If They Can Do Parenting Plans, They Can Do Child Support Plans

  1. Introduction

    When parents
    divorce or separate, they encounter the difficult task of determining child support. 
    Since the late 80’s, mediators have been asking divorcing couples to create
    parenting plans instead of fighting for custody.  Similar logic supports the
    same approach for child support.  Such a shift in thinking is necessary today;
    the rigid application of child support guidelines can create unfair results
    when applied to individual divorce situations.  Many states have implemented
    deviations from the norm to  address the inequities resulting from the use of
    these guidelines, and when these changes are evaluated as a whole they reveal that
    an alternate approach is necessary.[1] This article asserts that the
    implementation of these deviations is necessary because current child support
    guidelines are based on three flawed assumptions.  These deviations attempt to
    acknowledge and correct these flawed assumptions, and in turn create a more
    fair an equitable child support system.  Just as parenting plans have evolved
    to allow families to co-parent after divorce, states should begin to implement
    Child Support Plan legislation so that divorcing parents can eliminate the need
    to rely on statutory deviations created by the inherent unfairness in current
    child support guidelines.

    This article
    examines the current approach to creating and enforcing child support guidelines
    and suggests a new way to achieve cooperation between divorcing and
    never-married parents through the use of a “Children’s Checkbook ” [2] to manage the shared costs of raising
    the children.  The three major flawed assumptions in existing child support
    guidelines are that the formulas assume that child support (1) must be
    exchanged between the parents, (2) must be tied to the amount of time a child
    spends with each of parent, without reference to how much each parent actually
    pays for the child’s expenses, and (3) must be a single mathematical formula.[3]  Each state has attempted to address
    these flaws by setting forth situations under which courts may either deviate
    from a rigid application of the guidelines or by adding on categories of shared
    expenses.[4]

    The fact that
    most states have created, rely on, and indeed are gradually expandingdeviation
    procedures from statutory child support guidelines marks the beginning of a
    migration away from rigid formulas towards a greater use of itemizing and
    sharing certain categories of expenses.[5]  For this expanding list of add-ons, the
    parents must learn how to cooperate when managing how they will pay these
    expenses jointly.  Currently, child support guidelines seem to view shared
    categories of expenses as only deviations or additions to whatever existing
    formula is applied.  Instead, these deviations should be viewed as the core of
    a solution, an evolutionary change in child support law moving toward a greater
    emphasis on cooperation, similar to changes in custody law over the past ten to
    fifteen years.[6]

    More than twenty
    years of mediation experience demonstrates that parents can more easily and
    more cooperatively share the costs of raising children in two separate homes by
    abandoning mathematical child support formulas and re-framing the child support
    question from “how much money” the state requires them to pay or receive to
    “how they will share the costs” of raising their children in two homes in the
    future.[7]  The change is a logical extension of
    the movement in many states toward the adoption of parenting plan legislation,
    where the basic goal is focusing more on generating future cooperation between
    the parents.[8]  Asking a different question, together
    with using a joint Children’s Checkbook  to manage the various expenditures
    made on behalf of the children, this new approach creates a process that will
    provide both cooperative and high-conflict couples with more tools to reach
    consensus.[9]  This approach could dramatically change
    the way parents resolve the question of child support, just as re-framing the
    child custody question dramatically changed the focus from good parent/bad
    parent to building parenting plans through the use of mediation – an approach
    which has resulted in greater flexibility of results and increased perceptions
    of fairness.[10]

    Finally, the
    article recommends that state legislatures recognizing the near impossibility
    of creating a universally fair child support formula might be well-advised to
    consider taking a significant step and adopt a child support law implementing
    Child Support Plans rather than taking another ten to fifteen years of small
    steps to come to the same conclusion.

  2. Existing State
    Child Support Guidelines and Flawed Assumptions


    1. Child
      Support Guidelines Today

      There are many
      complaints about the child support guidelines, most of which seem to be from
      the public.  A Google search of “Child Support Guidelines Criticisms” reveals
      many web sites that are vehement in their attacks on the guidelines system.[11]  Current child support laws are perceived
      as unfair,[12] lacking in practicality and ease of
      calculation[13] and most importantly, failing in
      compliance rates.[14]  The inability of existing child support
      statutes to properly serve divorcing and never-married couples is growing
      increasingly acute, as more parents follow equal or near-equal time sharing
      arrangements for exchanging their children. This trend has created more complex
      spending patterns on behalf of the children.[15]  Because guideline child support methods
      are seen as rigid and often unfair in their application, there have been many
      attempts to declare them unconstitutional; all have been unsuccessful.[16]

      There are three
      basic child support guideline models being used in the United States today.  The Income Shares Model used by thirty-three states.[17]  The second guideline model, used by
      fifteen states, is the Percentage of Obligor’s Income (including two states
      which use a hybrid that is similar) model.[18]  Finally, the method usedused in just
      three states, Montana, Delaware and Hawaii, is the Melson formula.[19]

      1. Income
        Shares Model

        The Income Shares
        model is now the most commonly used.[20] It allocates an amount of support for
        the child using a percentage formula based on the parents’ pooled or combined
        income.[21]  In Minnesota after January 1, 2007, the
        determined child support amount is apportioned between the parents based upon
        their respective Parental Income for Calculating Support (PICS).[22] The PICS calculates support by pooling
        the income of both parents and then determining a base amount of child support
        needed by the child.  This amount is determined by applying a guideline table,
        which is an amount of basic child support that uses the United States
        Department of Agriculture’s Costs of Raising Children Studies, with marginal
        housing costs applied.[23]

      2. Percentage
        of Obligor Model

        The Percentage of
        Obligor Model is the most simple and easiest to calculate of all the guideline
        models.  This formula is used in nine states at
        the time of this writing, including Minnesota from 1983 until January 1, 2007.[24]  This model asks three questions: (1)
        how many children are there, (2) what is the obligor’s income, and (3) who is
        the less-time parent?  The less-time parent, or the absent parent, as defined
        by the Family Support Act of 1988,[25] is typically the parent who lost the
        custody battle, or who by the parent’s agreement will physically have the
        children for less time than the other and must send money over to the
        greater-time parent.

