Legal Question in Family Law in Florida
In the child support guidelines, it says that a court may deviate from guildelines, if a non-custodial parent fails to excercise his visitation. but to me it seems contradictory by seemingly saying in one part, that failure to excercise is a reason for modification and in another seems to say that it costs less for the custodial parent if the non-custodial parent doesn't excercise his visitation. My question is, am I reading this correctly and if going for mod of support and ex has failed to excercise his visitation, does it hurt or help me in the amount calculated if he has not excercised his visitation. I have copy and pasted the portions of the guidelines that I am referring to below-
"10. For purposes of adjusting any award of child support under this paragraph, "substantial amount of time" means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.
(b)A noncustodial parent's failure to regularly exercise court-ordered or agreed visitation not caused by the custodial parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation. (2003).
A careful analysis of Section 61.30(11), and relevant case law, reveals supportable legal theories to successfully deviate from the minimum presumptive guideline amount. Generally, a trial court�s deviation or adjustment will not be disturbed on appeal if the variation is based upon the statutory factors and a written finding. Each of the eleven (11) statutory adjustment or deviation factors of section 61.30(11)(a) must be analyzed in each and every case. Obviously, all of these factors do not apply in each case. Nevertheless, it is important to look at each factor thoroughly in every case to determine if a justifiable basis exists to deviate from the minimum guideline amount.
If the overnights for the year are less than 40 percent, (�significant amount of time" in Section61.30(11)(a)10 the trial court has the discretion to adjust the child support. Karimi v.Karimi, 867 So.2d 471 (Fla. 5th DCA 2004). On the other hand, if the non-custodial parent has the child for annual overnights of over 40 percent, the trial court is not even mandated to apply the �substantial amount of time" adjustment under the guidelines. The trial judge must consider, in its discretion, the factors in Section61.30(11)(b) before an adjustment can be made. Mitchell v Mitchell, 841 So.2d 564 (Fla. 2nd DCA 2003).
(b) Whenever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows:
1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the noncustodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
2. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the custodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
3. Calculate the percentage of overnight stays the child spends with each parent.
4. Multiply the noncustodial parent's support obligation as calculated in subparagraph 1. by the percentage of the custodial parent's overnight stays with the child as calculated in subparagraph (3).
5. Multiply the custodial parent's support obligation as calculated in subparagraph (2). by the percentage of the noncustodial parent's overnight stays with the child as calculated in subparagraph( 3). "
1 Answer from Attorneys
I think you're confusing two concepts:
a) if a noncustodial parent (NCP) gets more than 40% of the overnights, then you go to page two (the grosse-up method), and child support is reduced,
b) if a NCP doesn't exercise visitation at all, then the judge can deviate more than the standard 5% that a judge can always deviate.
But I have to admit, I don't completely understand your question, so I hope I've answered you properly.
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