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Why am I paying child support in a joint custody arrangement? This question comes up frequently in divorce negotiations, and it’s a good one.

In Texas, the term “joint custody” is often misunderstood by non-lawyers. In a divorce, parentage, or other action regarding children, each parent is given the label “joint managing conservator” except in extreme instances such as child neglect or abuse. The rights and duties of a parent and the possession and access of each parent are what truly determines a “joint custody” arrangement.

In theory, if parents are sharing possession and access equally and are also sharing the rights and duties, shouldn’t all expenses incurred be handled equally as well?

First of all, be aware that in Texas, at least in Harris, Montgomery, and Ft. Bend counties, judges seldom order 50-50 possession. I have seen a judge do that only once in the 31 years I have been practicing law, and when I polled my fellow attorneys I got a similar response. Judges are of the opinion that it is extremely hard to maintain a 50-50 possession after a divorce or final court order. Parents move, remarry, good intentions evaporate, and most judges are of the opinion that if they order 50-50, a parent will be facing litigation again within a couple of years. Judges also are extremely reluctant to enter a “no child support” order. If parents enter into a mediated settlement agreement for 50-50 possession and/or no child support, however, a judge’s hands are tied as that agreement is binding on both the parents and the judge.

For those parents considering why they would agree to pay child support in a 50-50 arrangement or agree to accept a “no child support” order, the answer is, that in the real world, two divorcing parties are rarely equal. They have different jobs, different work hours, different work histories, education and skills. Also, one will often stay in the marital home, requiring the other to find new housing. And most importantly, one will likely earn more than the other (often considerably more) over the short and long term.

So the determination that child support is warranted should be based not only on possession and access, but on the resources and potential earning power of each party. And let’s face it, it is pretty unlikely that even in a 50/50 custody agreement, children will actually split their time equally between parents. It’s not possible, but more importantly, it’s not practical either. The majority of kids impacted by custody agreements are still in school, and school districts are not easily circumvented. So chances are, school-age children will need to live in the district they attend. This guarantees a certain amount of inequality in residence, and also in expenses. The parent handling the school issues will undoubtably pay numerous fees, buy supplies and subscriptions and be responsible for the day to day existence of the kids. So lunches, snacks, gas, etc. will usually wind up falling primarily on one parent.

Also, kids inevitably incur surprise expenses, some of them quite large. While a few of these (orthodontia, etc) are somewhat predictable and can be covered in the settlement agreement, others are surprises, or the amounts tend to vary widely. For the rare hypothetical couple with joint custody and no child support, they might agree to split those expenses down the middle. For the parent with part time job, splitting the $350 lab fee or $500 cost for a band trip might be a hardship. This is where child support comes in.

In divorce cases, courts are looking to guarantee (as much as possible) the “best interest” of the children. This is why the concept of “two halves make a whole” is so important. By assuring that the appropriate resources are available in the appropriate amounts, kids of divorced parents can grow up with many of the same experiences as their peers in intact family units. This is also why divorce judgments are not (except in egregious cases) punitive – it usually does not serve the long term interests of the child if one parent is bankrupted by a divorce judgment.

If you have any questions on child support or other family law matters, please contact the Essex Law Firm for an appointment.