This has very recently become a hotly contested issue in the Spokane County Superior Court. The formal name for a requested reduction in support for another child is a “deviation for a child by another relationship”. Typically, an individual who is being asked to pay child support has a child by a prior relationship. In some cases, the individual completes a divorce or parenting plan action and then subsequently has another child by a subsequent relationship and wants to modify child support. In past years, the Spokane County Judges typically granted the individual with the additional children a lowered child support amount (deviation). This was a fairly typical and common result.
The law that allows this deviation is found at RCW 26.09.175(1)(e). In pertinent part, this law provides that:
(iii) When considering a deviation from the standard calculation for children from other relationships, the court may consider only other children to whom the parent owes a duty of support. The court may consider court-ordered payments of child support for children from other relationships only to the extent that the support is actually paid.
(iv) When the court has determined that either or both parents have children from other relationships, deviations under this section shall be based on consideration of the total circumstances of both households. All child support obligations paid, received, and owed for all children shall be disclosed and considered. (Emphasis added.)
Whether to grant this deviation is entirely within the discretion of the judge. This means that the judge can decide to grant it or reject it and is not mandated to go either way. In other words, the judge will do what he/she considers fair. There are, of course, various guidelines that help the court determine what is fair. The statute (law) states under RCW 26.19.075(4) that “When reasons exist for deviation, the court shall exercise discretion in considering the extent to which the factors would affect the support obligation.” Thus it is very important for each side to stress to the Court whether it would be fair and equitable for there to be a deviation.
However, a recent Court of Appeals case sheds some new light on this request for a residential credit. In Parentage of O.A. J., No. 32579-2-11, 363 P.3d 1 (2015) the father sought a deviation based on a child of another relationship. However, he had no judicially recognizable order of support for this child. The Court ruled as follows: “We hold that to obtain a deviation from the child support guidelines due to paying for the support of children from other relationships, the parent must establish the existence of a judicially enforceable support obligation concerning those children.” The father’s request for a deviation was denied.
This case has become a game changer” for some judges. In Spokane County, some judges are now denying deviations for children from other relationships where in the past they used to grant it. For others judges, it has not changed their perspective and they are still granting the deviations. To say the least, the situation has become very grey and murky and the result varies from judge to judge at the moment.
The very best practice currently is for the person who is seeking the deviation, or who is defending against it, to stress to the judge why the deviation is or is not fair (equitable). This should be supported by detailed declarations and financial declarations. Tax returns and paystubs should be provided as well. It is critical to place major emphasis on providing the Court with the best financial picture possible.