By Adrienne Griffis
In my last blog post, I discussed some of the ways in which Arkansas law regarding alimony has been modified in an attempt to catch up to the realities of modern society. Another aspect of the law in Arkansas that needs significant work is the way child support is calculated. The current setup involves the “noncustodial parent” paying a set amount of child support to the “custodial parent” as determined by the Arkansas Family Support Chart, which is based on the noncustodial parent’s net income. One might think having a chart that specifically delineates the applicable child support obligation would be pretty straightforward, and in some cases it is. Unfortunately, however, the number of families for which the chart is basically useless is growing steadily. Here are the biggest pitfalls in the current way that child support is calculated, and the reasons I believe we need to chuck the current child support chart in favor of a more modern approach.
Problem—Defining the “custodial parent” and “noncustodial parent.”
Since 2013, Arkansas law has statutorily preferred joint custody, which means “the approximate and reasonable equal division of time with the child.” If the parents are spending equal time with the child, there is no “noncustodial parent.” So who pays child support? The current child support guidelines provide no clear solution to this important question, leaving domestic relations judges with no instructions regarding how child support should be assessed in joint custody situations.
An even bigger problem occurs when there is a clear noncustodial parent, but that parent spends a significant amount of time with the child that approaches but does not reach an equivalent custodial schedule. The current child support guidelines “assume that the noncustodial parent will have visitation every other weekend and for several weeks during the summer.” I have not litigated in any courts for which this is a typical visitation schedule. Most of the time, the noncustodial parent has at least one additional visitation day each week, at least half of the time during the child’s school holidays, at least half of summer break, and/or an extended “weekend” in addition to every other Friday through Sunday.
Although the guidelines do allow courts to deviate from the amount of child support reflected in the chart due to “extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements,” there are no standards for either the amount of “extraordinary” time that warrants a deviation or how much of a downward deviation is appropriate. As you might expect, the lack of any definite standards for how to calculate child support in these situations has led to varying practices among courts and, as a result, uncertainty by the parties as to how much child support they will owe or receive after a divorce or a change in the visitation schedule for their children.
Problem—The custodial parent makes more money than the noncustodial parent.
The amount of child support payable by a noncustodial parent according to the current guidelines is undoubtedly burdensome. For those with lower-paying jobs, it can be financially crippling. For example, a full-time, minimum wage employee earns approximately $1,200 in net income per month. Child support payable on a $1,200 monthly net income is $298 for one child, $433 for two children, $511 for three children, and so on. I’m not sure how these individuals are expected to afford housing, utilities, and food for themselves, much less their children, on a monthly disposable income of $902 or less.
This scenario is particularly frustrating when the custodial parent earns more income than the noncustodial parent. While the court is permitted to consider “other income or assets available to support the child . . . , including the income of the custodial parent” as a deviation factor, the current child support guidelines do not require the court to give any weight to the resources of the custodial parent. In practice, I find that Arkansas courts rarely consider the custodial parent’s income when setting child support. This has an inequitable result in families where the custodial parent has more than enough income to support their household without assistance from the other parent, while the noncustodial parent is barely scraping by. Noncustodial parents clearly have an obligation to support their children. However, I also think that noncustodial parents should have the same opportunity as the custodial parent to do activities with their children, even something as basic as going out to dinner or to the movies, without breaking the bank. So, while I don’t think a custodial parent’s higher income should obviate the noncustodial parent’s child support obligation, it should at least be considered.
Solution—Income Sharing Approach
Arkansas is one of only nine states in which child support is based on a percentage of the noncustodial parent’s income. Virtually every other state has adopted some form of income sharing approach. The modern trend in child support models is to formulate guidelines that take into account both parents’ income and the respective amount of time each parent spends with the child in the calculation. For example, New Jersey’s child support guidelines take into account both the percentage of time each parent spends with the children, as well as the income of both parties.
There is already such a great amount of discretion inherent in family law; calculation of child support should not add further uncertainly to the mix. Creating child support guidelines that encompass these two variables—the percentage of time spent with the child and the amount of income earned by the custodial parent—will help streamline the calculation of child support and prevent the ambiguity and divergent approaches to child support calculations currently in play.
 Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) & (a)(5).
 The solution I’ve encountered most frequently is an offset of the parties’ respective child support obligations, such that the parent who makes more money ends up paying an amount of child support that is proportionally reduced by the amount of child support he or she would have received from the other parent.
 Administrative Order No. 10 § VI.
 According to 2017 data published by the National Conference of State Legislatures.