Synopsis: The revised child support guidelines now allocate a portion of the child support to be expended by each parent. The adjustment was not arbitrarily determined but is based on a specific methodology presented.

The "Directions, Comments for Use and Examples for Completion of Form No. 14"¹ issued by the Supreme Court of Missouri on July 9, 1998, effective October 1, 1998,² includes at line 11 an "Adjustment for a portion of amounts expended by the parent obligated to pay support during periods of overnight visitation or custody" (hereinafter the "custody adjustment"). This article attempts to present a methodology consistent with the custody adjustment assumptions and resulting directions, comments and adjustment numbers.³ It was prepared with the hope that if the practicing bar has a better understanding of the custody adjustment concept, it will assist them in the application of the custody adjustment to a determination of the appropriate child support amount.

Background

Section 452.340.8, RSMo Supp 1997, directs that, not later than July 1, 1998,⁴ "the child support guidelines shall be published by the supreme court and specifically list and explain the relevant factors and assumptions that were used to calculate the child support guidelines." Effective April 1, 1998, the Supreme Court of Missouri revised the schedule of basic child support obligations (hereinafter the "chart") and published the assumptions upon which the chart is based.⁵ Among those assumptions were:

(2) The schedule of basic child support obligations is based on the income shares model, which seeks to apportion to the child the amount that the parents would have spent if the household were intact.

(11) The schedule of basic child support obligations does not consider the costs of the parent obligated to pay support when that parent has physical custody of the children entitled to support.

The income shares model, as used in the Missouri guidelines, attempts to draw from the chart an amount expected to be spent on the child or children given a combined income level of the parties. The sum determined from the chart is the total sum to be spent on the child or children without regard to how much time is spent with either parent. The guidelines envision that, in addition to the money paid by the parent paying support,⁶ the parent receiving support will also make a contribution toward the sum to be spent on the child or children. In the previous two versions of the directions and comments to Form 14, the parent receiving support was allowed to expend 100% of the money allocated for support although the parent paying support may have had significant periods of visitation or custody (hereinafter at times "visitation").

Section 452.340.1(5), RSMo Supp. 1997, as amended by Senate Bill 910 in 1998, enumerates as one factor for the determination of the child support to be paid "the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements." The Missouri legislature recognized that the parent paying support also has expenses that need to be considered in the determination of the appropriate presumed child support amount.

Prior to publication of the assumptions, many attorneys and judges believed the chart had already been adjusted to reflect, at least in part, the expenses incurred by the parent paying support during that parent's periods of visitation. With publication of the assumptions, and considering the amendment to § 452.340.1(5), this misconception needed to be addressed.

Basic Child Support Amount vs Presumed Child Support Amount

The basic child support amount, derived from the chart, is the dollar amount representing the total portion of the combined income of the parties to be expended on the child or children. The presumed child support amount is that part of the basic child support amount to be paid by the parent paying support, for expenditure on the child or children by the parent receiving support.

The money to be expended on the child or children is the basic child support amount, not merely the presumed child support amount paid by the parent paying support. In addition to the Presumed Child Support Amount, it is expected that the parent receiving support will expend part of his or her income on the child or children, based on his or her percentage of the combined income.

The line 11 adjustment attempts to allocate the portion of the basic child support amount that is to be expended on the child or children by each parent. If the parent paying support is to be allowed to spend part of the basic child support amount directly on the child or children, the amount to be expended by him or her must be subtracted from the presumed child support amount that the parent paying support would otherwise be obligated to pay, so that the parent paying support is left with the portion to be expended by him or her. Thus, the custody adjustment is multiplied against the basic child support amount but reduces the presumed child support amount.

In short, the contribution of each parent to the basic child support amount is first determined under the income shares model, based on each parent's share of the combined income. Then, the basic child support amount is allocated considering the amount of time each parent has visitation or custody with the child or children.

Methodology and Additional Assumptions

Previous presumed child support amounts were determined as if the child or children were residing with the parent receiving support 100% of the time. The basic child support amount included neither an adjustment for visitation nor for any direct expenditures made by the parent paying support while the child or children are with that parent. An increasing number of states have recognized, as has our legislature, the need for an adjustment for visitation and shared parenting time. When the actual spending patterns on children in non-intact families are examined, the following becomes obvious: (1) parents paying support incur some direct costs for their children, such as food, transportation, and entertainment, while caring for their children regardless of the level of time that the child or children spend with that parent; and (2) parents receiving support do not incur direct expenses for similar items during the time their child or children are being cared for by the other parent. In other words, marginal expenditures for items such as food, transportation, and recreation for a child are variable expenditures incurred only by the parent who has the child (i.e., they follow the child and are incurred only by one parent at any given time) while the child is with that parent. The absence of a mechanism in the guidelines to adjust support awards for variable expenditures during visitation periods is inconsistent with income shares and marginal cost principles, since the parent paying support is required to make duplicate expenditures for the child (as a child support payment and as a direct expenditure) while the child is with the paying parent. Thus, a presumed child support amount without a custody adjustment is appropriate only when there is absolutely no visitation or shared parenting and the parent receiving support is providing for the child's needs 100% of the time.⁷

A further review of the actual spending patterns on children in non-intact families would reveal that, unlike the intact family which has expenses for only a single residence, there are often increased housing costs associated with the exercise of visitation. If a parent paying support has no overnight visitation or only infrequent overnight visitation, he or she will generally not incur significant additional housing costs to accomodate such visitation periods. If, however, the parent paying support has visitation, on average, more than two days per week he or she is likely to need an additional bedroom, etc., to accomodate the child or children when in his or her custody. On the other hand, once the visitation time is over a determined threshold percentage of the year, the actual expenditure each parent incurs for these expenses does not vary with the number of periods of overnight visitation, nor does the addition of these expenditures by the parent paying support reduce the expenditure necessary by the parent receiving support. These type of expenditures are thus duplicated fixed expenditures.

A final category of expenditures for children, generally called non-duplicated fixed expenditures, are usually paid only by the parent receiving support and do not vary with the amount of time a child spends with each parent. Examples of non-duplicated fixed expenditures are: the registration costs for the child to play sports for the season, most routine clothing costs, etc.

Thus, in summary, the basic child support amount from the chart is the total sum to be spent on the child or children regardless of the time spent with each parent and can be divided into three categories of expenditures:

(1) Variable expenditures are child-related expenditures that vary directly with the amount of time a child spends with each parent, such as food.

(2) Duplicated fixed expenditures are child-related expenditures that do not vary with the amount of time a child spends with each parent but are incurred by both parents, such as housing.

(3) Non-duplicated fixed expenditures are child-related expenditures that do not vary with the amount of time a child spends with each parent and are usually incurred by the parent . . . [receiving support], such as, clothes.⁸

To determine the appropriate portion of the basic child support amount to be allocated for expenditure by the parent paying support under this analysis, the percent that each type of expenditure comprises of the total basic child support amount must be determined.⁹ The Missouri guidelines assume the following percentages when determining the custody adjustment:

variable = 38%

duplicated fixed = 30%

non-duplicated fixed = 32%

It is generally recognized that the parent paying support will incur variable expenses while the child or children are in his or her care over the entire range of visitation exercised. However, the Missouri guidelines assume that if the parent paying support has visitation less than 10% of the year, any costs he or she may incur will not be significant. Additionally, it is generally recognized that the parent paying support will incur duplicated fixed expenditures only if he or she is awarded visitation in excess of some percent of the year; i.e., how many periods of overnight visitation must the parent paying support exercise before he or she is required to obtain housing suitable for the child or children. The Missouri guidelines assume that the parent paying support will not incur duplicated fixed costs until he or she has overnight visitation 30% or more of the year. Lastly, the Missouri guidelines assume the parent paying support will incur no significant non-duplicated fixed expenses.

Custody Adjustment As a Percentage of the Basic Child Support Amount

The custody adjustment was not arbitrarily determined. It was determined mathematically based on the assumptions of the chart and the additional custody adjustment assumptions that were made.

