Introduction

Like many marriages, Jon and Sarah Cryer’s ended in divorce. Jon and Sarah are both actors, but their careers are remarkably divergent. Jon, a star of the sitcom Two and a Half Men, makes hundreds of thousands of dollars a month; Sarah has not worked since 2005. For the first five years after their divorce in 2004, Jon and Sarah’s family arrangement was rather traditional—the higher-income, noncustodial parent paid monthly support to the lower-income, custodial parent. Sarah had custody of their son approximately 65 percent of the time, and Jon had custody the remainder. Jon paid $10,000 each month in child support. After a 2009 dependency action brought by the Los Angeles County Department of Children and Family Services, Jon was awarded nearly complete custody— approximately 96 percent of the time with their son. Jon then sought to reduce his monthly child-support obligation to zero. 

Mara Rubin and Anthony Della Salla were never married, but, over the course of their nine-year relationship, they had one son. After separating, they jointly provided for their son’s custody and support informally. Eventually, however, they sought and received a judicial determination of their son’s custody and support. Anthony was awarded primary physical custody, receiving 56 percent of the overnights, and the two parents were awarded parallel legal custody. Mara, unemployed, petitioned the court for an order requiring Anthony, a millionaire, to pay her child support pursuant to the substantial amount of parenting time that she had accrued, arguing that any other result would be unjust.

The results in these cases might seem surprising. Even after Sarah Cryer’s custody of her son was reduced to 4 percent, she continued to receive child support to almost the same extent: $8,000 each month.4 The court determined that payment from Jon to Sarah of only the statutorily mandated $1,141 per month would be “unjust and inappropriate.” Mara Rubin was less fortunate. In addressing her petition, the New York Appellate Division confirmed that despite substantial parenting time, legal custody, and a vast income disparity, a custodial6 parent could never be ordered to pay child support to a noncustodial parent.

These particular results represent extremes. More jurisdictions would allow Mara to recover than Sarah. Even that fact, however, pushes against the intuition that child support should be an obligation of a parent who does not spend time (and thus money) raising his or her children. And indeed, in every state, a noncustodial Anthony Della Salla or Jon Cryer could be ordered to pay child support.

This Comment considers three related issues: whether a custodial parent can be ordered to pay child support, when such an arrangement might make sense, and how a legal rule should be crafted to produce a result that allows for noncustodial parents to receive child support. Despite a contrary popular understanding, state courts have allowed for this arrangement for decades, yet scholarship has assumed that the noncustodial parent always pays support. The issue whether noncustodial parents can receive child-support payments is not particularly aberrational—three state appellate courts considered this issue in 2013. This Comment argues that the prevailing understanding—that there are circumstances that warrant this arrangement—is correct, but states must be careful to avoid creating rules that strengthen the incentives for parents to engage in strategic bargaining that can result in net transfers of wealth away from the child.

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