In Illinois, a Noncustodial Parent May Be Entitled to Receive Child Support

Yes, you read that correctly. In Illinois, under certain circumstances, a noncustodial parent may be entitled to receive child support from the custodial parent.

 

In a divorce or parentage case, a court may either grant joint custody of the children to both parents, or grant sole custody to one parent. The term “custody” relates to the authority to make major life decisions for the children, such as education, religion, health care, and the like. Thus, even where there is joint custody, the court must still designate which parent will be the primary residential parent, and set a visitation or parenting time schedule for the other parent to have the minor children. Even in situations where the parents essentially share time equally with the children at a nearly 50-50 split, one parent will typically be deemed the primary residential parent. The residential parent is often called the physical custodian of the children. In order to make this blog readable, we will simply refer to the primary residential parent as the custodial parent.

 

In the overwhelming majority of cases, the custodial parent is entitled to child support from the noncustodial parent. Child support is governed by Section 5/505 of the Illinois Marriage and Dissolution of Marriage Act, which sets forth statutory guidelines for how much child support is to be paid out of the payor’s net income. The statute sets child support based upon the number of minor children involved. For one child, the payor is to pay 20 percent of his or her net income; for two children, 28 percent; for three children, 32 percent; for four children, 40 percent; for five children, 45 percent; for six or more children, 50 percent. See 750 ILCS 5/505(a)(1).

 

However, a custodial parent is not always entitled to child support from the noncustodial parent. In crafting the statute, the Illinois Legislature did not specify that only noncustodial parents are responsible for paying child support (as is the case in some states). In fact, the statute gives the courts discretion to “order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child” (Emphasis added) 750 ILCS 5/505(a).

 

In June, 2014, the Illinois Supreme Court addressed the issue of whether a custodial parent should pay child support to a noncustodial parent in In re the Marriage of Turk. In that case, the trial court ordered the custodial father to pay the noncustodial mother $600 per month in child support, as well as pay additional medical and dental expenses for the children. The father appealed, claiming that his status as the custodial parent argued precluded him from having to make any child support payments to the noncustodial mother. The Supreme Court rejected his argument.

 

The Turk Court noted that nothing in the statute “supports a view that custodial parents are categorically exempt from having to pay child support.” While there are four (4) subsections in the statute that address making sure that noncustodial parents who are obligated to pay child support fulfill their obligations, these subsections do not “suggest that the obligation to pay child support may never be extended to custodial parents.”

 

The Turk Court also pointed out that, under a certain custody judgment, a noncustodial parent may have a visitation schedule with the minor children that “rival[s] those of the custodial parent and at a commensurate cost.” In other words, when the children spend an approximately equal number of days living with each parent, each parent is providing about the same amount of food, shelter, and clothing for the children.

 

In such situations, the noncustodial parent could be ordered to pay child support without taking into account how that parent’s income, resources, and costs compare to those of the custodial parent. This can be a problem when the noncustodial parent has significantly less income and fewer financial resources, because in that situation, the “poorer” noncustodial parent would be precluded from getting any childcare assistance from the wealthier, custodial parent, simply due to his or her status as “noncustodial.” The Supreme Court stated:

“A child could well end up living commensurate with the parents’ income only half the time, when he or she was staying with the wealthier parent. If custodial parents were categorically exempt from child support obligations, the wealthier parent’s resources would be beyond the court’s consideration and reach even though the visitation schedule resulted in the child actually residing with the poorer parent for a substantial period each week. This could be detrimental to the child psychologically as well as economically, for the instability resulting from having to ‘live a dual life in order to conform to the differing socio-economic classes of his or her parents’ may cause the child to experience distress or other damaging emotional responses.”

As such, a noncustodial parent with fewer financial resources may be entitled to child support from the custodial parent, as it may be in the best interest of the minor children.

 

Not only is such an arrangement contemplated by the Illinois Marriage and Dissolution of Marriage Act, Illinois courts have long such recognized that the children’s best interests may be served by such an arrangement. See, e.g., Elble v. Elble, 100 Ill. App. 2d 221 (1968). Other states, such as Indiana and Pennsylvania, have also recognized the need for custodial parents to pay child support to noncustodial parents. See, e.g., Grant v. Hager, 868 N.E.2d 801, 804 (Ind. 2007); Colonna v. Colonna, 855 A.2d 648 (Pa. 2004).

 

While some may be concerned that allowing noncustodial parents to receive child support from custodial parents may “open the door to abuse by spouses who will use requests for modification of child support as a subterfuge for obtaining additional maintenance,” the Supreme Court noted that the statute clearly sets out the principles for setting and modifying child support and the courts should follow these rules, preventing possible abuse. As it now stands, because the legislature crafted the law the way it did, it would improper to read it such that a custodial parent is never required to pay child support. If and when the legislature decides to change the law, the courts will rule accordingly; but until that time, the courts will rule according to the existing words of the statute, adhering to what is believed to be the intent of the legislature: to serve the best interests of the child.