      3. Melson Model

        Under the Melson
        Formula – the most complicated guideline model – the child support formula is
        applied to the income of the parents after first deducting the parents’ basic
        living expenses from each of their respective incomes.[26]  Although it is the most complex of the
        three models, it builds on the concept of the income shares model by also
        trying to factor in the number of children, child care, and extraordinary
        medical expenses instead of seeing child care and medical expenses as add-ons
        to the basic formula amount.[27]

      4. All
        States Require that One Parent Pays the Other Parent

        Every states’
        formulas require one parent to be the obligor, who is defined as the absent
        parent in Congress’ originating legislation, and the other parent is seen as
        the recipient of money from the absent or custodial parent.[28]  Through an award of child support to
        the parent with greater time or lower income, there is a rebuttable presumption
        that such formulas are fair.[29]  In order to deviate from the formula,
        the court must make clear and specific findings stating the reasons for such
        deviations.[30]  Only in certain cases of equal time
        sharing and equal incomes have the formulas permitted no exchange of child
        support on the theory that each parent will simply pay for the cost items of
        the child or children when needed, and the statutes and case law are silent on
        the issue of who should pay for what.[31]

      5. Family
        Support Act of 1988

        A common
        conclusion is that child support implies an exchange of money.  This conclusion
        is supported by a reading of the entire Family Support Act of 1988,[32] the original impetus for all state guidelines,
        which required all states to adopt child support guidelines that at a minimum
        satisfy the following:

        1. Take into consideration all
          earnings and income of the noncustodial”
          parent;


        2. Be
          based on specific descriptive and numeric criteria and result in

          the
          computation of the support obligation; and


        3. Provide for the child(ren)’s health care needs, through health

          coverage or other means.[33]

        Notably, the
        beginning words speak of the “non-custodial” parent.[34] Section 101 of the Family Support Act
        authorizing support withholding speaks of the “absent” parent.  For those
        states that have adopted some form of Parenting Plan legislation, the concept
        of an “absent” parent runs contrary to the intent and expectations of such
        legislation.[35]  Parenting plan legislation moves away
        from the concept of absent parent, recognizing that both parents continue to
        parent in divorce.  Indeed, if we have learned anything from our experience of
        moving from custody to parenting plans, we might want to recognize our new
        found enlightenment and move from the  “absent parent concept” to the concept
        of “two involved parents” sharing the costs of raising their minor children.

        The Family
        Support Act of 1988 also required that the guidelines formulas be based upon
        specific descriptive and numeric data.[36]  This requirement has resulted in an
        attempt to base a formula on economic data, such as the costs of raising
        children studies by the Department of Agriculture.[37]  Some formulas are tied to the Bureau of
        Labor Statistics Consumer Expenditure Studies (CES).[38] One formula, Minnesota’s Percentage of
        Obligor’s income model, was created before the adoption of the Family Support
        Act by a retrospective compilation analysis of one jurisdiction’s averaging a
        group of judges’ rulings on child support over a six month period examining low
        income cases.[39]  The resulting averages fell into a
        pattern of ordering the non-custodial parent to pay 25% of net income for one
        child, 30% of net income for two and so on up to 49% of net income for five or
        more children.[40]


    2. Flawed
      Assumptions


      Regardless of
      which guidelines formula is used,  as noted above, three flawed assumptions
      emerge.  These three arethat child support (1) must be exchanged
      between the parents, (2) must be tied to time with each parent and not tied to
      who pays which children’s costs, and (3) must be a single mathematical formula.[41]  One could argue that a main contributing
      factor to all three flaws is continued reliance on the “absent parent” concept. 
      Each flaw also results in negative consequences that make it difficult to
      establish fair methods of sharing the costs of raising children.

      1. Child
        Support Must Be Exchanged Between Two Parents.

        In all three
        existing statutory child support models, one parent always pays money to the
        other, and the guidelines formula used to establish how much money should be
        paid is tied directly to who wins the custody battle, or alternatively, who is
        the primary parent or residential parent.  In the opinion of this author, this
        notion that children are provided for completely by one parent who receives
        money from an absent parent is flawed because it does not recognize both the
        monetary and non-monetary contributions of the non-custodial absent parent.

        1. Trading
          Days for Dollars Sets up the Custody
          Battle

          When only one
          person is allowed to send money to the other, and especially when the amount of
          money sent is tied to who is more in charge, conflict inevitably arises over
          who gets to be in charge.  This results either in a custody battle or, in its
          milder form, this assumption becomes the underlying fuel for a phenomena that
          has been called “trading days for dollars,”[42] whereby couples fight over the exchange
          schedule because increased or decreased time with a child affects the amount of
          money the obligor will send.  Sending money from one parent to the other, with
          no participation in the decisions about how it will be spent also creates
          mistrust, resulting in some states enacting legislation requiring the receiver
          of child support payments to account for how money is spent.[43]

          This problem of
          “trading days for dollars” and the fight to “win” the custody battel will
          continue to remain difficult when child support amounts are always tied to
          custody or who is the primary parent.  This obligor-obligee transfer payment
          system is reminiscent of the military approach where a “supply sergeant” is
          designated as the one person who manages all of the children’s material needs
          and must collect money from the “absent parent” as defined by the originating
          federal legislation.[44] Non-custodial parents rightly ask, “what
          about the money I spend on my children when they are with me, even though I
          send money to the other parent?”  “And what if I start to spend more time with
          my children, don’t I get a break on my child support?’ This question was asked
          by Mr. Valento and the Minnesota Court of Appeals answered yes.[45]  Yet, the fight for time with the
          children still creates conflict, because most state child support guidelines,
          including Minnesota’s income shares model, call for a reduction in child
          support for the obligor when the obligor’s time with the children is increased
          past a certain point.[46]  In Minnesota, under the newly adopted
          income shares formula, there is a “Parenting Expense Adjustment” whereby any
          parent who has between 10% and 45% of the time with the children is allowed a
          12% reduction in child support.[47] This somewhat wide range was
          specifically designed to unhook the support from the schedule and encourage the
          obligee parent to be more willing to allow the obligor parent to have more time
          with the children.[48] What mediator or judge hasn’t spent time
          listening to conflicted parents fight to the bitter end over whether there will
          be equal time-sharing or primary custody to one, or for that matter, whether
          there are going to be 12 overnights a month to Dad or 10 overnights per month
          to Dad when the child support amount statutorily awarded under the formula
          hangs on this determination?[49] 

        2. Supply
          Sergeant Concept (Absent Parent Model Assumes Inability to Cooperate)

          One possible
          reason Family Law has relied exclusively on the obligor-obligee transfer of
          payment model is because it is mandated by the Family Support Act,[50] and underlying the adoption of the
          Family Support Act was the need to collect money from fathers who were content
          to have the state support their children.[51]  The concept of an “absent” parent
          certainly does not assume cooperation between mom and dad.  Indeed, traditional
          historical definitions of child support have not typically included both
          parents cooperating and discussing shared contributions towards their
          children’s need.  Family law
          has traditionally analyzed the child support problem by first seeking to
          determine the proper level of child support that one parent pays to the other
          parent rather than asking about how support is shared and who should pay what
          for what items.  It is difficult to find any commentators who question this
          basic theme of requiring a payment of child support from the parent who “loses”
          custody (or has less time with the children) to the parent who “wins” custody
          (or has more time with the children).  Even Black’s Law Dictionary defines
          child support as “the money legally owed by one parent to the other for
          expenses incurred for children of the marriage.”[52]


