Louisiana Child Support Guidelines
• Sole custody – One parent is awarded full custody of the child or children
• Shared custody – Each parent has custody of the child or children for an equal amount of time. Sometimes there is no domiciliary parent named.
• Split custody – Each parent has sole custody of at least one child. Each parent owes a child support obligation to the other, the parent owing the greater amount of support pays the difference between the two amounts to the other parent.
• Custody to non-parent – Awarded when it has been deemed that giving custody to the parents would cause substantial harm to the child or children
• Interference with custody – A criminal statute imposed when the non-domiciliary parent takes the child or children away from the domiciliary parent
- The combined gross income of the parents is the starting point for calculating child support
- The next step is to determine the non-domiciliary spouse’s percentage of the total obligation
- The court can decide whether a parent is voluntarily unemployed or under employed
- Child support can be ordered even if there is no present income
- When deciding the child support award amount, the court can consider other sources of income and if re-married, benefits from the new spouse
- Unless it is not in the best interest of the child, Judges are required to use the child support guidelines
C.C. Art. 141. Child Support; Authority of Court states….
“In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support.
The court may award an interim allowance only when a demand for final support is pending.
Acts 1993, No. 261, eff. Jan. 1, 1994.
In principle the parents’ duties to support their children are equal, as reflected in this Article by the use of the plural term “parents.” See also LSA-C.C. art. 227 (1870); Castille v. Buck, 411 So. 2d 1156 (La. Ct. App. 1st Cir. 1982). Thus, an order of approximately equal physical custody to each parent might seem to obviate any monetary child support judgment against either. In reality this will seldom be the case, however, because of differences in the incomes and situations of the former spouses. Under LSA-R.S. 9:315.8(C), the share of the total cost of child support for which each parent is responsible is proportional to his percentage share of the total income of both parents.
Thus, one parent can be ordered to pay substantially more than the other when he can afford to do so, and such an order is necessary to afford the child the requisite standard of living. Such an order is particularly appropriate when sole, rather than joint custody is ordered. See comment (e), infra; Cox v. Cox, 447 So. 2d 578 (La. Ct. App. 1st Cir. 1984). Similarly, under LSA-R.S. 9:315.8(E), a court may adjust a child support award downward to reflect time spent by the child living in the home of the payor. Accord: Flournoy v. Flournoy, 546 So. 2d 617, 621 (La. Ct. App. 3d Cir. 1989)(under prior, jurisprudential, law). And under LSA-R.S. 9:337 (this revision), a court may, in or in conjunction with a joint custody order, make a special monetary award to one spouse in order to enable that spouse to maintain adequate housing for a child.
Under LSA-R.S. 9:315.2, 9:315.8, and 9:315.3, the factor of the parents’ ability to provide support, that is, their “combined adjusted gross income,” is the primary factor and the starting point in determining the “total child support obligation” and hence the amount of child support to be awarded. The measure of the child’s need is was usually stated as the sum necessary to afford the child the same standard of living as he had enjoyed prior to the divorce (E.g., Garcia v. Garcia, 438 So. 2d 256 (La. Ct. App. 4th Cir. 1983).), or as he would enjoy if he were living with the non-custodial parent (E.g., Ducote v. Ducote, 339 So. 2d 835 (La. 1976).), and the courts did not hesitate to apply that test when the means of the non-custodial parent permitted, even where doing so would result in an award clearly in excess of the child’s otherwise reasonable needs. Garcia v. Garcia, id.; Fellows v. Fellows, 267 So. 2d 572 (La. Ct. App. 3rd Cir. 1972).
Under LSA-R.S. 9:315(C)(6)(b) and 315.9, unemployment or underemployment of a parent will not diminish his portion of the parents’ total child support obligation below that which would be dictated by his “potential income”, except in specified circumstances. The courts have usually held that unemployment is not a ground for excusing a parent from paying child support unless the parent is shown also to be unemployable. E.g., Lopez v. Breaux, 462 So. 2d 1333 (La. Ct. App. 3d Cir. 1985); Skyes v. Skyes, 308 So. 2d 816 (La. Ct. App. 4th Cir. 1975). See also Siciliani v. Siciliani, 552 So. 2d 560, 562 (La. Ct. App. 2d Cir. 1989)(not error for trial court to look to father’s past income where his current and future income was uncertain and appeared much less than his established earning capacity).
A parent’s obligation of support is owed to his child, but the child is usually an unemancipated minor in divorce actions and therefore does not have the procedural capacity to sue. LSA-C.C.P. Art. 683 (1992). Thus, the usual practice has been for the parent who expects to be the child’s custodian or domiciliary parent to raise the child support issue in the divorce proceedings. Under Civil Code Article 105 (rev. 1990), either party may take this step without being appointed tutor of the child, and under Code of Civil Procedure Article 2592(8) either party may do so by summary process. See also former LSA-R.S. 9:309(C) (rev. 1992) (LSA-R.S. 9:315.22 in this revision). The usual procedural vehicle is a rule to show cause.
