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March 10, 2021 Feature

Introduction to Family Law Quarterly, Volume 54, Number 2

J. Thomas Oldham

This issue features three articles on recent developments in the ever-evolving field of family law. The topics include the new Restatement of Children and the Law, the 2020 U.S. Supreme Court decision on the Hague Child Abduction Convention, and varying state approaches to child support when parents share parenting time.

A working group of the American Law Institute has been, for a few years, creating the Restatement of Children and the Law. Professors Clare Huntington and Elizabeth S. Scott summarize the project in their article, The New Restatement of Children and the Law: Legal Childhood in the Twenty-First Century. (Professor Scott is the Chief Restatement Reporter and Professor Huntington is one of the Associate Reporters.)

They write that the core principle and policy goal of the project has been to endorse policies that promote what they refer to as “child well-being.” Among other things, the authors state that one goal of the project has been to integrate behavioral and biological research on child and adolescent development, as well as empirical research about the effectiveness of various policy interventions pertaining to children. Another overriding goal has been to recognize, and suggest ways to remediate, embedded racial and class biases that have impacted the regulation of children and their families in the United States.

The Restatement is organized in four Parts: “Children in Families,” “Children in Schools,” “Children in the Justice System,” and “Children in Society.” Readers of this journal may be particularly interested in Part II of the Huntington-Scott article, in which the authors discuss “The Restatement and Parental Rights.” In this Part, they address the Restatement view of parental rights, which includes a section on corporal punishment and a discussion of the parental right generally to make healthcare choices for a child. The authors also explain why the Restatement supports the recognition of rights of de facto parents.

Professor Ann Laquer Estin’s article, Where Is the Child at Home? Determining Habitual Residence after Monasky, addresses Monasky v. Taglieri, a recent U.S. Supreme Court decision on the Hague Child Abduction Convention. Pursuant to the Convention, if a child is wrongfully removed or retained away from his or her country of “habitual residence,” the child generally is to be returned to the country of habitual residence for any custody determination. In her article, Professor Estin explains that, for decades, the U.S. Supreme Court has provided no guidance about how U.S. courts should make the determination of a child’s “habitual residence.” As a result, various U.S. circuit courts proposed numerous and somewhat different approaches regarding how to make this determination. Professor Estin notes that the most commonly accepted approach was to determine the last country both parents agreed would be the place they would live indefinitely with their child. While a number of circuits applied this “parental intent” approach, Estin also describes other tests that were proposed.

In 2020, the U.S. Supreme Court finally issued an opinion addressing this issue. This 2020 case involved a couple who married in the United States and then moved to Italy. Eight weeks after their child was born in Italy in 2015, the mother returned to the United States with the child. Shortly thereafter, the father filed a petition in an Ohio district court for the return of his child under the Hague Convention. The mother argued that the child’s habitual residence was not Italy when the child returned to the United States because the parents had no mutual intent to raise the child in Italy. The district court ruled that the child’s habitual residence was Italy when the mother returned to the United States, and the U.S. Supreme Court affirmed.

Professor Estin emphasizes that in this case the Supreme Court opinion expressly rejects the parental intent test as the primary focus for determining habitual residence. Estin notes that the Court was concerned that such a standard could leave many infants without a habitual residence. The Court explained that the determination should be a “fact-driven inquiry” and referred to the appropriate approach as a “totality of the circumstances test.” Estin considers what types of facts might be relevant under this new approach, and she predicts how results in cases might change under this approach.

In the final article in this issue, The Relationship Between Child Support and Parenting Time, Dr. Jane Venohr and I analyze different approaches to child support when parents share parenting time. Child support guidelines were promulgated in the 1980s. At that time, drafting committees assumed that, in most instances, the greater-time parent would be the mother. It was also assumed that the father would have a higher income than the mother and that the father would have access to his children, at most, every other weekend.

During the past 30 years, a number of things have changed that could affect child support policy. More women have lucrative careers. More fathers spend substantial time with their children. Some parents have equal joint physical custody. In other instances, fathers are the greater-time parent.

In our article, we discuss to what extent, if any, child support should be reduced as the level of contact between the obligor parent and the children increases. In some states, the level of obligor contact with the children is merely a deviation factor allowing the court to adjust the amount of child support from the presumptive guideline amount. In contrast, we emphasize that in more than 30 states today, there is some presumptive formula for how the child support should be reduced based on the obligor parent’s level of contact with the child.

We describe a number of these different timesharing adjustment approaches. While by far the most common is some variation of what is called the “cross-credit” approach, there are numerous other approaches. These different approaches are described, and we include numerous graphs and charts that attempt to highlight the differences and similarities of the various approaches at different levels of contact between the obligor parent and the children.

Our article contains a chart comparing how much the child support obligation is reduced under different state timesharing formulas when the obligor parent has a higher income than the other parent and has the child 40% of all overnights. Another chart compares how these different state timesharing formulas would apply when there is equal joint physical custody. One calculation assumes equal parental incomes and the other assumes somewhat different parental incomes.

Our article highlights one important difference among the various approaches. In a small number of states, child support begins to be reduced with a relatively low level of contact between the child and the obligor parent, and then support is gradually reduced as the level of contact increases. In many others, support is not reduced until the level of contact is relatively substantial, and then the support is fairly rapidly reduced as the level of contact exceeds the threshold. Some have opined that this latter approach creates a “cliff effect” when the support amount can significantly change with relatively small levels of change in contact. One potentially undesirable effect of such a cliff effect is that the obligor parent may want to get the level of access to exceed the threshold, while the recipient parent may want the level of access to be below the threshold, and this can cause litigation over contact levels. Because of this concern, some states that have reviewed their guidelines recently have expressed a preference for approaches that do not have a cliff effect.

Finally, our article discusses how child support should be calculated when the greater-time parent has a higher income than the lesser-time parent. On the one hand, the continuity-of-expenditure philosophy would lead to a conclusion that the lesser-time parent should pay some support to the greater-time parent. We note, however, that some recent cases have affirmed child support awards from the greater-time parent to the lesser-time parent in this situation, particularly if the income of the greater-time parent is much higher than that of the other parent. These cases present very interesting questions about the goals and purposes of child support and child support guidelines.

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J. Thomas Oldham


J. Thomas Oldham is the John H. Freeman Professor of Law at the University of Houston Law Center, a member of the Family Law Quarterly Board of Editors, and the issue editor of this issue.