There are two different mathematical calculations depending on whether: (1) variable expenditures alone are to be considered; or (2) both variable and duplicated fixed expenditures are to be included. The threshold number of days of overnight visitation per year that must be awarded and exercised before both variable and duplicated fixed expenses are incurred varies from state to state.¹⁰ The Missouri threshold has been established at 30% of the year, 110 days or more. Under this methodology, if a parent paying support is awarded and exercises 109 or fewer overnight periods per year, he or she will only be allocated a portion of the variable portion of the basic child support amount. But if the parent paying support is awarded and exercises 110 or more days of visitation per year, he or she should be allocated a portion of both the variable and duplicated fixed portions of the basic child support amount.

By way of example, if the parent paying support has visitation 96 days (26.3% of the year) he or she should be entitled to spend 26.3% of the variable portion (38%) of the basic child support amount but none of the portion allocated to duplicated fixed or non-duplicated fixed expenditures. Mathematically, 26.3% of 38% of a number is the same as 10% of that number.

96 days ÷ 365 days = 0.2631 = 26.3% of the year

0.263 x 0.38 = 0.0999 = 10% custody adjustment

($1,000 x 0.38) x 0.263 = $380 x 0.263 = $99.94 = $100

And $1,000 x 0.10 = $100

Thus, the approprite custody adjustment for a parent with visitation 26.3% of the year would be 10% of the total basic child support amount, if only the variable portion of the child's expenses is considered. [See "Table 1" for 96 days.]

The vast majority of the visitation and custody awards entered by the courts throughout Missouri appear to be 109 or fewer days per year.¹¹ A table with three ranges is contained within the directions to provide the appropriate custody adjustment when the number of visitation periods is 109 or fewer days per year. Such a table not only makes the custody adjustment easier to determine, eliminating the necessity of doing a mathematical computation in each case, but also reduces the likelihood of the need for a modification as visitation days are missed or days are added as long as the number of days exercised remains within the same range. Therefore, no math is necessary to determine the custody adjustment if the parent paying support is awarded and exercises overnight visitation 109 or fewer days per year.

Table 1 below contains a mathematical explanation as to how the custody adjustment, for the ranges included in the table in the directions for line 11, was determined.

Table 1

Custody Adjustment Ranges per Directions when Visitation 109 or fewer days per yearx

# days	% of year	Median % time (t)	Formula	Custody Adjustment
Less than 36	< 10%		If "t" is less than 30%,	0%
36 - 72	10% - 20%	0.150	adjust for Variable (0.38)	(0.0570) 6%
73 - 91	20% - 25%	0.225	costs only.	(0.0855) 9%
92 - 109	25% - 30%	0.275	[ "t" x 0.38 ]	(0.1045) 10%

Appropriate Custody Adjustment When Visitation is 110 or More Days

Assumption #12 provides that in determining the amount of any adjustment it should be assumed that the parent paying support "will incur . . . duplicated fixed expenditures for the children if that parent exercises visitation or custody for 110 or more overnight periods per year." Therefore, in addition to an allocation of a portion of the variable portion of the basic child support amount, the parent paying support should also be entitled to an allocation of a portion of the duplicated fixed portion of the basic child support amount. The directions do not include ranges for the appropriate custody adjustment when the parent paying support exercises visitation 110 or more days per year; but the directions do provide that "[i]f the parent obligated to pay support is or has been awarded periods of overnight visitation or custody for more than 109 days per year, the adjustment for that parent may be greater than 10%."¹² While the directions do not require an adjustment above 10%, if the percentage of overnight periods of the year is 30% or more, then both variable and duplicated fixed expenditures (38% + 30% = 68%) should be considered. In such a case, the following mathematical computation for the determination of the custody adjustment is suggested.¹³

Custody Adjustment Formula

If the parent paying support is to be allocated a portion of both the variable and duplicated fixed portions of the basic child support amount, then under the formula the minimum custody adjustment appropriate if the parent paying support exercises visitation 110 days per year would be 20% and the maximum custody adjustment if he or she exercises 183 days per year would be 34%.¹⁴ The maximum custody adjustment is 34%, not 50%, because the parent paying support is never allocated any of the non-duplicated fixed portion (32%) of the basic child support amount in the custody adjustment formula. The benefit of this custody adjustment methodology is that it is applicable over the entire range of visitation time and can also be effectively used when the parties are in a shared custody arrangement.