          Perhaps because the traditional custody approach assumed that only one parent
          can be in charge of raising the children, the custodial-non-custodial hierarchy
          was created to eliminate the need to cooperate when one parent is vested with
          the most authority by being put in charge as the custodial parent receiving
          money for child support.  It is easy to see how the absent parent paying money
          to the “supply sergeant model” occurred.  There seems to be a common sense
          notion among most lawyers and other professionals trained in using the
          adversarial system, that if parents cannot cooperate enough to stay married,
          then they certainly cannot raise their children together after divorce. 
          Therefore, it is best to put one parent in charge, including paying for the
          costs of the children.  Reliance on the rigid notion that only one parent pays
          for the day-to-day expenditures of the children reinforces the idea that there
          is always a custodial parent who has more power and control over the children’s
          lives, and that there is always a visiting, non-custodial, secondary parent
          whose job is to send money over to help out.  Such an approach fails to
          recognize that parents will continue to be parents after the divorce.  They
          might be able to terminate their marriage relationship, but they will never be
          able to terminate their parenting relationship, and this is the principle that
          all parenting plan legislation is based upon.[53]

          This supply
          sergeant approach also fails to recognize and give credit to the contributions made
          by each parent, particularly the non-custodial visiting parent who might
          occasionally want to buy a pair of shoes or pay for a soccer camp registration.[54]  Some states have even given a “visitor’s
          credit” to the non-custodial parent who exercises visitation in an effort to
          solve this flaw.[55]  The notion that only one person may be
          trusted to pay for a child’s expenses is inflexible and can create competition
          for the child’s allegiance through the purchase of special items as a result of
          non-communication between parents about children’s expenses.

          To be effective,
          parents must learn how to cooperate around parenting their children and the
          Minnesota Legislature recognized the need to involve both parents in
          decision-making when adopting parenting plan legislation that was designed to
          encourage both parents to cooperate around building the ground rules of a new
          parenting plan rather than fighting over who was in charge.[56] Moreover, in what appears to be a
          precursor to creating a child support plan, in connection with the passage of
          parenting plan legislation, the Minnesota Legislature included a provision for
          allocating children’s expenses between the parents. Subd. 8 of the Minnesota
          Parenting plan legislation states (a): “Parents creating a Parenting Plan are
          subject to the requirements of the child support guidelines under Chapter 518 A
          and (b): Parents may include in the parenting plan an allocation of expenses
          for the child. The allocation is an enforceable contract between the parents.[57]

          Just as other
          states have adopted some form of Parenting Plan legislation, isn’t it now
          possible that we will begin to see other states adopt new child support
          statutes that encourage the use of mediation and individual custom-designed
          child support arrangements based on similar reasoning that sharing children’s
          costs may include methods other than just exchanging money from the custodial
          parent to the non-custodial parent?  Perhaps the exchange of money is just too
          ingrained in our system to challenge its premises.  Indeed, most mediators,
          some judges, and some practicing attorneys will attest to the fact that
          frequently, the expectation that parents cannot cooperate is a self-fulfilling
          prophecy.  Moreover, we should learn from the success of mediation coupled with
          Parenting Plan legislation that gives people a process of learning how to
          cooperate in the new relationship of parenting which replaces the relationship
          of marriage.  The research results of one study that compared litigating
          custody with building a parenting plan are astounding because parents were randomly
          assigned to either a mediating group or a litigating group.[58]  A follow-up with mediating parents up
          to twelve years later showed significantly more contact between the “absent”
          parent and the children when compared with the litigating parents.[59]  Perhaps it is time to ask the question,
          are they really that uncooperative, or is it something we are doing in our
          adversarial system that actually creates conflict?


      2. Child
        Support Tied to Time With Each Parent

        “Time tells me
        little about who arranges for the children’s material needs.”[60]

        The second flawed
        assumption is that child support must be tied to time with each parent, and
        that specific expenditures made on behalf of the children by each parent are
        not important and will not be part of any formula.  I submit that children’s
        expenses should be tied to who pays for the child’s costs because this is where
        the rubber hits the road.  It
        is incorrect to assume that the parent who spends more time with the children
        will spend more money on them than the parent with less time. It is also
        incorrect to assume that parents will spend money equally for their children
        even if both parents have equal income and equal time with the children.  The
        only categories of expenses that are tied to time are food and utilities.  That
        is, the parent with less time will feed the children less and thus, will likely
        spend less money on the children than the more-time parent, and the parent with
        more time will likely spend more on the light bill and hot showers that
        increase heat and electricity bills.  However, other than these two categories
        of food and housing , all other categories of costs related to the normal
        raising of children can be paid by either parent, regardless of the time that he
        or she spends with the children.

        1. Minnesota’s
          Approach

          Minnesota’s new Income Shares formula still ties
          child support to the amount of time the parent spends with the child insofar as
          a different calculator is used when the child is with each parent more than 45%
          of time or with one parent less than 10% of time. Thus, the 45% threshold may
          produce resistance to requests for nearly equal time.  After January 1, 2007 in
          Minnesota, the amount of time a parent spends with a child must reach a
          forty-five percent threshold before any downward adjustment is made.[61]  This means that when a parent has
          forty-five percent or more of the time with the children, that parent’s child
          support role changes from that of visitor; the parent is recognized as a
          contributor to the children’s costs and child support is further reduced.[62]  This same concept was recognized in a
          judicial modification of Minnesota’s previous Percentage of Obligor formula,
          through the two cases  of Hortis v. Hortis[63] and Valento v. Valento.[64]  These two cases laid down the same
          principle of reducing child support for the obligor based upon the consideration
          of added time.  However, it did not rigidly set 45% as the threshold.  The
          concept of these two cases called for the obligor to pay less child support until
          a 50-50 equal timesharing and equal incomes situation was reached, and it was
          presumed at that point that each parent would incur the same costs and would
          have the same ability to pay for these costs when the children were with each
          parent.[65]

        2. Canada’s
          Approach

          Canada’s
          child support model is similar to Minnesota’s.  Canada, however, uses a
          forty-percent threshold that reduces the child support when a parent exceeds
          forty percent of the time with children when they are in a secondary parenting
          role.[66]  Carol Rogerson, writing in the Canadian
          Journal of FamilyLaw
          succinctly outlines the fairness question when
          a formula attempts to take into account the element of time.


          The question
          of whether to allow for an adjustment to guideline amounts in cases of increased
          access and shared custody, and if so, how to structure such an adjustment,
          raises complex and controversial policy choices. Pushing in favour of some
          adjustment is a concern for fair and consistent treatment of payors who incur
          increased expenses during the time they spend with the child. There are two
          dimensions to the fairness claim. The first is fairness between the payor and
          the support recipient, who is arguably being relieved of some costs assumed by
          the payor. The second is fair and consistent treatment of the payor as compared
          to payors at the same income level who may not be spending any money directly
          on their children apart from the payment of child support.  On the other hand,
          allowing such an adjustment raises many concerns. Increased time spent with a
          child does not necessarily entail increased spending on the child.[67]


          One
          Canadian judge, struggling with the 40% line in the sand,  ruefully observed
          that using a formula tied to time tells him nothing about who is buying what
          for the children:


          This crass
          focus concerning the number of hours spent told me nothing whatsoever about who
          bears the expenses of parenting. The 40% delineation offers no clue as to how
          expenses of housing, feeding, clothing and other such expenses usually subsumed
          in the regular expenses of children that are addressed by the table amounts in
          the Guidelines, are paid. Many access parents who have the children somewhat
          less than 40% of their hours still bear the expense of providing child suitable
          accommodation and must nevertheless pay the table amount. Time tells me little
          about who arranges for the children’s material needs.[68]


          Justice Eperhard,
          writing in the above case put his finger on another core piece of the puzzle
          that has always been ignored in the zeal to create the perfect formula.  It is
          simply the notion that who pays for what is more important than time, than who
          has custody, than who is the primary parent, than who is the residential
          parent, or whether one has 38% of the overnights each month or whether one has
          42% of the overnights each month.

