On April 29th Madam Justice Newman of the Pennsylvania Supreme Court set a precedent that allows trial courts to order parents with primary custody to pay child support to parents with partial custody. (Colonna) The determining factor is disparity between the parents' incomes. (Justice Nigro concurred. Justices Cappy and Castille dissented. Justices Eakin and Lamb did not participate.)

The case involves four children in the primary care (primary custody) of their father during the school year and in the primary care (partial custody) of their mother during summers. The father's income on record is $193,560.00 per year and the mother's is $55,284.00. The mother claimed "reasonable needs" of $338,496.00 per year, $253,277.00 attributable to the children.

Madam Justice Newman recognized that "a parent incurs certain fixed costs related to providing the children with a home in which to exercise his or her period of partial custody. Costs such as a mortgage or rent payments, insurance, utilities, etc. remain the same whether the children are in a parent's custody or not."

Upon divorce, the couple agreed temporarily to share custody of the children while the father's petition for primary custody was under consideration. The father was ordered to pay $73,584.00 per year in child support, based on a higher income reported a year earlier. When primary custody was awarded to the father, he did not request child support from the mother. But the mother argued that she should continue the same lifestyle that she had before the change, affordable only if she received child support.

The woman who acted as law master in the case empathized with the mother. In the words of the court, "She was troubled by the disparities in the parties' income and the fact that Mother has certain fixed expenses incident to her alternating weekend and summer custody." Madam Justice Newman was also "troubled by the disparity in the parties' incomes" and "concerned that the refusal to consider this as a factor when fashioning a support order may be contrary to the best interests of the child. We must always be mindful of the fact that the support laws act in conjunction with our custody laws."

Madam Justice Newman agreed with the law master that a Melzer calculation should be applied. The Melzer calculation was presented by the Pennsylvania Supreme Court in 1984, prior to federal child support reform, in Melzer v. Witsberger (480 A.2d 991). The child support calculation is applied to each parent relative to the time children spend in each household. Applying the current Pennsylvania child support guideline both ways in this particular case results in a net obligation by the primary custody parent to the partial custody parent.

Roger F. Gay