In child custody cases where the parent awarded primary custody of the children has significantly greater resources than the non-custodial parent, can a court order the custodial parent to pay child support to the non-custodial parent? Late last week in In re Marriage of Turk, a unanimous Illinois Supreme Court held that the answer is “yes.”
The parents in Turk divorced in 2005. According to the judgment, while the parties had joint custody of their two children, the children would reside with the mother. The father was required to pay maintenance and child support for 42 months, as well as to provide medical insurance and cover half of their out-of-pocket medical and dental costs.
Five years later, the court granted temporary physical custody of the children to the father, limiting the mother’s visitation, and made a one-time reduction in child support. Shortly after, the father petitioned to end his child support obligation entirely, but that petition ultimately was resolved in an agreed order providing that the father should continue to pay a monthly sum in child support.
Intermittent litigation continued between the parents for the next two years. In 2012, the Circuit Court entered an agreed order awarding the father sole physical custody of the two children. The order provided limited visitation with the older son and nearly equal time with the younger son. In a separate order, the Court ordered the father to pay the mother continuing child support as well as covering out-of-pocket medical and dental expenses. The court based its order on a finding that the father’s income substantially exceeded the mother’s.
The father appealed, arguing that the Circuit Court lacked any authority under the Marriage and Dissolution of Marriage Act to order a custodial parent to pay child support to a non-custodial parent. The Appellate Court disagreed, but ultimately reversed and remanded for recalculation of the amount of the child support payment.
In an opinion by Justice Karmeier, the Supreme Court affirmed the Appellate Court in most respects. The Court concluded that Section 505(a) of the Act conferred authority on court 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.” 750 ILCS 5/505(a). The Court noted in support of its conclusion the statutory factors by which a court judges when it should deviate from the statutory formula for calculating support, noting that nothing in the factors made the simple assignment of custody dispositive. At oral argument, counsel for the father emphasized that many sections following Section 505 refer expressly to non-custodial parents, but the Court concluded that these provisions were merely intended to address the “heightened difficulties in insuring that noncustodial parents fulfill their child support obligations.”
The Court pointed out that an absolute rule barring an award of child support to a non-custodial parent might frustrate the aims of the statute in cases where the non-custodial parent had substantially less income. The statute is intended to protect the right of children to be supported by their parents in a way commensurate with their income. But where resources were seriously imbalanced, a noncustodial parent might well be unable to provide for a child during visitation periods at anything approaching the same level without an award of support.
The Court reversed only with respect to one relatively small part of the award – the allocation of 100% of the children’s out-of-pocket medical and dental expenses to the father. The Court concluded that such amounts could not be addressed in the abstract, but had to be allocated pursuant to the same formula, accounting for the parents’ income, as the children’s other needs.
Justice Theis specially concurred, with Justice Thomas joining her opinion. Justice Theis concluded that although nothing in the statute barred an award of support to a non-custodial parent, the Circuit Court had erred by simply applying the child support guidelines to the income of the wealthier parent in order to calculate the amount due. Such a procedure ignored the statutory command that support is a duty of both parents, regardless of income. Justice Theis concluded that the Circuit Court should have first determined, using the guidelines, the appropriate amount of support which the non-custodial mother should have paid to the father. Then, the Court should consider whether a deviation downward was appropriate, keeping the best interests of the children as the foremost consideration, with the Court free to conclude that the father should more appropriately pay the mother.