        3. Most
          States have Deviations or Reductions for Time

          Most states allow
          an adjustment or deviation from the guidelines for greater time spent with the
          children.[69]  The assumption is that by having the
          children more of the time, there will necessarily be higher costs.  Minnesota does not require documentation of greater expenses, just that the time be more
          than 45% for the reduction to occur.  To find any discussion of who pays what,
          we must look to the unusual cases for guidance.  Some courts, when reviewing
          high income cases have found it necessary to look at actual expenditures rather
          than simply time. [70]

          One commentator,
          writing on cases of high income divorce couples, where the courts in several
          states have found it necessary to require deviations, observes a principle that
          is at the core of the Children’s Checkbook  Method:


          A support
          award that is based upon the financial means of the parent rather than the
          demonstrated needs of the child may also deprive the payor parent of a role in
          deciding the child’s lifestyle.  As the court indicated in Harmon v. Harmon an
          award that was not based on express findings of the child’s actual needs would
          trespass upon the right of parents to make lifestyle choices for their children. 
          As that court noted “although entitled to support in accordance with the
          pre-separation standard, a child is not a partner in the marital relationship
          entitled to a ‘piece of the action.’” Indeed, it has been suggested that
          determinations as to the child’s appropriate lifestyle are not purely
          mathematical determinations to be arrived at by application of child support
          guidelines but more properly issues of parental decision making, particularly
          where parents have joint legal custody and therefore should have equal input
          into decisions as to the manner in which the child is reared.
            Such a
          consideration may carry significant weight in the event that the parties’
          spending habits during the marriage reflected expenditure patterns that were
          modest in comparison with the available income.  However, a concern that the
          child not be “spoiled” by lavish spending on his or her behalf is less likely
          to be credible if the parent’s frugality is newly acquired. [71]


          As will be
          discussed later, determinations as to the child’s appropriate lifestyle should
          be made by the parents, not by a mathematical formula that attempts to fit
          everyone into the same size shoe. Even in cases where the parents do not have
          equal timesharing, it seems appropriate for the parents to make decisions about
          how and how much to support their children.  Indeed, in those instances where
          the parents make equal incomes and have equal time sharing, the state of Minnesota says they can support their children as they wish, without any exchange of child
          support monies between them[72].



      3. Child
        Support Must Be A Single Mathematical Formula

        The third and
        final flawed assumption underlying the child support guidelines is that they
        must employ a single mathematical formula that creates fairness.  When this
        notion exists, there will be unfairness because it is not possible to create
        a single child support formula that will work for every one of the 1.2 million
        couples who divorce in the United States every year.
        [73]Indeed, when one observes that there are four variables
        existing in all situations that create a need to address child support, then
        logic requires asking “how can one formula possibly create fairness among the
        variables?” The four variables are: 1) mother and father have differing
        incomes; 2) mother and father spend differing amounts of money on behalf of the
        children; 3) mother and father spend differing amounts of time with the
        children; and 4) over time, the costs of the children will change with the
        ending of day care, the starting of extracurricular activities, the arrival of
        driver’s education requiring increased car insurance, etc.

        In any child
        support formula, income is seen as the driving force.[74]  Indeed, all guidelines formulas in the
        fifty states and Canada start with some income base as the coefficient to plug
        into the formula tables.[75]  Income figures seem to be the
        philosophical underpinning of formulas based upon trying to ensure that the
        children have a lifestyle similar to what they had before the divorce.[76]  Each state was permitted to devise its
        own formulas and many looked to other states that used the number of children
        and who has primary custody as the other two factors in establishing tables and
        formulas setting a proper level of child support.  However, a quick analysis of
        the guidelines statutes shows a wide variation between the states in the
        formulas.[77]  One commentator even argues that the
        guidelines have become the province of the economic consultants.[78]  Notably absent in the guidelines of
        every state is the factor of expenses incurred on behalf of the children. 
        These are not part of any state’s formula, but are dealt with in the deviations
        and add-ons to the basic guidelines amount.[79]

        However, one must
        ask that if the guidelines do have a safety valve in their recognition of
        categories of deviations, add-ons and other variables that permit deviation,
        then why not simply acknowledge that everyone is an individual case and let the
        couple create their own compete set of deviations, together with a method of
        sharing the total costs of all expenditures made on behalf of the children, 
        regardless of whether their result is higher or lower than the guidelines in
        their own particular jurisdiction?  This question will certainly be met with
        raised eyebrows and urgent gasps in many quarters, (particularly those who
        believe that certain types of people are prone to forsake their obligations
        towards their children) but do we not ask couples to create their own laws of
        fairness when there is equal time sharing and equal incomes?  Do we also have
        an answer for them when they ask, why are the child support guidelines formulas
        so different when moving across state borders?  And, are we really being fair
        when we allow high income parents, and those who have chosen equal time sharing
        and have equal incomes, to come up with their own method of sharing the costs
        of raising the minor children?  Why not extend such expectations of rational
        behavior to all parents who must determine a method to share the costs of
        raising their minor children in two homes instead of one?



    3. National
      Child Support Deviations – Signs of an Evolutionary Change in Child Support Law

      In fact, we could
      be at the point where couples are expected to build Child Support Plans, just
      as they are expected to build a parenting plan.  Each state’s procedures for
      deviating from the guidelines and continued reliance on and gradual expansion
      of these deviations can be seen as a beginning migration away from rigid
      formulas towards greater use of requiring couples to itemize and share certain
      categories of expenses that are either paid jointly by the parents or paid by
      one of the parents as a factor to consider in adjusting the amount of support
      that may be exchanged. [80]  Although child support statutes seem to
      see shared categories of expenses as only deviations from or additions to
      whatever formula is being applied, I suggest that when shared expenses are seen
      as the core of a solution, the deviation principles are actually the beginning
      step in building a comprehensive Child Support Plan.

