How Does the Court Determine Custodial Timeshare When the Child Is in Daycare or School?

There are many factors that the court can consider in making a timeshare determination.

A parent’s custodial timeshare percentage can include the time the child is in day care. Stated another way, a noncustodial parent is not necessarily entitled to a time-share credit in the child support equation based on the fact the custodial parent places the child in day care. [Marriage of Whealon (1997) 53 CA4th 132, 145, 61 CR2d 559, 567]
While [noncustodial parent’s] argument [for the credit]
is not without a certain good-for-the-gander-good-for-the-goose attractiveness, it ultimately founders on the practical reality of day-to-day responsibility for a child. It is the custodial spouse who, after all, has the burden of finding, arranging and fronting the money for appropriate day care, who must deliver and pick up the child, and whose work day will be interrupted if there are any medical or other emergencies.
[Marriage of Whealon, supra, 53 CA4th at 145, 61 CR2d at 567 (brackets added)]
Likewise, when there is admissible evidence showing the parent has responsibility for a grade school child during the school day, it is error to calculate the “H% factor” based solely on the number of hours he or she was awarded physical custody. [DaSilva v. DaSilva, supra, 119 CA4th at 1036, 15 CR3d at 63–64]
  • Where both parents were listed on Child’s school emergency card and worked at the school as “active parents” 20 hours/semester, and Father often took Child to school, chaperoned at school events, acted as a field trip supervisor, and cared for Child when he was ill, Father should have been credited in the guideline formula (H%) with at least some of the 1,260 annual hours (52 days) Child was in school. [DaSilva v. DaSilva, supra, 119 CA4th at 1036]
Time-sharing may even be imputed for a child living away at boarding school based on parental responsibilityfor the child while at school. The fact the child is not residing at home does not preclude a parent from exercising physical responsibility. [Marriage of Katzberg, supra, 88 CA4th at 982–983—despite joint custody, all of child’s boarding school time imputed to father who was primary caretaker and assumed overall responsibility for child while at school]
“While an argument could be made that the circumstances … where the child is living away from home … differ from that of child care where the child is nonetheless residing every night with the primary caretaker, that does not necessarily alter who has primary physical responsibility for the child and thus to whom the time at school should be imputed.”
[Marriage of Katzberg, supra, 88 CA4th at 983, see also Marriage of Schopfer (2010) 186 CA4th 524, —appropriate to impute time at school to 18–year-old’s stepfather who had full physical responsibility for her under court order for support (stepfather had been child’s primary caretaker before enrolling her in boarding school, he maintained frequent contact with her thereafter, and she intended to return home to live with him after graduation)]
Imputed time-sharing figures, of course, cannot be plucked from thin air. A parent who desires credit for time the child is not in his or her physical custody has the burden of producing admissible evidence demonstrating he or she is primarily responsible for the child during those periods. [DaSilva v. DaSilva, supra, 119 CA4th at 1034, see Marriage of Katzberg, supra, 88 CA4th at 983, —despite joint custody rights, mother presented no competent evidence of physical responsibility for child while away at boarding school]
For instance, when the dispute is over time-sharing (H%) while the child is in school, relevant factors include:
  • who pays for transportation or transports the child;
  • who is designated to respond to medical or other emergencies;
  • who is responsible for paying tuition (if any) and incidental school expenses; and
  • who participates in school activities, fundraisers or other school-related functions. [DaSilva v. DaSilva, supra, 119 CA4th at 1034–1035, 15 CR3d at 62; Marriage of Katzberg, supra, 88 CA4th at 982–984, 106 CR2d at 162–164]

The focus is on the “practical reality of day-to-day responsibility” for the child.

Approximated time-shares may be required: In reality, parents often do not have clearly identifiable hours or days of responsibility for a child while at school, camp or otherwise away from a parent’s physical custody. Transportation, payment of school and extracurricular expenses, medical decision-making, etc. are often shared by both parents. Families commonly have complex arrangements and various backup plans for dealing with these issues on a daily basis. Consequently, courts are asked to “approximate” hours of responsibility and have discretion to apportion time-share during school hours (and the like) depending on the particular parent’s overall level of involvement in the child’s daily routine. [See DaSilva v. DaSilva, supra, 119 CA4th at 1035]
Custodial timeshare is an one of the two main factors in the child support calculation. It is important to discuss this issue with a competent Family Law attorney.Contact the Law Offices of H. William Edgar for a consultation regarding the child support calculation and the custodial timeshare percentage. We have offices in Riverside, Temecula and Anaheim. Let our team help you get the results that your family deserves.
Categories: