Court Will Give Payor the Benefit of the Doubt When it Comes to Child Support Modification and Overnights Actually Exercised

Florida's Child Support Guidelines formula takes into consideration the number of overnights each parent spends with the minor child(ren) when calculating a monthly child support payment.  For instance, a Father who is awarded a parenting schedule which gives him 90 overnights during the year will pay less than a Father who is only granted 35 overnights.

Importantly, if a payor of child support files a modification action asking to reduce his support, and the majority time-sharing parent claims, and even proves, that party does not utilize all of his designated overnights with the minor child, and should therefore not be entitled to credit for those ovenights in any new guideline calculation, the court will give the payor the benefit of the doubt, and assume in the future he will be exercising all of the overnights he was awarded, even if there is proof he has not exercised them in the past.  If the majority time-sharing parent wants to make a claim of unused overnights, that parent is required to file her own petition for modification, alleging that all of the overnights are not used.  *However, if it can be proven that the payor has not been exercising all of the overnights during the retroactive period, then the Court can deny him any downward modification since the filing of his petition for modfication, because this would be actual past non-overnight use, rather than a future assumpton of non-ovenright use. 

See Keeley v. Keeley, 899 So. 2d 387, 389 (Fla. 2nd DCA 2005) (stating "In the future, if the [payor] does not regularly exercise his overnight parenting time], the majority time-sharing parent may seek a modification f child support pursuant to Section 61.30(11)(c), retroactive to the date the [payor] first failed to regularly exercise [the appropriate amount of overnights].); Migliore v. Harris, 848 So. 2d 1250, 1252 (Fla. 4th DCA 2003) (stating "to apply the remedy before the adjustment is made is placing the cart before the horse").