Child Support Calculation Deviations
When ordering a deviation from the presumptive amount of child support established by the statutory guidelines, the court's order shall contain written findings of fact stating: O.C.G.A . 19-6-15(i)(2).
(1) the reasons for the deviation from the presumptive child support order;
(2) the amount of child support that would have been required under the child support guidelines;
(3) how the application of the child support guidelines would be unjust or inappropriate in the current case; and
(4) how the best interests of the child will be served by deviation from the presumptive child support order.
No deviation in the amount of the child support obligation shall be made that seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child, and to provide other basic necessities, as determined by the court. O.C.G.A. 19-6-15(i)(2).
Factors the court may consider in deviating from the child support guidelines include: O.C.G.A. 19-6-15(i)(4).
(1) time-related travel expenses due to substantial distance between the parties;
(2) extraordinary expenses other than health insurance premiums or work-related child care;
(3) extraordinary educational expenses; and
(4) special child-rearing expenses, such as food, clothing, hygiene, summer camps, lessons, travel, bands, clubs, athletics, and other activities intended to enhance the social or cultural development of a child.
Illustration:
A downward departure from the child support guidelines, by calculating a husband's child support obligation with respect to two children based on annual income of $75,000 rather than the husband's actual annual income of $118,560, was warranted where the husband had a $400 monthly child support obligation for another child, the husband's gross annual income substantially exceeded $75,000 threshold for downward departure, the husband was required to pay for accident and health insurance for the two children as well as one-half of those expenses not covered by insurance, and the husband would incur extraordinary expenses in traveling from Virginia to Georgia to exercise visitation. 277 Ga. 821 (2004).
The child support guidelines presume that when parents live separately, the child will typically reside primarily with the custodial parent and stay overnight with the noncustodial parent a minimum of every other weekend from Friday to Sunday, two weeks in the summer, and two weeks during holidays throughout the year, for a total of 80 days per year. The child support guidelines recognize that some families may have different situations and thus allow for an adjustment in the noncustodial parent's child support obligation, as appropriate and as specified within subsection (j) of the statute.[ FN5]
Statutes:
O.C.G.A. 19-6-15 was stricken and replaced in 2006. New O.C.G.A. 19-6-15(g) provides that the court or the jury may deviate from the presumptive amount of child support as set forth in subparagraph (i)(2)(K).
O.C.G.A. 19-6-15(i)(1)(A) was enacted in 2006 and provides that the amount of child support established by this section and the presumptive amount of child support are rebuttable and the court or the jury may deviate from the presumptive amount of child support in compliance with this subsection; that in deviating from the presumptive amount of child support, primary consideration must be given to the best interest of the child for whom support under this section is being determined; and that a nonparent custodian's expenses may be the basis for a deviation.
O.C.G.A. 19-6-15(i)(1)(B) was enacted in 2006 and provides that when ordering a deviation from the presumptive amount of child support, the court or the jury must consider all available income of the parents and must make written findings or special interrogatory findings that an amount of child support other than the amount calculated is reasonably necessary to provide for the needs of the child for whom child support is being determined and the order or special interrogatory must state: (i) the reasons for the deviation from the presumptive amount of child support; (ii) the amount of child support that would have been required under this section if the presumptive amount of child support had not been rebutted; and (iii) how, in its determination application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.
O.C.G.A. 19-6-15(i)(1)(C) was enacted in 2006 and provides that no deviation in the presumptive amount of child support may be made which seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child being supported by the order and to provide other basic necessities, as determined by the court or the jury.
O.C.G.A. 19-6-15(i)(2)(A) was enacted in 2006 and provides that for purposes of this subparagraph, parents are considered to be high-income parents if their combined adjusted income exceeds $30,000.00 per month; and that for high-income parents, the court will set the basic child support obligation at the highest amount allowed by the child support obligation table, but that the court or the jury may consider upward deviation to attain an appropriate award of child support for high-income parents which is consistent with the best interest of the child.
O.C.G.A. 19-6-15(i)(2)(B) was enacted in 2006 and provides that for purposes of this subparagraph, "low income person" means a parent whose annual gross income is at or below $1,850.00 per month.
