David Giles responds to my comments on his analysis of the Contino decision. David states: “The point I was trying to make, and perhaps it didn’t come across clearly, is that the dollars for days’ argument may be more easily rebutted.”
What I’ve seen prior to the Supreme Court decision is that in almost every case where a father requests shared custody, the mother responds by saying that he’s just doing it to reduce child support. While I think that the Supreme Court decision probably makes it harder to get that reduction, the fear of mothers about the reduction in child support will still be there, and so they will still continue to resist shared custody, and still continue to accuse the father of seeking it to reduce child support.
Another factor to consider is that child support is fairly easy to change, whereas changing an access schedule is difficult. So, a support payor who parents the children over 40% of the time can initially agree to pay the full table amount of child support, knowing that in a year or two there may be an opportunity to reduce child support, or at least not increase it as his or her income increases. On the other hand, it will be next to impossible for the support recipient to cut access down once it has been in place for a year or two.
Another thing to consider is that for relationships in which spousal support is payable, which is the case in most relationships that last a few years, the trend in the courts, now formalized in the Spousal Support Guidelines, has been to divide up the family income using certain percentages. So, even prior to the Supreme Court decision, it was pretty much the case that most savings you might get from a reduction in child support due to shared custody would be offset due to an increase in spousal support payable. So, in cases where spousal support is payable, which is very many cases, the Supreme Court decision might not make a big difference.
David also explains further his position that, “a valid argument may now be made in the determination of the proper amount of child support to be paid below the 40% threshold using the pro-rated set-off amount.” However, the language of the Child Support Guidelines is very clear: the table amount is to be used except in specifically enumerated cases.