We previously examined a case that considered the “primary care giver” role where a father was awarded primary custody after demonstrating that he personified that role. Changing custody from mother to father, in that instance, illustrates that designating a party as the primary care giver will not be reflexively applied as a matter of course (i.e. just because one parent has primary custody does not mean the other is not the main care giver), but must be shown through a factual analysis presented to the Court.
A doctrine similar to the “primary care giver,” but applicable to the support arena, is that of the “nurturing parent doctrine.” Like the role of primary care giver, the Court will not automatically apply or accept this argument and requires a careful factual analysis to determine whether a parent’s role as the “nurturing parent” justifies excusing them from having an earning capacity assessed for support purposes.
Generally speaking, if a party is out of work, the Court will apply an earning capacity that is used to calculate child and spousal support under the Support Guidelines. The nurturing parent doctrine is an exception to this rule by allowing a party to forego employment, and the application of an earning capacity, if they are staying home to care for the parties’ children.
One critical aspect of the doctrine, however, is that the parent asserting the argument must actually spend their time caring for the child, rather than utilize day care providers. An often cited case on this argument, Kelly v. Kelly, 633 A.2d 218 (Pa. Super. 1993), illustrates the premise that the doctrine is designed to prevent a non-working party from being punished for staying home and caring for children. However, this argument will not work, as the holdings of recent state court decisions continue to show, when the children have reached school age, child care is utilized, or in other situations in which the facts demonstrate that the stay-at-home parent is not fulfilling that “nurturing” role. In those instances, the Court will apply an earning capacity in their calculation of support and it will significantly change the child support award.
The specificity of facts will determine whether the nurturing parent doctrine is a legitimate reason to excuse a party from having some measure of income applied to them, or if they are merely looking to increase the disparity between their income and the obligor.