Table 2 is a summary of the computations using the suggested formula, rounded to the nearest day, for each day above the threshold of 110 days, up to 183 days, that the parent paying support has visitation.

Table 2

Custody Adjustment for Both Variable and Duplicated Fixed Costsx

# days	Custody Adjustment	# days	Custody Adjustment	# days	Custody Adjustment
110	20%	132 - 136	25%	159 - 163	30%
111 - 115	21%	137 - 142	26%	164 - 169	31%
116 - 120	22%	143 - 147	27%	170 - 174	32%
121 - 126	23%	148 - 152	28%	175 - 179	33%
127 - 131	24%	153 - 158	29%	180 - 183	34%

For the same reasons that the development of ranges were desirable in the directions for 109 or fewer days, a series of ranges could be developed for above 110 days. The author's suggested ranges, when the parent paying support exercises visitation 110 days or more per year, are set forth below in Table 3A, considering both variable and duplicated fixed costs, and Table 3B, considering only variable costs.¹⁵

Table 3A

Suggested Custody Adjustment Ranges when Visitation 110 or more days per year

With an Allocation of Both the Variable and Duplicated Fixed Costs

# days	% of year	Median % time (t)	Formula	Custody Adjustment
110	30%	0.301	If "t" is 30% or more, adjust	(0.2046) 20%
111 - 140	30% - 38%	0.344	for both Variable (0.38) and	(0.2339) 23%
141 - 180	38% - 50%	0.440	Duplicated Fixed (0.30)costs.	(0.2992) 30%
181 - 183	50%	0.499	[ "t" x 0.68 ]	(0.3393) 34%

Summary

The custody adjustment recognizes that the parent paying support incurs direct expenses for the child or children during those periods that the parent paying support has visitation or custody. The custody adjustment attempts to allocate a portion of the basic child support amount to the parent paying support related to the amount of time the child or children spend with each parent. The basic child support amount can be sub-divided into three (3) categories of child rearing expenditures, and the parent paying support is allocated his or her share of the variable portion of the basic child support amount by means of an adjustment from the table contained in the directions. In addition, a parent paying support who exercises visitation 30% of the year or more may be entitled to an allocation of the duplicated fixed portion of the basic child support amount but should at least receive an increase attributed to the higher variable portion.. The additional adjustment, above 10%, is discretionary, but should not be arbitrary. The additional adjustment can be determined, based on the assumptions made and the methodology adopted, using either the suggested mathematical formula or, for periods of 110 or more days, taken directly from a table of ranges such as those proposed. Table 4 is a summary of the ranges in the directions and the author's proposed ranges for 110 or more days.

Endnotes

1 Civil Procedure Form 14 is the "Presumed Child Support Amount Calculation Worksheet."

2 West Missouri Cases, 969 S.W.2d No. 2 (August 4, 1998), Ct.R.1-Ct.R.21. The "Directions" provide: "Form No. 14, including the directions, comments, and assumptions, may be used prior to October 1, 1998, and shall apply to all proceedings in which the order or judgment is entered after October 1, 1998."

3 The analysis is that of the author after extended discussions about, and a review of publications on, the treatment of the subject by other states. The analysis has neither been published or approved by the Supreme Court of Missouri or its committees.

4 Senate Bill 910, Second Regular Session, 89th General Assembly (1998) extended that date to October 1,1998. Section 452.340.8, RSMo, now reads in part: "Not later than October 1, 1998, the Missouri supreme court shall publish child support guidelines and specifically list and explain the relevant factors and assumptions that were used to calculate the child support guidelines." (Emphasis added.)

5 The Directions, Comments for Use, Schedule and Assumptions were originally issued March 2, 1998, effective April 1, 1998 (959 S.W.2d LVII - LXXXIV, LXXVII). The Directions and Comments for Use, but not the Assumptions or Schedule, were withdrawn March 31, 1998 (962 S.W.2d XXXIII). Previous editions of the guidelines were also based on the same assumptions, though they were not previously published. The Supreme Court's July 9, 1998 order added a footnote to assumption 2 and slightly changed assumption 3. Assumption #12 was published by the Supreme Court of Missouri on August 24, 1998, effective October 1, 1998, to include the line 11 assumptions. [West Missouri Cases 973 S.W.2d No. 2 (September 29, 1998) Ct.R-22.

