Ask Nancy: Perplexed

Dear Nancy:

My wife and I are getting divorced.  We have not been able to agree on much but we have agreed that we both want joint physical custody of our little children; i.e., 50% of the time with each of us.   My wife earns $12,000 per month and I earn $8,000 per month.   So who is the “custodial parent” for purposes of this Child Support Worksheet that we must complete?


Dear Perplexed:

For guidance in such a situation, we must look first to The Official Code of Georgia Annotated (O.C.G.A.) Section 19-6-15(a)(9).   In that Code section, the “custodial parent” is defined as “the parent with whom the child resides more than 50 percent of the time.” But “. . . where a child resides with both parents an equal amount of time, the court shall designate the custodial parent as the parent with the lesser support obligation and the other parent as the noncustodial parent.”  Conversely, the “noncustodial parent” is, according to O.C.G.A. Section 19-6-15(a)(14), the “. . . parent [with] the greater payment obligation for child support”.

According to these statutes, my dear Perplexed, in your personal situation, since your wife has a higher income and the higher child support obligation, she will be designated as the noncustodial parent for purposes of the child support award, and those same purposes, you will be the custodial parent.

Recent case law has followed.  In one particular case, a father asked the court to modify the parenting time schedule to reflect the parents’ decision to have a 50-50 custody arrangement.   Just like in your case, at the time of the lawsuit, the mother earned more money than the father so the mother was designated the “noncustodial parent” and ordered to pay child support to the father.

As always, there are still some questions unanswered but the parties can either work it out themselves or turn to the Court which is given a wide range of latitude in determining that final support obligation.

Best wishes,