      Indeed, a compelling
      argument can be made that all fifty states teeter on the verge of now being
      able to adopt Child Support Plan legislation.  Minnesota and other states have
      adopted the use of parenting plans rather than custody battles, rejecting the
      notion that it is necessary to determine who is a better or worse parent which
      then  provides  one parent a higher level of ownership and control of the
      children.[81]  Under the parenting plan approach, the
      battle over better or worse parent is discarded and couples self-design
      agreements about schedules of exchanges, ground rules for conduct, methods of
      communicating and other agreements about the shared parenting of the minor
      children.  Similarly, a Child Support Plan provides a workable model that
      allows divorcing parents to address the realistic financial needs of their
      children, and more importantly, address differences in expenditure levels for
      the children tied to each family’s history and desires.

  3. Sharing the
    Cost of Children Using the Children’s Checkbook  Allows for Creating a Child
    Support Plan




    1. Need
      to Ask a Different Question that Creates Cooperation

      Mediators have
      long known that there is great power in asking a different question.  The form
      of the question asked influences how the issue or dispute is defined. 
      Professor Morton Deutsch observes that “[c]ontrolling the importance of what is
      perceived to be at stake in a conflict may be one of the most effective ways of
      preventing the conflict from taking a destructive course.”[82]  Perhaps the reason the Children’s
      Checkbook  has been successful with a variety of couples at Erickson Mediation
      Institute (EMI) is the fact that EMI asks a completely different question than
      the guidelines.  While the guidelines formulas all ask a series of questions
      about who is the absent or less time parent, what is that parent’s or both
      parent’s incomes, and how many children are there, the most important piece of
      the puzzle is left unasked by the guidelines formulas.  This missing piece is
      most importantly, what have you been spending on your children in the past and
      what can you afford to spend on them in the future, given the fact that you now
      must incur the cost of a second household?  We must ask the parents how they
      will share the costs of raising their children in the future and in order to
      answer this question, we must know who will be paying for what items.  Building
      upon Deutsch’s principles, it is possible to take the typical child support
      question and re-frame it from “How much do I have to pay in child support?” to
      “How can we share the costs of raising our children in the future so that it
      will be fair to both of us?”  Thus, a mutual journey begins. In the task of
      answering the question, parents will learn new methods of cooperation. They
      will also have failures, but they will not view the task as a contest, where
      one side wins and the other side looses.  They will rather begin to view the
      journey as a problem that must be solved.  This new approach of creating a
      Child Support Plan welcomes and accounts for the inherent complexities that
      divorced and never-married parents face: they live in two separate homes, may
      have differing incomes, spend differing amounts of money on their children, and
      care for them differing amounts of time.  Moreover, building a Child Support
      Plan acknowledges the need for and allows flexibility for parents to deal with
      the changes in children’s expenses, for example increased extracurricular or
      sporting activities and expenses associated with becoming a teenager.

      For too long, we
      have assumed that the child support question could be simply answered by
      looking at incomes and time variants and creating a formula.  As long ago as
      1989, some courts recognized that the wrong questions were being asked.[83]  In an Idaho case, Justice Johnson’s Stockwell v. Stockwell concurring opinion showed that he understood the implications
      of asking the correct questions by recognizing that the focus and questions
      should be centered on the parent’s future decision making and not on ownership
      rights or time with the child.[84]  More recently, the Oregon Statewide
      Family Law Advisory Subcommittee reached a similar conclusion by observing that
      the need to frame family law questions in a future focus requires a paradigm
      shift in thinking.[85]


      Disputes in
      Family law are poly-centric and do not always fit into neat patterns. The
      Futures Subcommittee recognized the concept [of parenting plans] represents a
      paradigm shift in family law. “Plan is a very different word than “award”: plan
      is the future, award is the past; plan is collaborative, award is competitive;
      plan implies problem-solving, award implies a contest. The help attorneys and
      courts need to provide for families is to give them the knowledge and the
      skills to develop their own plans, not to provide “cookie cutter” plans.[86]


      To understand why
      we keep asking the wrong question, what I submit is that it is helpful to
      realize that how child support is paid is a factor in limiting our ability to
      make this necessary paradigm shift in thinking.  In order to make this shift,
      we must acknowledge that there are really three methods for managing child
      support, not just one.  First, child support can be paid from the absent parent
      to the other, but, second, it can also be paid by buying items directly for the
      children, or, thirdly, it can be paid by both parents to a checkbook that is
      then used to buy items or to pay for expenses for the children.

      First, as
      discussed above, the guidelines support model always puts one parent in charge
      of buying items for the children.[87]  This method assumes that because
      parents cannot live together as husband and wife, they certainly cannot raise
      their children together and therefore must put one parent in charge of the
      children and their care, because after all, one of them is the “absent” or
      perhaps “more absent” parent.[88]  This method appears simple; it is the
      least complicated and supposedly the least conflict producing because the
      parents have no interaction other than money exchanging hands.  Because the
      guidelines say nothing about what items the child support should cover, a
      complex system of deviations and add-ons has evolved.[89]  Moreover, when nothing is said about
      what the child support covers, the following may likely occur:


      Son, I can’t
      possibly buy you that new 12 speed mountain bike you have been asking for.
      You’ll have to speak with your father, he earns three times as much as I do.” 
      (Next time son is with dad)  “Son, what is your mother doing with all of the
      money I send her, she gets $1,321 a month from me in child support.  She should
      use it on you.


      The second method
      of managing child support is for each parent to pay for items directly. 
      Indeed, there is beginning to be statutory and case law recognition of some
      parts of the Children’s Checkbook  principle.[90]  Parents can pay for items directly, or
      from a checkbook and not necessarily always be required to have the obligor
      send a formulaic amount of money over to the obligee who becomes the supply
      sergeant because we cannot trust them to cooperate. This method of direct
      payment of children’s expenses is beginning to be more frequently used by those
      couples who engage in approximately equal time sharing.[91]  It is also the principle announced in
      the Minnesota case of Valento v. Valento[92] whereby the court declared that the
      higher income parent should send money to the other to help equalize the
      disparity in incomes.  Yet the underlying assumption of the Valento case
      is that both parents will buy an approximately equal amount of food, clothing
      and other items used by the children because the children are with each parent
      equally. This is also the principle of the new Minnesota Income Shares Child
      Support Model effective January 1, 2007 in Minnesota.  Under the new statute,
      there is no child support exchanged when there is equal income and equal time-sharing
      of the children.[93]  However, in order for couples to be
      sure that they are each purchasing about equal amounts of child related items,
      it is necessary to have some system of record keeping.  One attorney familiar
      with couples using the checkbook reports that those who do not use a checkbook
      seem to have more conflict than those couples who use a joint checkbook for
      paying and managing shared expenses.[94]

      This second form
      of child support, recognized not only in Minnesota but in other states, is to
      share certain children’s expenses by paying these costs directly and then to
      adjust, reimburse, or compensate the other for fronting the costs.[95]  In the broad scheme of child support formulas,
      sharing payment for these costs such as day care expenses or shared medical
      support is not the central part of the core formula computation and paying for
      these items directly has been seen as add-ons or a deviations.  With the use of
      a children’s checking account to create a Child Support Plan, all items that
      are deemed to be shared expenses are paid directly from the checkbook and
      either one or both parents uses the checkbook.  Therefore, a third method is to
      pay child support to a checking account and the checkbook is the mechanism for
      sharing the children’s costs, much as several co-owners of a duplex may use one
      checkbook to track income and expenses of the operation.

    2. Child
      Support Plan & the Children’s Checkbook

      Although there
      are a number of forms that a Child Support Plan could take, this article
      recommends the use of a Children’s Checkbook  as a tested and successful method
      of developing a Child Support Plan.  Of all the methods of managing child
      support discussed here, a Child Support Plan and sharing the expenses through
      the use of a joint checkbook is the only method that resolves the flawed
      assumptions discussed above.  Mediators have been using Child Support plans for
      many years.  For two decades, parents mediating their divorces at EMI have used
      the Children’s Checkbook Method to calculate and share child support.

      The idea for the
      Children’s Checkbook  was originated in 1981 as a suggestion by EMI  to parents
      adopting 50-50 time sharing.  The Children’s Checkbook calls for each parent to
      contribute monthly amounts into a joint account that is then used by each
      parent to pay for all agreed upon, or court ordered, expenses, incurred on
      behalf of the children.  It establishes support levels based on the actual
      needs of each family, rather than a one-size-fits-all approach.

      Because the
      amounts placed into the joint Children’s Checkbook  are tied to the unique and
      individual budget needs of the children, it allows the children to continue
      their standard of living as was established during the ongoing marriage.[96]  By unhooking the calculation of child
      support from the custody and/or visitation determination, the checkbook
      arrangement also solves the problem of trading days for dollars.[97]  By using a proportionate contribution most
      often based upon the gross incomes of the parents, the Children’s Checkbook
      Method can also embrace another principle well established in the law which is
      that child support should be based upon ability to pay[98] and in those states with an income
      shares model, upon the abilities of both parents to pay[99].  Finally, and most importantly, the checkbook
      method enhances cooperation by scheduling periodic reviews of the budget,
      obviating the need for constant motions to amend.

      On balance, this
      approach does a better job of creating fairness, allows for a simplified method
      of modification, and creates a written record for the parties of their shared
      expenses that is automatically tracked through bank statements, all of which
      results in better compliance and more cooperation, goals that have previously
      eluded legislators, jurists and commentators of the current system.  Because
      this joint account is shared and managed by both parents, it provides for the
      opportunity to not only create fairness, but to also more readily involve both
      parents in providing for the children’s needs.[100]


























































































































































































      Children’s Monthly Budget

      Expense Item
      (Estimated Monthly Cost)

      SeparatelyPaid by Mom  Separately

      Shared using Joint Checkbook

      SeparatelyPaid by Dad Separately

      Food
      and Groceries

      100

       

      100 

      Lunches
      at School

       

      78

       

      Eating
      Out

      50

       

      50

      Clothing

       

      100

       

      Medical
      Insurance

       

      (Through Mom) 121

       

      Uncovered
      Medical Expenses

       

      25

       

      Prescriptions

       

      12

       

      Eye
      Care

       

      15

       

      Therapy
      & Counseling

           

      Uncovered
      Dental Expenses

       

      12

       

      Orthodontia

       

      150

       

      Gas/Oil
      Oldest Child’s Car

       

      45

       

      Maintenance
      & Repairs

       

      50

       

      Auto
      Insurance

       

      120

       

      License

       

      7

       

      Recreation/Entertainment

      75

       

      75

      Vacations/Travel

      50

       

      50

      Personal
      Care Items

       

      25

       

      Hair
      Care

       

      10

       

      Child
      Care

       

      325

       

      Tuition

           

      Books/Supplies

       

      10

       

      Allowances

       

      25

       

      Non-School
      Classes/Enrichment

       

      45

       

      Sports
      Fees

       

      35

       

      Piano
      Lessons

       

      55

       

      Pet
      Expenses

       

      10

       

      Gifts

       

      15

       

      TOTALS:

      275

      1290

      275

      EMI couples have
      helped refine the delineation between a shared expense and a separately paid
      expense not to be shared between the two parents.  Much of this is common
      sense, but a search of other state statutes reveals that may states see these
      categories of additional expense as either added on to the basic child support
      amount paid or as a shared expense between the parties.[101]

      1. FOOD AND GROCERIES: Most often, food and groceries are     not considered part
        of the shared categories of expenses. Even when there is a great disparity in
        incomes, the first task of the budget process is to ask both parents to
        estimate what they spend for food on themselves and what they spend for food on
        he children. Perhaps the reason parents see this cost not in the middle column
        of shared expenses is that no records should be kept as to which items are
        eaten or used by the children and which items are consumed by the parent. That
        would be too difficult to track. In those cases where the children are eating
        most of their meals at one home, parents can allow one parent to access the
        checkbook for some agreed upon amount each month to supplement their food
        costs. Of course, this would not be necessary if there were equivalent time
        sharing.


      2. CHILDREN’S LUNCHES AT SCHOOL: This is an easy category to consider shared
        because it can be identified and parents usually pay for it at the beginning of
        each week or each month.


      3. EATING OUT AND RESTAURANTS: For many families, this is a ritual of living in America. Couples uniformly have decided to designate this as a personal expense not part of
        the Children’s Checkbook . No one expects to go to the other parent or to the
        checkbook and say, you owe me two dollars for the four dollars I spent on the
        children last weekend at the Dairy Queen.


      4. CLOTHING: Clothing has traditionally been viewed as a shared expense. Even for
        couples who do not run the shared expenses through the checkbook, clothing, at
        least the larger items, are generally seen as a shared expense.  In Arkansas the cost of clothing is specifically listed as a reason for deviating from the
        guidelines formula.[102]  In Indiana, a deviation from the child
        support guidelines is permitted if the non-custodial parent purchases school
        clothes.[103]


      5. MEDICAL INSURANCE: As of 1998, forty-two states already viewed medical
        insurance premiums as an add-on to support guidelines,[104] with the most common approach for
        adjusting the formula being on a pro rata basis.[105]  If the family has medical insurance
        coverage, this is a usually a deduction from their salary check. The amount
        deducted can be noted here as a children’s expense to be shared




      6. UNCOVERED MEDICAL AND DENTAL EXPENSES:

        Prescriptions,
        eye care, therapy, counseling, and orthodontia are expense categories are
        traditionally seen as shared expenses, not only in the Children’s Checkbook
        process but also in Minnesota.[106] The couple is asked not to predict what
        these costs will be in the future, but to list a general level of family
        medical expense needs based upon past experience.  Some families rely heavily
        on medicine while other families spend very little on this category of
        expenses.  Costs depend on a family’s level of health and access to medical
        services.



      7. PERSONAL CARE ITEMS: These items may include grooming products, cosmetics and
        personal care products for teenagers, and other non-grocery items needed by the
        children.  Generally, this category does not produce controversy and most often
        it is shared by the parents.


