Under Minn. Stat. § 518A.35, subd. 1(b), “the basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children and the combined parental income for determining child support of the parents.” This is the model for determining child support in Minnesota for children of divorced or separated parents.
WHAT IF THE CHILD LIVES SOMEONE OTHER THAN THE PARENTS?
But, under Minn. Stat. § 518A.35, subd. 1(c): If a child is not in the custody of either parent and a support order is sought against one or both parents, the basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children, and the parent’s individual parental income for determining child support, not the combined parental incomes for determining child support of the parents.
INDIVIDUAL vs. COMBINED INCOMES
In the case of children living with third parties, like grandparents, it is the parent’s individual income that determines their responsibility for supporting the child, when normally it is their combined incomes that determine how much support the child is entitled to.
But since the child support laws don’t define ‘custody’ it’s left to the courts to decide what the legislature meant by ‘custody’ when it this provision for children living outside of their parents’ custody. What does it mean for a parent not to have ‘custody’ of a child? This has broad implications for determining the extent of a parent’s support obligation.
WHAT IS MEANT BY ‘CUSTODY’?
Chapter 518A (Minnesota’s child support chapter) defines “[p]rimary physical custody” as “the parent who provides the primary residence for a child and is responsible for the majority of the day-to-day decisions concerning a child.” Minn. Stat. § 518A.26, subd. 17 (2016).
Custody is defined as the “care and control of a thing or person for inspection, preservation, or security.” Black’s Law Dictionary 467 (10th ed. 2009). Custody is also defined as the “control and care of a person or property, especially when granted by a court.” The American Heritage Dictionary 449 (5th ed. 2011).
In a recent decision, the Minnesota Court of Appeals deferred to the language of the underlying custody order for language describing the parents’ physical custody arrangement as controlling. Palmquist v. Devens, (Minn. Ct. App. 2017, citing Engfer v. Gen. Dynamics Advanced Info. Sys., Inc., 869 N.W.2d 295, 300 (Minn. 2015) (invoking the ‘plain meaning rule’ of statutory interpretation).
SIGNIFICANCE OF PHYSICAL CUSTODY
The label of ‘custody’ therefore has meaning in the context of a child custody determination between parents and third parties. It can mean the difference between being responsible for child support based on both parents’ combined incomes under Minn. Stat. § 518A.35, subd. 1(b), or the parent’s individual parental income under Minn. Stat. § 518A.35, subd. 1(c).
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