This accords with prior jurisprudence (see Dubroc v. Dubroc, 388 S0. 2d 377 (La. 1980).), and with LSA-R.S. 9:315.8(D), under which the child support award is to be made payable directly to the appropriate parent. When that is done, the payor of support may discharge his obligation only by making the required payments to that parent, absent an agreement on the part of the latter to permit payment to a third party on the parent’s behalf. E.g., Feazell v. Feazell, 445 So. 2d 143 (La. Ct. App. 3d Cir. 1984). To be enforceable, such an agreement must be in the best interest of the child, or at least not work to his detriment. See, e.g., Feazell v. Feazell, id.; Dubroc v. Dubroc, 388 So. 2d 377 (La. 1980). LSA R.S. 9:337 (this revision) governs allocation of the income tax dependency exemption between joint custodians of a child. It changes the law by allowing, rather than requiring, the court that awards custody to make that allocation. Cf. former LSA-C.C. art. 227 (1870); LSA-R.S. 9:291 (1992).”
- The child support award amount can be modified if the non-domiciliary parent under a joint custody plan has custody of the child or children for more than 73 days in the year
- The child support award amount can be modified if the child or children lives with each parent for ½ the year or if under a split custody agreement
C.C. Art. 142. Modification or Termination of Child Support Award states…
“An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become necessary.
Acts 1993, No. 261, §6, eff. Jan. 1, 1994; Acts 2001, No. 1082, § 2.
The change in circumstances referred to in this Article is a change that occurs after the initial award is made. See Bernhardt v. Bernhardt, 283 So. 2d 226 (La. 1973); Kuhn v. Kuhn, 420 So. 2d 1026 (La. Ct. App. 5th Cir. 1982); Howell v. Howell, 391 So. 2d 1304 (La. Ct. App. 4th Cir. 1980). As under the source statute, under this Article the stated criteria for changing child support are the same as those for changing spousal support. See Civil Code Article 114 (rev. 1993). However, a special substantive rule that is often applied in situations where a party seeks a modification or termination of a child support award has been that any “voluntary act by a parent that renders it difficult or impossible to perform the primary obligation of support and maintenance of his children” cannot be countenanced as a ground for release of the parent, in whole or in part, from that obligation. Laiche v. Laiche, 237 La. 298, 111 So. 2d 120, 122 (1959). Accord: Lustig v. Lustig, 552 So. 2d 516, 517 (La. Ct. App. 2d Cir. 1989); Toups v. Toups, 573 So. 2d 1164 (La. Ct. App. 5th Cir. 1991). See also LSA-R.S. 9:315(C)(6)(b) and 9:315.9 (effects of voluntary unemployment).
For examples of the types of voluntary acts that do not constitute a change of circumstances, see Boudreaux v. Boudreaux, 460 So. 2d 703 (La. Ct. App. 3d Cir. 1984)(incurring business debts); Dugas v. Dugas, 374 So. 2d 1278 (La. Ct. App. 1st Cir. 1984)(holding that general rule did not apply where father had contracted increased debts in question in a good faith effort to keep his business operating); Romagosa v. Romagosa, 464 So. 2d 1129 (La. Ct. App. 5th Cir. 1985)(payments suspended temporarily under supervision of court). This Article is not intended to change the prior jurisprudential approach.
This Article contemplates that judicial action will be necessary to modify or terminate child support awards in most cases. However, a payor of child support may lawfully cease making payments in a situation where LSA-R.S. 9:315.22(A) or (B)(this revision) applies. This Article, moreover, is not intended to change the prior jurisprudence recognizing another basis for extrajudicial modification of child support awards. That basis is the agreement of a custodial or domiciliary spouse “to suspend his right to compel the other party without custody to turn him in advance money necessary for the child’s maintenance” in a manner that “meets the requisites for a conventional obligation” and “fosters the continued support and upbringing of the child.” Dubroc v. Dubroc, 388 So. 2d 377, 380 (La. 1980). Accord: Lavergne v. Lavergne, 556 So. 2d 918, 921 (La. Ct. App. 3d Cir. 1990)(evidence did not establish that parties had “clearly agreed” to modification).
Under this Article, whenever a sole custody arrangement is changed to joint custody, the court may consider reducing the child support entitlement of the former sole custodian, provided that the change in the legal situation gives rise to an actual change of circumstances sufficient to justify doing so. See, LSA-R.S. 9:315.8€; Chaudoir v. Chaudoir, 454 So. 2d 895 (La. Ct. App. 3d Cir. 1984); Plemer v. Plemer, 436 So. 2d 1348 (La. Ct. App. 4th Cir. 1983). Compare former LSA-C.C. art. 131(A)(1)(c)(i): “An award of joint custody shall not eliminate the responsibility for child support.” Under LSA-R.S. 9:315.11 the enactment in 1989 of statutory child support guidelines did not constitute a change of circumstances for the purposes of changing child support.
The Louisiana Supreme Court has held that the change of circumstances test may be abrogated by agreement of a child’s parents, that is, the parents may by agreement empower the court to change the support award in the future without requiring the usual showing. Aldredge v. Aldredge, 477 So. 2d 73 (La. 1985). This Article is not intended to change that holding.”