      8. HAIRCARE: This is also often seen as a shared expense.  Running this expense
        through the checkbook allows either parent to take the children for a hair care
        appointment and pay from the joint checkbook.


      9. CHILDCARE: Not only do couples not take issue with sharing this expense, it is
        also either a shared item or an add-on deviation in many states.


      10. EDUCATION EXPENSES: Tuition, books, supplies and other school costs can be
        listed here in more detail. These are always seen as shared expenses.[107]


      11. NON-SCHOOL CLASSES, ENRICHMENT, CAMPS: This category of expense has often
        caused controversy in the actual implementation of child support in the legal
        system. Costs of lessons, summer camp, dance and extracurricular activities are
        not specifically addressed by most state deviations other than saying they may
        be generally considered as grounds for deviating. In constructing the budget
        jointly, parents are asked to decide first if the activity is a desired expense
        and secondly what the cost is. Later, there will be a discussion about how the
        expense is shared.


      12. SPORTS FEES: In the budgeting process, parents with children in sports and
        extracurricular activities see this category as somewhat different than
        enrichment and non-school classes. Activity fees charged by many schools may
        also be part of this category.


      13. AUTOMOBILE EXPENSES: For those families that have teenage children driving
        automobiles, all of the expenses related to the car such as gas, oil, repairs
        and insurance can be listed here.


      14. GIFTS: This line item relates only to gifts the children give to their friends
        at birthday parties and other special times. It has not been used to include
        gifts that the parents give to the children as that is seen not as a shared
        expense, but paid separately.


      15. RECREATION AND ENTERTAINMENT: This category is seen as not part of the shared
        account because it is too difficult to keep track of and it is part of each
        parent’s discretionary parenting. This category does not appear in any of the
        guidelines as a deviation or an add-on in any of the fifty states.


      16. HOUSING: Although this has typically not been a shared cost, in some cases at
        Erickson Mediation Institute where one parent is staying in a costly home or
        could not stay in home ownership without some shared help from the other
        parent, the parents may decide to add this as a category of shared children’s
        expenses.  Interestingly, Georgia lists housing as a specific deviation. [108]  Indiana lists this as a deviation
        (presumably downward) if “both parents are in the military and have housing provided.”[109]  New Hampshire cites special
        circumstances for deviating that include “economic consequences to either party
        of the disposition of a marital home for the benefit of the child.”[110]

        Colorado lists a blanket reason for deviation:
        “Deviation is allowed where application of the guideline would be inequitable,
        unjust, or inappropriate.”[111]  Most states appear to have a general
        fairness deviation such as New York’s calling for deviation “if the amount is
        unjust or inappropriate when considering the financial resources of the parents
        and of the child.”[112] Arkansas has a peculiar blanket
        deviation that to throws in everything except the kitchen sink.  It says that
        “relevant factors [for a deviation] include: food; shelter and utilities; clothing;
        medical expenses; educational expenses; dental expenses; child care; accustomed
        standard of living; recreation; insurance; transportation expenses; and other income
        or assets available to support the child from whatever source.”[113]  Finally, Minnesota’s new income shares
        model lists deviation factors.  The Senate author of the bill that created the
        new statute writes:


        Section 17 of
        the new law includes a philosophical statement that “deviation is intended to
        encourage prompt and regular payments, and to prevent either parent or the
        joint child from living in poverty.” The author [of the bill] expects that this
        statement will send a message to courts that they should allow deviation in
        order to create fair child support orders.[114]


        After completing
        the task of building the budget, the parents have now answered the question of
        what it costs their particular family to raise the children.  They next must
        determine how to share the costs as well as whether each of them is able to
        meet their combined living expenses when their personal budgets are added in. 
        It is helpful when working with couples on this task to use a divorce planning
        software program to calculate their income, expenses and budget shortfalls. 
        There are several available that are quite useful in helping couples view their
        entire cash flow picture.[115] These software programs can also
        calculate the guidelines child support amount in their state for comparison
        purposes when discussing the use of the Children’s Checkbook.

  4. Suggestions for
    Changing Existing Child Support Statutes







    1. Implementing
      the Child Support Plan




      1. Encourage
        Cooperation (Mutuality and Ownership of the Decisions)

        I urge that
        greater use of the Children’s Checkbook  Method will lead to more cooperation
        and mutuality of ownership of the final result.  Child support statutes should
        require mediation to be the first choice.  If mediation fails, the couple can
        always ask for a judicial ruling.  This approach would begin to eliminate
        unhealthy conflict and positional bargaining arguments so that the child
        support arrangements are driven more by actual numbers and by family choices
        rather than by which interpretation of a formula prevails.  Or, as one
        commentator has observed in support of settlement as opposed to relying on
        court rulings for these intimate family decisions:


        Through
        individually adaptive solutions in settlement we may see the limits of law and
        explore avenues for law reform. Settlement (and its sometime rejection of law)
        could just as easily be seen as a democratic expression of individual justice
        where rules made for the aggregate would either be unjust, or simply irrelevant
        to the achievement of justice in individual cases. Settlement is, thus, not
        “unprincipled,” but may be seen as aquestioning of particular principles or the
        application of different individually adaptive principles.[116]


        Indeed, when
        parents are asked to jointly create a budget for what they believe they will
        spend on the children in the next twelve months, they are essentially designing
        their own deviations each time they decide what they can afford for their
        children and what they want their children to have.  Jim Coogler, the Atlanta attorney widely credited with being the first to create a structured process of
        divorce mediation, often said to couples in the mediation room, “I want to help
        you create your own law of fairness.”[117]  He also found in his early work with
        couples that when he assigned them a joint task to complete, they would engage
        in the joint effort and forget about their differences.[118] When couples are engaged in the joint
        task of discussing fairness and they are busy determining the amount of money
        they have to spend on their children, they are building trust and fairness.
        When couples are in the process of preparing for a temporary hearing, they are
        more likely to feel as if they are in an adversarial process and are less
        likely to recognize that because they are aligned together for the duration of
        the children’s minority, they must find a way to cooperate.

        The Oregon
        Futures Commission recognized that when the focus of the task is changed from
        finding an “award” to creating a “plan,” a paradigm shift occurs.[119]  This shift in thinking is created by
        redefining the problem in a more future-focused manner that requires a joint
        effort to solve the problem.  Perhaps other states could take the simplified approach
        that Tennessee takes with its parenting plan legislation and require that
        within 30 days of filing an action for dissolution, the parents must submit a
        proposed Child Support Plan (together with their proposed parenting plan) and
        if there are differences in the plans, the parties will be referred to
        mediation.[120]

      2. Account
        for Differences in Each Family’s Expenditures

        Child support
        statutes should take into account the actual specific costs of child-related
        expenses (sometimes referred to as ‘the needs of the children’) rather than
        relying upon outdated or generalized national data about average costs of
        raising children.  In a curious backward way, the courts do take into account
        the cost needs of the children when a rote application of the guidelines
        formula to very high income parents results in unfair and preposterous child
        support amounts, sometimes referred to as the “three ponies rule.”[121]  If high income parents are permitted to
        argue that the guidelines formulas infringe upon their right to “direct the
        lifestyle of his or her children,” then why shouldn’t all parents be permitted
        and indeed encouraged to engage in the same discussion about the level of
        funding that their children need or require?