6 The new directions and comments have eliminated the terms "custodial" and "non-custodial" and now use the terms "parent entitled to receive support" and "parent obligated to pay support." I have shortened the new terminology to "parent receiving support" (PRS) and "parent paying support" (PPS).

7 Policy Studies Inc., the consultants who prepared the Missouri chart, provided the committee reviewing the proposed guideline changes with excerpts from their reports, Economic Basis for Updated Child Support Schedules, for both the states of Arizona and New Jersey; and also excerpts from the Final Report of the Supreme Court Family Practice Committee on New Jersey Child Support Guidelines. The various methodologies used by the states to address the visitation and shared custody arrangements are more fully set forth in those documents, which have been the basis, in part, for portions of this article. The Missouri custody adjustment assumptions, directions, comments and numbers are consistent with the Arizona methodology except as noted.

8 West's Missouri Cases, 973 S.W.2d No. 2 (September 29, 1998) Ct.R-22 - Ct.R-23.

9 Arizona and New Jersey have studied what these percentages should be and have set the figures respectively at: variable = 38% / 40%; duplicated fixed = 30% / 40%; and non-duplicated fixed = 32% / 20%. Missouri has adopted the same percentages as Arizona. If the higher New Jersey figures had been used, a higher custody adjustment and lower presumed child support amount would have resulted.

10 "Among Income Shares states the shared custody threshold ranges between 25% and 35%."-Policy Studies Inc. Arizona uses 20% and New Jersey uses 25% as their thresholds.

11 The committee reviewing the guideline changes was provided and examined normal visitation and custody awards for selected Missouri counties during its review.

12 West's Missouri Cases, 969 S.W.2d No. 2 (August 4, 19998) Ct.R-16.

13 The formula suggested is consistent with the Missouri custody adjustment assumptions, is the same as that used by Arizona, and is simple in its application; simplicity being a fundamental goal of the original child support guidelines working group. Also consistent with the Missouri assumptions is the more complex formulas known as Betson A and Betson B. Unlike Betson A, the Betson B formula can be used at all levels of visitation or shared custody and is similar to the hybrid developed for New Jersey. The formula for determining the amount of the noncustodial parent's child support obligation under Betson B as set forth in Table 7 in Chapter VI of the Arizona Economic Basis for Updated Child Support Schedules is as follows:

S x [BSA + (2 x (t) X DF)] - [(t) x V) + (2 x (t) x DF)]

Where: S = Parent paying support's share of combined income

t = Proportion of child's time spent with parent paying support

BSA = Basic Child Support Amount taken from the chart

DF = Child-rearing expenditures spent on duplicated fixed expenditures (0.30)

V = Child-rearing expenditures spent on variable expenditures (0.38)

A number of states also use the cross-credit adjustment above the duplicated fixed threshold; but states do not generally use cross-crediting to adjust for visitation below that threshold because applying the cross-credit adjustment to low levels of visitation results in too great an adjustment. The cross-credit formula is: S x [(1-t) x (BSA + DF)] - [)1-S) x (t) x (BSA + DF)].

14 (110 days ÷ 365 days) x (0.38 + 0.30) = 0.301 x 0.68 = 0.2046 = 20% and

(183 days ÷ 365 days) x (0.38 + 0.30) = 0.501 x 0.68 = 0.3406 = 34%.

15 A range to 38% is suggested because that would include the St. Louis County and surrounding area normal schedule, including: alternating weekends and holidays (including extended Christmas periods and alternating spring break), six weeks in the summer and a mid-week overnight each week.

Judge Joseph A. Goeke, III is an Associate Circuit Judge in St. Louis County and has been assigned to family court cases for the last 12 of his 23 years on the bench. He is a member of the Supreme Court Time Standards Monitoring Committee and served on the Child Support Guidelines Review Working Group. Judge Goeke received his J.D. from St. Louis University in 1972.

1998, Judge Joseph A. Goeke, III