O.C.G.A. 19-6-15(i)(2)(B)(i) was enacted in 2006 and provides that if the noncustodial parent is a low income person and requests a deviation on such basis, the court or the jury will determine if the noncustodial parent will be financially able to pay the child support order and maintain at least a minimum standard of living by calculating a self-support reserve as set forth in subsection (i)(2)(B)(ii), that the court or the jury will take into account all nonexcluded sources of income available to each parent and all reasonable expenses of each parent, ensuring that such expenses are actually paid by the parent and are clearly justified expenses; that the court or the jury will also consider the financial impact that a reduction in the amount of child support paid to the custodial parent would have on the custodial parent's household; and that under no circumstances will the amount of child support awarded to the custodial parent impair the ability of the custodial parent to maintain minimally adequate housing, food, and clothing and provide for other basic necessities for the child being supported by the court order.
O.C.G.A. 19-6-15(i)(2)(B)(ii) was enacted in 2006 and provides that to calculate the self-support reserve for the noncustodial parent, the court or the jury will deduct $900.00 from the noncustodial parent's adjusted income; that if the resulting amount is less than the noncustodial parent's pro rata responsibility of the presumptive amount of child support, the court or the jury may deviate from the amount of support provided for in the child support obligation table to the resulting amount; and that if the child support award amount would be less than $75.00, then the minimum child support order amount will be $75.00.
O.C.G.A. 19-6-15(i)(2)(B)(iii) was enacted in 2006 and provides that if the custodial parent is a low income person, the court or the jury will subtract $900.00 from the custodial parent's adjusted income; and that if the resulting amount is less than the custodial parent's pro rata responsibility of the presumptive amount of child support, the court or the jury may not deviate from the amount of support required to be paid by the noncustodial parent as provided for in the child support obligation table.
O.C.G.A. 19-6-15(i)(2)(B)(iv) was enacted in 2006 and provides that the self-support reserve calculation described in this subparagraph will apply only to the current child support amount and will not prohibit an additional amount being ordered to reduce an obligor's arrears.
O.C.G.A. 19-6-15(i)(2)(B)(v) was enacted in 2006 and provides that the court must make a written finding in its order or the jury must find by special interrogatory that the low income deviation from the presumptive amount of child support is clearly justified based upon the considerations and calculations described in this subparagraph.
O.C.G.A. 19-6-15(i)(2)(C) was enacted in 2006 and provides that if the court or the jury finds that either parent has vision or dental insurance available at a reasonable cost for the child, the court may deviate from the presumptive amount of child support for the cost of such insurance.
O.C.G.A. 19-6-15(i)(2)(D) was enacted in 2006 and provides that in accordance with O.C.G.A. 19-6-34, if the court or the jury finds that either parent has purchased life insurance on the life of either parent or the lives of both parents for the benefit of the child, the court may deviate from the presumptive amount of child support for the cost of such insurance by either adding or subtracting the amount of the premium.
O.C.G.A. 19-6-15(i)(2)(E) was enacted in 2006 and provides that if the court or the jury finds that one of the parents is entitled to the child and dependent care tax credit, the court or the jury may deviate from the presumptive amount of child support in consideration of such credit.
O.C.G.A. 19-6-15(i)(2)(F) was enacted in 2006 and provides that if court ordered visitation related travel expenses are substantial due to the distance between the parents, the court may order the allocation of such costs or the jury may by a finding in its special interrogatory allocate such costs by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move.
O.C.G.A. 19-6-15(i)(2)(G) was enacted in 2006 and provides that actual payments of alimony will not be considered as a deduction from gross income but may be considered as a deviation from the presumptive amount of child support; and that if the court or the jury considers the actual payment of alimony, the court must make a written finding of such consideration or the jury in its special interrogatory of such consideration as a basis for deviation from the presumptive amount of child support.
O.C.G.A. 19-6-15(i)(2)(H) was enacted in 2006 and provides that if the noncustodial parent is providing shelter, such as paying the mortgage of the home, or has provided a home at no cost to the custodial parent in which the child resides, the court or the jury may allocate such costs or an amount equivalent to such costs by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents and the best interest of the child.
O.C.G.A. 19-6-15(i)(2)(I) was enacted in 2006 and provides that in cases where the child is in the legal custody of the department of human resources, the child protection or foster care agency of another state or territory, or any other child-caring entity, public or private, the court or the jury may consider a deviation from the presumptive amount of child support if the deviation will assist in accomplishing a permanency plan or foster care plan for the child that has a goal of returning the child to the parent or parents and the parent's need to establish an adequate household or to otherwise adequately prepare herself or himself for the return of the child clearly justifies a deviation for this purpose.
