ren) are made by adding the child(ren)’s share of any reimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the tribunal (emphasis added), less any extraordinary credits agreed to by the parent or ordered by the tribunal according to their income share. …”
2. In consideration of the above provision and in reaching a compromise agreement on the amount of the (father’s) (mother’s) current child support obligation, the parties agreed to employ the following formula:
a. Father’s gross monthly income:
b. Mother’s gross monthly income:
c. (Father’s) (Mother’s) health insurance premiums allocated for the child(ren):
d. Number of “overnights” for mother:
e. Number of “overnights” for father:
f. Alimony to be paid by (father) (mother), if applicable:
g. Child support or alimony being paid (by priority) by (father) (mother), if applicable:
h. Number of other children in the (father’s) (mother’s) household, if applicable:
i. Extraordinary expenses for the child(ren) paid by the (mother):
j. Extraordinary expenses for the child(ren) paid by the (father):
3. Based on this formula, the parties agree that the (father’s) (mother’s) current child support amount shall be $__________________ which shall be paid (weekly) (bi-weekly) (bi-monthly) (monthly), with the first payment due on ______________________, and with all subsequent payments due by each payment period “due date” thereafter.
[Add: Direct payment with 5-day affidavit clause before the payment is ordered through the court, or by direct-deposit, or by wage-withholding.]
4. In that the (mother’s) (father’s) payment of extraordinary monthly expenses for the child(ren) have been factored into the (father’s) (mother’s) established child support obligation, above, the parties agree and stipulate that the (father) (mother) shall have no contractual obligation to contribute any additional monthly expenses by or on behalf of the child(ren) unless the (father) (mother) voluntarily agrees to do so.
5. Future modifications of child support.
a. The parties stipulate, acknowledge and agree that in reaching an arms-length agreement regarding the issue of child support, set forth above (the amount, the method of payment, the period of time for payment, etc.), either party retains the right to request or seek a subsequent modification (increase or decrease) of the child support amount and/or method of payment based upon a substantial or material change of circumstances affecting either party.
b. For the express purposes of this agreement, both parties stipulate, acknowledge and agree that, in consideration of South Carolina Code Ann. §63-17-470 (13), in arriving at the amount of child support set forth in this agreement, the parties have neither exclusively based, nor exclusively used, nor exclusively relied upon the factors/criteria set forth in the South Carolina Child Support Guidelines. Furthermore, neither party can know nor predict any future events, occurrences or circumstances which may impact upon or effect this child support obligation; and, consequently, both parties expressly stipulate, acknowledge and agree there are no future circumstances, factors or criteria, of any nature or kind, which they considered to be “within the contemplation of the parties” as of the execution date of this agreement, unless otherwise expressly set forth in this agreement, and either party may seek a modification of child support and may be entitled to a modification of child support without being held to a “higher standard” as may have been set forth in the Floyd v. Morgan decision.
For the purposes of this provision, “overnight” is defined to mean “of, lasting or staying the night” [See: Webster’s New American Dictionary].
For the purposes of their agreement, both parties agree that a “substantial or material change of circumstances” shall be defined to mean “a proper showing of a change in either the child’s needs or the supporting or supported parent’s financial ability”. Furthermore, both parties agree that “the party seeking the modification has the burden to show changed circumstances”. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006).
SCCA, Section 63-17-470: “(13) agreement reached between parties. The court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child or children.”
See: Floyd v. Morgan, 383 S.C. 469, 681 S.Ed.2d 570 (2009). N.B. The holding of Floyd v. Morgan that it took a higher burden of proof to modify support agreement was subsequently overruled in the case of Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)