>In a recent case, a father attempted to modify a parent child contact order which provided for 50/50 split between the parents. A daughter had not stayed with her mother for a period of over a year, and father decided to ask the court to change the order to reflect the new reality. Under Vermont rules, a parent child contact order can be changed if there is an “substantial, unanticipated change in material circumstances.” The judge refused to amend the order, commenting that it was not unanticipated that children, as they grew older, would decide for themselves which parent to reside with. The judge recommended to the father, however, that since the child support order reflected a 50/50 split, and therefore the father was receiving less child support than he would under a sole custody child support order, Father could file a motion to modify child support with the magistrate. The Office of Child Support agreed with the Judge that the magistrate could modify child support based on actual time the child spent with each parent.
The magistrate disagreed. She refused to modify child support, stating that the statute required the magistrate to calculate guidelines based on the order, and not on what the parent child contact schedule actually was. The father therefore was left with supporting a child full time under a child support order that reflected a part time arrangement.
It is my opinion that the Judge and the Office of Child Support are right, although the statute could certainly be interpreted the way the magistrate has interpreted it. One part of the child support statute provides: “The legislature finds and declares as public policy that… child support orders should reflect the true costs of raising children…” Because the true cost of raising a child depends on how much time a child spends with his parent, it would seem that the court could take actual time spent with each parent into account. The other side would argue, however, that child support guidelines are in place to establish consistency in child support, and if the court took into account actual times a child stayed with each parent, then there would be more litigation and less consistency.
The problem began with the Family Court judge making a ruling that there was no “unanticipated” change in circumstances, even though the daughter had been living with her father full time for over a year. The Court should have modified the previous order.