my ex has been trying to collect child support from me for a while. we share 50/50 custody but yet i have to pay her child support. she takes the kids to school and pays for their health insurance. i have a job but it is sort of under the table because my check will get garnished. if i take her to court and get full custody, can i turn around and make her pay me child suppot instead? i dont see how its fair that i have the kids 50/50 of the time and i still have to pay her
since im not getting paychecks, my actual income is 0 so i shouldnt have to pay anything. i just need a good attorney to bat for me at this point
Family Law Attorney
I disagree with the previous answer. The answer is not 'No;' it's 'It's not that simple.'
The very concept of 'full custody' is not quite right. There are two related issues to child custody: legal custody, and physical custody, or parenting time.
Legal custody refers to decision-making authority over a child. A parent with legal custody decides where a child goes to school and what religion they observe, makes medical decisions for the child, and so on. Parents can agree to joint legal custody, sharing this authority, but a court will not order joint custody unless the parents agree to it. When we talk about "full custody," this is usually what we mean.
Physical custody, or parenting time, refers to where a child lives. Each custody case ends with a parenting plan describing where the child or children stay. These plans can be as specific or general as the parents need. The parents are free to deviate from the plan if they agree to do so, but the plan is there for when they can't agree.
Usually, a parent who has legal custody of a child also has more parenting time, but this is not required. Parents can share equal parenting time while one has legal custody; or parents can share joint legal custody while one of them has physical custody most of the time.
But child support payments are based on the plan for physical custody. Child support is calculated based on the amount of time (measured in the number of overnight stays) that each parent has with the child each year, and each parent's income. A parent who has 51% or more of each year with the child receives support; the parent who has less pays support. If two parents have exactly equal parenting time, then the parent who earns more money may pay support anyway. This page contains an application for computing the child support amounts presumed correct under Oregon law: https://justice.oregon.gov/guidelines/
Who has legal custody doesn't directly affect child support. It's the parenting time schedule that alters your support obligation. So yes, you do have a financial incentive to maximize the amount of time you spend with your child each year.
Courts make decisions about legal and physical custody according to the best interests of the child. "I don't want to pay child support" is not a reason a court will consider to be good; in fact, if anyone ever heard you say that, it would be strong evidence against you getting more custody rights. Your ex could say that you don't really care about your child, you just care about paying less support. If you want a court to order a given schedule, and its resulting child support obligation, you have to demonstrate why a given schedule was in the child's best interests.
You should be aware, too, that if you owe child support, then you will not be able to evade your obligation by working "under the table." Even if you avoid getting a job with a paycheck so that you don't get your wages garnished for support, you're still accruing a support obligation every month. That debt will continue to mount, and will accrue interest at 9% per year if unpaid. It cannot be discharged in bankruptcy, and will not go away even once your child turns 18. Refusing to pay child support can have serious consequences. It can eventually get your driver's license suspended, and can even get you put in jail if it can be demonstrated that you evaded your obligation intentionally. What you need to do, it sounds like, is to modify your support obligation to reflect your actual income. If you have 50% parenting time, then you shouldn't be paying that much in support.
You should consult with an attorney if you're contemplating legal action. You can call the Oregon State Bar for a free referral at 503-684-3763.
Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: email@example.com | Online: www.northwestlawoffice.com
Family Law Attorney
I agree with Mr. Bodzin's answer. Also, your income won't be $0.00. Unless you are disabled and unable to work, you will most likely be "imputed" at minimum wage. This means that the court will say you are at least able to make minimum wage, which is $1,525.33 and this will be your number when child support is calculated. However, you do have the under-the-table job and there's at least and argument that your income should really be your potential income if you to work 40 hours per week at whatever the hourly pay at that job is.
The additional cost that the mother pays to insure the child(ren) also goes into the calculation, so there will likely be language that you need to provide health insurance if it is available at a reasonable cost or otherwise provide "cash-medical" support as well.
Finally, if either one of you has employment-related (this includes for job-seeking purposes) child care costs for children that are 13 years old or younger or disabled, then those costs go into the child support calculation as well.
My responses to posts on AVVO are not legal advice, nor do they create an attorney-client relationship. In order to provide true (and reliable) legal advice, an attorney must be able to ask questions of the person seeking legal advice and to thus gather the appropriate information. In order for an attorney-client relationship to exist, you and I both have to agree the the terms of such an agreement.