State Supreme Court says incomes can be taken into account
Should a parent with primary custody be required to pay child support to the other, less affluent parent if the money gap between them is wide enough?
A new -- if closely decided -- ruling by the Pennsylvania Supreme Court involving a Pittsburgh couple says yes.
Legal experts worried the decision could trigger a flood of litigation in divorce cases that otherwise would not have gone to trial. They also say the court's 3-2 decision contradicts a long-standing legal doctrine that parents with custody -- when the child is with that parent more than 50 percent of the time -- shouldn't have to pay support because they are already providing most of the care.
The ruling, authored by Justice Sandra Schultz Newman, said that it was wrong not to consider the disparity in parents' incomes when fashioning child support orders.
"Where the parent who does not have primary custody has a less significant income than the custodial parent, it is likely that he or she will not be able to provide an environment that resembles the one in which the children are accustomed to living with the custodial parent," she wrote.
While divorce frequently results in "a downward adjustment in lifestyle" for everyone involved, "we would be remiss in failing to ignore the reality of what happens when children are required to live vastly different lives depending upon which parent has custody on any given day."
But Chief Justice Ralph Cappy, in his dissent, complained that the majority's approach gives "precious little guidance" to lower courts. "I do not believe that the health of any given parent-child relationship is measured by a parent's ability to provide a surfeit of expensive possessions or experiences for her child. ... Or to put it more colloquially, can money buy love? I think not," he wrote.
Under existing state guidelines, a formula is used to calculate support for one or more children based on the parents' combined income. The custodial parent provides his or her share through expenditures for food, shelter, clothing, transportation and other needs, while the noncustodial parent pays support, based on the formula.
The Supreme Court's decision may result in an abandonment of the formula and a lengthy, expensive trial instead -- in which the judge tries to decide whether the noncustodial parent's income is so far below the custodial parent's "that not only does the noncustodial parent not have to pay any support, he or she may even get some money back from the other parent," said Chris Gillotti, who represented the father in the case, Robert Colonna, a software executive from Squirrel Hill who had primary custody.
"There are no clear guidelines as to what constitutes a significant difference between what the mother makes and what the father makes," he said. And while the decision may be meant to apply to cases where one parent is very wealthy and the other is not, "what we're afraid of is in any situation where there's a disparity of incomes, divorce cases will go [to] trial that otherwise would have [been] settled, and that's never a good thing."
But James Lieber, who represented Colonna's ex-wife, Mary, also of Squirrel Hill, praised the decision as "clear, rational and child-oriented, one that eliminated a very arbitrary aspect of custody law that automatically says primary custodial parents don't have to pay child support."
"Just because parents find themselves in disparate economic conditions as a result of divorce, doesn't mean the kids should go from the palace to hovel," Lieber said. "That can't be good for the children. The idea is retain stability in a hurtful situation, to boost the child's level of existence when they're with the less affluent spouse."
Both Lieber and Gillotti agreed, though, that the decision probably won't apply to a majority of cases, since in most divorces, the noncustodial parent is usually the father, who generally makes more money than the primary caregiver and pays support anyway.