O.C.G.A. 19-6-15(i)(2)(J) was enacted in 2006 and provides that the child support obligation table includes average child rearing expenditures for families given the parents' combined adjusted income and number of children; that extraordinary expenses are in excess of average amounts estimated in the child support obligation table and are highly variable among families; that extraordinary expenses will be considered on a case-by-case basis in the calculation of support and may form the basis for deviation from the presumptive amount of child support so that the actual amount of the expense is considered in the calculation of the final child support order for only those families actually incurring the expense; and that extraordinary expenses will be prorated between the parents.
O.C.G.A. 19-6-15(i)(2)(J)(1) was enacted in 2006 and provides that extraordinary educational expenses may be a basis for deviation from the presumptive amount of child support; that extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and secondary schooling that are appropriate to the parent's financial abilities and to the lifestyle of the child if the parents and the child were living together; that in determining the amount of deviation for extraordinary educational expenses, scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child will be considered; and that if a deviation is allowed for extraordinary educational expenses, a monthly average of the extraordinary educational expenses will be based on evidence of prior or anticipated expenses and entered on the Child Support Schedule E—Deviations.
O.C.G.A. 19-6-15(i)(2)(J)(ii) was enacted in 2006 and provides that special expenses incurred for child rearing, including, but not limited to, quantifiable expense variations related to the food, clothing, and hygiene costs of children at different age levels, may be a basis for a deviation from the presumptive amount of child support; that such expenses include, but are not limited to, summer camp, music or art lessons, travel, school sponsored extracurricular activities, such as band, clubs, and athletics and other activities intended to enhance the athletic, social, or cultural development of a child but not otherwise required to be used in calculating the presumptive amount of child support as are health insurance premiums and work related child care costs; that a portion of the basic child support obligation is intended to cover average amounts of special expenses incurred in the rearing of a child; and that in order to determine if a deviation for special expenses is warranted, the court or the jury will consider the full amount of the special expenses as described in this division and when these special expenses exceed 7 percent of the basic child support obligation, then the additional amount of special expenses will be considered as a deviation to cover the full amount of the special expenses.
O.C.G.A. 19-6-15(i)(2)(J)(iii) was enacted in 2006 and provides that in instances of extreme economic hardship involving extraordinary medical expenses not covered by insurance, the court or the jury may consider a deviation from the presumptive amount of child support for extraordinary medical expenses; that such expenses may include, but are not limited to, extraordinary medical expenses of the child, a parent, or a child of a parent's current family. provided that any such deviation does not act to leave a child unsupported and may be ordered for a specific period of time measured in months; and that when extraordinary medical expenses are claimed, the court or the jury will consider the resources available for meeting such needs, including sources available from agencies and other adults.
O.C.G.A. 19-6-15(i)(2)(K)(i) was enacted in 2006 and provides that the child support obligation table is based upon expenditures for a child in intact households; and that the court may order or the jury may find by special interrogatory a deviation from the presumptive amount of child support when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time or when the child resides with both parents equally.
O.C.G.A. 19-6-15(i)(2)(K)(ii) was enacted in 2006 and provides that if the court or the jury determines that a parenting time deviation is applicable, then such deviation will be applied to the noncustodial parent's basic child support obligation.
O.C.G.A. 19-6-15(i)(2)(K)(iii) was enacted in 2006 and provides that in accordance with O.C.G.A. 19-11-8(d), if any action or claim for parenting time is brought under this subparagraph, it will be an action or claim solely between the custodial parent and the noncustodial parent, and not any third parties, including the child support enforcement agency.
O.C.G.A. 19-6-15(i)(3) was enacted in 2006 and provides that deviation from the presumptive amount of child support may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child; and that if the circumstances which supported the deviation cease to exist, the final child support order may be modified as set forth in subsection (k) to eliminate the deviation.
O.C.G.A. 19-6-34(b) was amended in 2006 to provide that the amount of the premium for such life insurance may be considered as a deviation to the presumptive amount of child support pursuant to the provisions of O.C.G.A. 19-6-15, provided that the court must review the amount of the premium for reasonableness under the circumstances of the case and the best interest of the child.
Some portions (c) 2006 Thomson/West
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