Split Custody and the Application of the Guidelines

The increasing use of joint parenting agreements brings with it arrangements in which both parents wish to be the “custodial parent” at least part of the time, which in turn leads to confusion and problems in setting child support. Not adequately addressed by the guidelines is the determination of child support as the custodial arrangement moves from the generic sole custody with weekend visitation model to some of the more atypical arrangement (e.g., an approximate 50-50 split of time with either parent, whether on a weekly, bi-weekly, or other basis; a split of the children so that some reside primarily with one parent while others reside primarily with the other parent; a split by which one parent gets the children for a big block of time during the summer). Practitioners grappling with such arrangements have to take the underlying policy – that both parents have an obligation to support their children – into account when determining a fair allocation of the support in unusual circumstances.

In In re marriage of Keown, 225 Ill.App.3d 808, 587 N.E.2d 644, 167 Ill.Dec. 375 (4th Dist. 1992), involving split custody, the court affirmed the trial court’s order that, in addition to equally dividing certain specified expenses, each parent would be required to bear the costs of supporting the child or children living with that parent. In that case, although the father was a wage earner and the mother was not, the court found the mother’s financial resources better than the father’s. Cf. In re Marriage of Flemming, 143 Ill.App.3d 592, 493 N.E.2d 666, 97 Ill.Dec. 859 (3d Dist. 1986)(upholding order requiring father in dual custody arrangement to pay mother, who had custody of other child, only 12.5 percent of his net income).

In Flemming, the mother and the father each had custody of one of the parties’ two minor children. The mother’s income was lower than the father’s and would have been reduced yet further if the 20-percent guideline for support to the custodian-father had been automatically applied. In affirming the trial court’s split of the trial court’s split of the 25-percent for two children guideline in this special case, the appellate court noted with approval the trial court’s rationale that “when children are split, the guidelines become a little bit ambiguous.” 493, N.E.2d at 671. The appellate court, taking the parents’ respective income into account in upholding the trial court’s support award, noted that the award would enable the child residing with the mother to maintain the standard of living that would have been enjoyed had the marriage not been dissolved.

Again, the appellate court in In re Marriage of Steadman, 283 Ill.App.3d 703, 670 N.E.2d 1146, 219 Ill.Dec. 258 (3d Dist. 1996), specifically stated that when parties divide the custody of their children in a settlement agreement, there are no specific guidelines for the court to follow.

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