Grandparents and the Duty to Pay Child Support

The epidemic of drug abuse has resulted in more frequent awards of child custody to grandparents.  If one parent is unfit for custody due to drug abuse, that parent’s own parents may step into the gap.  If both parents are addicted and unable to fulfil their parental obligations, both sets of grandparents may share custody.  The details of the custody arrangements are often worked out by agreement.  If the parties cannot agree, courts may step in and award custody to a grandparent or grandparents over objection.

Grandparents with legal custody incur expenses associated with raising their grandchildren.  There may be child care and school tuition, book charges, and school fees and uniforms to pay for.  Of course, there are also the expenses of food, shelter, and transportation.  If the parent or parents who no longer have custody of their children do not voluntarily contribute to the cost of raising them, what can a grandparent do?  To answer this question, it is important to understand the duties imposed on parents and grandparent where the support of children is concerned.

Parents bear the primary burden of support -

Parents are obligated to support, maintain, and educate their children.  Louisiana Civil Code, Article 221.  Grandparents also have an obligation “to provide for their needy descendants”.  Louisiana Civil Code Article 237.  However, a parent’s legal duty to support his or her children is primary.  A grandparent’s duty to support his or her grandchildren is secondary.  In an old case, Levy v. Levy, a mother sued paternal grandparents seeking child support.  The trial judge ordered the paternal grandparents to pay the mother $600 a month.  The Court of Appeal reversed the trial judge.  In doing so, it pointed out that the father of the children had financial resources.  Since the mother had not proven that the father was completely without means to support his children, she had not borne her burden of proving that the grandparents should pay.  

If parents are unable to support their children, grandparents must do so -

In Rhodes v. Rhodes, another old case, the trial judge’s order that paternal grandparents pay child support to the mother was upheld on appeal.  The difference between Levy and Rhodes is that the father in Rhodes was totally disabled and could not work.  The mother was on sick leave.  The children’s basic needs could not be met except by requiring their paternal grandparents to pay support.  Because the people with the primary duty to support the children were unable to do so, the children’s grandparents were ordered to pay.

Grandparents do not owe the same amount of support as parents do –

A grandparent’s duty to support “descendants” such as grandchildren and great grandchildren is what is called an “alimentary” obligation.  It is much more limited in scope than the duty of a parent to support his or her children.  A person who owes an alimentary obligation is only required to pay for the very basic necessities of “food, clothing, shelter, and health care”.  

Louisiana’s child support tables take more expenses into consideration than the basic necessities.  Those tables do not govern a case involving a grandparent’s duty to support a grandchild.  In addition, the parents’ ability to contribute to a child’s upkeep, even if very limited, must be considered in setting the amount a grandparent must pay.  

A grandparent’s legal custody of a child does not subject him or her to child support –

Louisiana’s statutory child support laws apportion the duty to pay child support between parents based upon each parent’s income or earning capacity.  Very simply put, courts add together the parents’ monthly gross income, calculate what percentage of that total each parent earns, and then order each parent to pay his or her percentage of the child support set by the tables for their particular combined gross incomes.  The amount a parent owes to the other parent varies not only based on income but also upon the type of custody arrangement.

There is no legal authority requiring a grandparent with legal custody to pay a parent child support based on the statutory tables.  For example, a rich grandparent with joint custody of a grandchild with the child’s father should not be required to pay child support to the father using the tables.  As discussed above, this grandparent has a separate and distinct alimentary obligation to support the grandchild.  However, the in kind support the grandparent provides under a joint custody arrangement is probably enough to discharge it.

On the other hand, a grandparent with custody has standing to seek child support from both parents using the same tables.  

A grandparent with custody may sue for child support -

The basic, legal right to support belongs to the child.  A child, however, is not allowed to sue in his or her own name.  In order to enforce rights to child support, a child must be represented by an authorized adult.  A grandparent with legal custody is such an authorized adult.  

As a result, grandparents with legal custody may sue a grandchild’s parents for child support.  Each parent’s child support amount would be set pursuant to Louisiana’s child support statutes and tables.  In such a case, the grandparents’ incomes are not relevant to the child support calculations.

Louisiana’s child support statutes contain worksheets for child support calculations that take into consideration different types of custody arrangements. What child support worksheet should courts use when a grandparent asks for the child support from a grandchild’s parent? This question does not appear to have been addressed yet by any Louisiana court of appeal.  The general principles underlying the worksheets may provide some guidance.

The worksheets assume that a parent with physical custody of a child will spend money for the child’s benefit during their custodial period.  The parent without physical custody for a given period of time must contribute to those expenses based on his or her income.  A parent with sole custody earning a large monthly salary may be entitled to receive only a small payment from the other parent earning a pittance.  Conversely, a parent with sole custody and a small income may be entitled to receive a large sum as child support from the other parent.

If a father whose child is in the legal custody of a grandparent spends 10% of the month with the child in his physical possession and the mother spends 10%, the child is presumably with the custodial grandparent 80% of the time.  If the mother and father’s combined gross incomes produce a basic monthly child support obligation of $1,000, arguably the parents owe $800 in child support more or less.  If the mother’s income is only 20% of the father’s income, she might be obligated to pay 20% of $800 or $160.  The father might be obligated to pay the remaining $640.  This same method of calculation could be applied to the cost of health insurance benefits for the child, child care, and extraordinary expenses.

If you are a grandparent who has or is seeking legal custody of a grandchild and you need financial assistance from one or both parents, you should obtain legal advice.  The Cosenza Law Firm has experience in the area of grandparent rights.  Call the firm to make an appointment to discuss how best to achieve your goals.