A child custody or parenting time order is irrelevant to the analysis of whether a parent’s child support obligation may continue under a Uniform Child Support Order after the child reaches age eighteen; rather, where the child intends to reside is the relevant question for the court’s determination, said the Michigan Court of Appeals in Weaver v Giffels
, No. 327844.
In this child support dispute, as a part of their divorce judgment, the parties were under a child support order and a parenting time order. The child support order required the defendant to pay $2,000 monthly in child support for the support of the parties’ two children. The parenting time order provided that the children would reside primarily with the plaintiff while defendant would have parenting time amounting to three days per week. When one of the children reached age eighteen while still in high school, the defendant moved for termination of his support obligation under MCL 552.605b with respect to that child, asserting the child’s birthday as the basis for termination. MCL 552.605b provides that absent agreement otherwise, a child support obligation ends upon a child’s eighteenth birthday, unless the child is still attending high school full-time and is “residing on a full-time basis with the child support recipient.” The defendant asserted that the exception in this section was inapplicable because the parties shared physical custody under the parenting time order, thereby precluding the child from residing on a “full-time basis” with the plaintiff. A family division referee agreed with the defendant and submitted a recommended order granting defendant’s motion. The referee reasoned that the term “full-time basis” means the child must be living full-time with the recipient, not simply the amount of time allotted under the custody order.
The circuit court, however, denied defendant’s motion to terminate his support obligation. The court held that child support for a child over eighteen would hardly ever be ordered under the referee’s interpretation. Instead, the court determined that “full-time basis” under MCL 552.605b meant that the child must still be residing with the support recipient in full compliance with the child custody or parenting time order.
On appeal, the Michigan Court of Appeals rejected the circuit court’s interpretation of the statute. It determined that the circuit court’s focus on the custody order was misplaced because once the child reached age eighteen, she was no longer subject to the custody order under the law. Relying on the dictionary definition of “full-time,” the appellate court concluded that for support to continue for a child over eighteen, the child must reside only with the support recipient while completing high school. The appellate court further held that in determining whether the child “resided” with the plaintiff, the circuit court must interpret the term “reside” as including not only a physical presence in a place, but an accompanying intent of choosing that place as a permanent residence. Still, it was quite possible that the child spent three days with the defendant while maintaining the intent of permanently residing with the plaintiff. Because this issue was not decided, the Michigan Court of Appeals reversed and remanded the case for further proceedings.
The Honorable Judge Jane M. Beckering concurred
, however, only in the result the appellate court reached.