      3. Account
        for Who Pays Which Expenses of the Children

        In addition to
        allowing each family to decide for itself the level of child related expenses,
        greater use of the Children’s Checkbook would also direct which parent pays for
        which expenses of the children.  This approach can take into account
        differences in housing, when, for example, in mediation, parties will
        frequently decide that the one parent should stay in the family home, even
        though that home is quite expensive and requires a joint sacrifice to be made
        by both parents.  It is doubtful that judges could really “deviate” enough from
        the guidelines in order to take into account the need for this sacrifice.  This
        is actually a decision that must be made by the parents.

        Furthermore, in
        order to prevent confusion and to lessen conflict, it would be helpful if all
        couples getting divorced took some time to discuss exactly what items and at
        what level of costs the recipient of child support should be expected to
        purchase on behalf of the children. As more and more parents are engaging in
        equal or near equal time sharing and as men’s and women’s incomes reach more
        equivalency, the checkbook method assists couples in being clear and specific
        about how they will equally share the costs of raising the minor children.

        For almost all
        parents who experience differing incomes, unequal time with the children, and
        dissimilar purchasing patterns for the children, allowing parents to clarify
        spending patterns through the use of the Children’s Checkbook would also likely
        reduce the number of post decree motions to change child support.


    2. Benefits
      of the Checkbook Model – Desirable Goals that the New Method Accomplishes





      1. No More Trading Days for Dollars

        The Children’s Checkbook  Method
        disconnects the child support calculation from the custody arrangement and the
        problem of trading days for dollars is eliminated.  In other words, it does not
        matter whether one parent is the visitor, or the physical custody parent, or
        whether the parties are calling their arrangement a shared parenting plan,
        joint custody, split custody, sole custody, or whether the schedule is 50-50,
        60-40, or 80-20 with each parent.  The Children’s Checkbook  Method recognizes
        that the only expense that is really affected by changes in the schedule is the
        number of meals provided by each parent (and perhaps in some cases the
        electricity bill from kids leaving lights on and the water bill because of long
        showers).  Otherwise, all of the other expenses remain constant and can be paid
        by either parent.  It becomes simply a matter of determining who is going to
        pay for which items needed by the children and what these costs are. When they
        are paid through a checkbook mechanism, the real discussion can then center on
        what can be afforded and how much more the higher income parent should be
        contributing to these expenses.  In most cases where couples are using and
        being successful at the checkbook method, the parents contribute to the checkbook
        on a proportional basis according to their gross or net incomes.

      2. Both
        Parents are Contributing to the Children’s Expenses

        The checkbook
        method allows for and encourages more participation from both parents and does
        not allow for a slide back into the totally discretionary situation that the
        guidelines were determined to avoid.  Just as the parenting plan approach adds
        much more detail to the typical one sentence custody award, the Children’s
        Checkbook Method provides for a more comprehensive approach that also gives
        parents an easy record to review when modification is needed.  When both
        parents participate in building the Support Plan, compliance with the final
        agreement will likely increase because the parents participated in designing
        the agreement themselves.  Use of the checkbook allows for the lower income
        parent to fully participate in the purchases of items for the children rather
        than saying, “You will just have to get that from your mother, she makes more
        than I do.”

      3. Alleviates
        the Mistrust

        Parents using the
        checkbook method can readily see where the funds are being spent.  There is no
        need to keep track of and exchange receipts because the checkbook automatically
        records everything for the parents.  The whole system is open and transparent
        to both.  As to the obvious concern that one person will use the checkbook
        approach to control or harass the other parent, many mothers (who will often
        take on more of the purchasing of items for the children) report that the use
        of the checkbook “really proves how expensive it is to raise children.” [122]

      4. Easily
        Enforceable

        Courts could take
        the posture of the Texas court in Bailey v. Bailey [123] and supervise the use of the checkbook. 
        They could also require parents to retain the checkbook for examination by the
        court in any dispute.  However, more likely, if the parents cannot maintain
        cooperation around the use of the checkbook, the language as set forth in the
        Appendix suggests that they will simply discontinue the method and follow the
        existing child support statutes in force at the time they stop using the checkbook.

      5. Self-Modifying

        The language used
        in the application of the checkbook method suggests that parents share the
        total agreed-upon costs of the children through a proportional sharing of the
        total monthly costs  using gross income figures. Parents are expected to
        exchange income verification each year (usually W-2 statements are sufficient
        or some other verification mechanism such as tax returns) and as incomes
        change, the pro rata contribution to the checking account will change.



  5. Conclusion

    It is time to
    reject the notion that we might find the proper child support payment level
    through application of a perfect formula.  Rather, let us use our energy and
    resources to encourage parents to create Child Support Plans.[124]  We must recognize that, even when
    deviations from the formula are meant to take off the rough edges of rote
    application of the guidelines tables, fairness is always elusive, particularly
    when someone other than the parents makes such important decisions for them. 
    If the impetus for parenting plans was a paradigm shift away from fighting over
    who was a better or worse parent, we should likewise begin to frame the child
    support question in a similar future-focused fashion that requires cooperation
    to answer the question.  We should ask parents to jointly build Child Support
    Plans, and we must also give them the tools to accomplish this task.  One of
    the tools is the language found in the Appendix that sets forth language
    developed by Erickson Mediation Institute during the past 30 years of practice.
    Divorcingcouples can be successful at sharing the costs of raising
    children in two separate homes when guided through a process of first
    setting the amount of each category of children’s costs and then negotiating
    the method of sharing these costs.

    Realistically, a
    Child Support Plan would be no more difficult for courts and hearing officers
    to administer than the current task concerning parenting plans.  However, most
    parents would need the assistance of a neutral mediator, much as they are doing
    now with the creation of parenting plans.  Such a re-focusing of the statutes
    would recognize the complexity of the task and would allow each family to find
    fairness on its own with the guidance of a mediator.  Just as the statutory
    movement towards parenting plan legislation was recognition that cooperation
    was better than adversarial posturing, this article argues that the use of a
    Children’s Checkbook approach is consistent with the family court’s emphasis on
    the greater use of mediation to encourage post-divorce cooperation.  The use of
    a Children’s Checkbook  is also consistent with each state’s slow movement
    towards creating more shared categories of costs.[125]



View Child Support Plan & Children’s Checkbook: Sample Language


View all footnotes for this article.

                        author

Stephen Erickson

Stephen Erickson co-founded Erickson Mediation Institute (EMI) in 1977. Since that time, he has been practicing family mediation and other types of mediation as well as training mediators nationally and internationally. Steve and his wife, Marilyn McKnight, have co-authored numerous articles and several books including The Children's Book: For the Sake of the… MORE >

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