301 865-1101

In any Maryland custody case the subject of financial issues surrounding the child or children is invariably raised  Sometimes divorced or separated parents desire to share expenses of the children on an ad hoc basis and have no formal order for support.  While that is not “legal” in Maryland, some people do it.

In fact, that may happen a greater percentage of the time than I might suspect because such people might never need our help.  Some people even do that without ever having a court order.

In a previous article The Maryland Child Support Magic Number (128) we discussed that there is a magic number of overnight visitations (128) whereby a parent would be entitled to review and possible reduction in child support because the support would be based upon the “shared custody” formula.  Maryland has an online calculator where the worksheets and computations are available http://www.dhr.state.md.us/CSOCGuide/App/disclaimer.do

Yet, from time to time, the definition of “overnights” has not been as clear as many people would like.  These are very unusual and uncommon circumstances but they have come up and will ,no doubt, come up again for someone.

Review of the child support code spells out how there are really two (2) child support formulas, one is called a “primary custody” worksheet and the other is called a “shared” child support worksheet.  Both are available at the online child support calculator above and also at the following link for divorce and custody forms http://mdcourts.gov/family/formsindex.html

Getting to 128?  Well, sometimes it’s not so clear what constitutes an overnight or overnights?  In some cases, the agreement or order may say the child(ren) are living with one parent but after an evolution of time it does not really work out that way.

Perhaps a parent is not available as intended, or there is illness or some other life event that results in the child(ren) being predominantly with the other parent.  In such a case, the child support may be modified even if it is predicated upon a projection.  That means a parent who was receiving (or paying) child support predicated upon 128 overnights per year does not have to wait 365 days so ask for the modification.  In fact, it would be imprudent to wait that long because the support can only be adjusted retroactively to the date it was requested.

By way of example:  If the arrangement was envisioned to be for 50/50 overnights, and between January 1st and April 1st one parent had the kids 100% of the of the overnights.  That parent (100%) can file to modify after April 1st because on that 1st quarter it is clearly not 50/50 in practice.

Yet you may ask, what is an “overnight?”

What about people on an early bird schedule over, “O’ dark -30” type?  Is having the children until 4am an overnight?  5? 6? 7?  What about a case where one parent has the children a substantial, if not a majority of the time but simply does not put them to bed and wake them up?

Maybe a Dad keeps his 3 year old child all day every weekday because he is disabled and does not work  for medical reasons.  It saves from any daycare expense but, what if he cannot keep the child overnight because of the same disability?  Should that count?

With respect to the former “early bird” question; I have experienced more than one judge treating the situation like “Cinderella” ie. after midnight is overnight.  With the dilemma of a parent spending the majority of time but not officially overnight, I have sometimes seen a judge set a compromise amount out of simple logic that “sleeping children cost nothing.”

While I don’t agree with either of the foregoing hard, fast  and even arbitrary conclusions, I take away this:   Fairness is part of the equation in any custody or domestic case.  In fact, the Circuit Court itself is defined as a “court of equity” and that charges the court with determining what is equitable ( ie. fair) http://www.merriam-webster.com/dictionary/equitable

Fairness is always, hopefully, the Court’s goal at the end of the day.  Fairness is unfortunately subject and remember the custody courts primary goal is fairness to the children.

Tim Conlon, Esquire for The Custody Place

301 865-1101

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