Child Support for the Non-Custodial Parent? Yes, You Can!

Headshot of Emily Brenner

Attorney at Law MA, LPC, NCC

It is a common misconception that child support is only paid by the non-custodial parent to the custodial parent. In fact, non-custodial parents can be eligible for child support in Georgia. 

In the 1980 case of James v. James 246 Ga 233, 271 SE2d 151, the Court made the following finding:

“We find that a trial court, in the exercise of its discretion, may properly order a custodial parent to pay for the support of minor children while visiting with the non-custodial parent. In making decisions about child custody and child support, the trial court is charged with considering the welfare of the child. The court could conclude that the best interest of the child requires that money be provided the non-custodial parent to provide for a proper visitation.

Code Ann. § 30-207 provides: “In its final verdict or decree, the trier of fact shall specify in what amount and from which party the minor children are entitled to permanent support. The final verdict or decree shall further specify in what manner, how often, to whom, and until when such support shall be paid …” The legislature did not specify that only non-custodial parents are to pay child support.”

To understand how all this works, we have to define some terms that are often misunderstood, especially in this day and age, when joint custody is the trend. First, who is the custodial parent? Your parenting plan does not have to say which one of you is the custodial parent. The guidelines statute defines the term “custodial parent” in § 19–6–15(a) (9). See also § 19–6–15(a) (14) (defining “noncustodial parent”). The definition looks first and foremost to the amount of time the children spend with each parent. Its first sentence says, “Custodial parent means the parent with whom the child resides more than 50 percent of the time.” So, if your child spends more than half the time with you, then you are the custodial parent as a matter of law.

The second sentence of the “custodial parent” definition says, “Where a custodial parent has not been designated or 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.”

I have seen so many cases where a parent uses every trick in the book to try to get even one night more than the other under the false belief that becoming the custodial parent as a matter of law means no payment of child support. Well, it is just not necessarily so.

As all of you who have to pay child support know, there is a statutory child support calculator. After putting in the incomes of the parents, a computerized worksheet generates a presumptive amount of child support that is owed by both parents for the support of the children. In the 2013 case of Williamson v. Williamson When we look at it that way, the very idea that a custodial parent should not have to pay support to a non-custodial parent, where the best interest of the children should warrant it, defies logic! 293 Ga 721, 748 SE2d, 679, the court explains that a non-custodial parent (and only a non-custodial parent) can ask for deviations from the presumptive child support amount, and if the deviations are substantial enough, it could turn out that the custodial parent may have to pay child support to the non-custodial parent.

In the Williamson case, the father (custodial parent) argued that “the very idea of a custodial parent paying support to a non-custodial parent defies logic.” But the court reminds us that child support is meant in part “to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.” Just because a parent has the children less, does not mean that there is no obligation of support – the non-custodial parent still has to maintain a home for the children and provide for them when they are with him or her. One might argue that he housing where the children will visit is the same price if the children are there 30 percent of the time or 70 percent of the time! To the extent possible, the children should have a roughly similar standard of living at the home of each parent.

When we look at it that way, the very idea that a custodial parent should not have to pay support to a non-custodial parent, where the best interest of the children should warrant it, defies logic!

Brenner Law Group

The award-winning boutique family law firm providing trusted advocacy to Metro-Atlanta families for over 30 years.