Rule 90.3. Child Support Awards

(a) Guidelines—Primary Physical Custody. A child

support award in a case in which one parent is awarded

primary physical custody as defined by paragraph (f) will be

calculated as an amount equal to the adjusted annual income of

the non-custodial parent multiplied by a percentage specified

in subparagraph (a)(2).

(1) Adjusted Annual Income. Adjusted annual income as

used in this rule means the parent’s total income from all

sources minus:

(A) mandatory deductions such as:

(i) federal, state, and local income tax,

(ii) Social Security tax or the equivalent contribution to

an alternate plan established by a public employer, and self-

employment tax,

(iii) medicare tax,

(iv) mandatory union dues,

(v) mandatory contributions to a retirement or pension

plan;

(B) voluntary contributions to a retirement or pension

plan or account in which the earnings are tax-free or tax-

deferred, except that the total amount of these voluntary

contributions plus any mandatory contributions under item

(a)(1)(A)(v) above may not exceed 7.5% of the parent’s total

income;

(C) child or spousal support from different relationships

for

(i) prior children that is required by other court or

administrative proceedings; and

(ii) former spouses that is required by other court or

administrative proceedings and actually paid;

(D) in-kind support for prior children in the primary or

shared physical custody of the parent that is:

ed 7.5% of the parent’s total

income;

(C) child or spousal support from different relationships

for

(i) prior children that is required by other court or

administrative proceedings; and

(ii) former spouses that is required by other court or

administrative proceedings and actually paid;

(D) in-kind support for prior children in the primary or

shared physical custody of the parent that is:

(i) for primary custody, the amount calculated under

subparagraph (a)(2); or

(ii) for shared custody, the amount calculated under

subparagraph (a)(2), multiplied by the percentage of time that

parent has physical custody of the prior children; however, the

total amount deducted under this sub-item and any deduction

for the same children under item (a)(1)(C) may not exceed the

amount calculated under subparagraph (a)(2);

(E) work-related child care expenses for the children who

are the subject of the child support order; and

(F) health insurance premiums paid for health insurance

coverage, including dental and vision coverage, by the parent

and for the parent only, except that the total amount of these

premiums may not exceed 10% of the parent’s total income.

(G) life insurance premiums paid for life insurance

policies for which the children of the parties or the individual

to whom the support is owed is the beneficiary, whether or not

the life insurance is court-ordered, except the total allowable

deductible amount of these premiums may not exceed $1,200

annually. If the policy lists beneficiaries in addition to the

children covered by the child support order or the individual to

whom the support is owed, the allowable deduction is

determined by allocating the total cost of the premiums pro

rata among all beneficiaries.

the life insurance is court-ordered, except the total allowable

deductible amount of these premiums may not exceed $1,200

annually. If the policy lists beneficiaries in addition to the

children covered by the child support order or the individual to

whom the support is owed, the allowable deduction is

determined by allocating the total cost of the premiums pro

rata among all beneficiaries.

(2) Percentage. The percentage by which the non-

custodial parent’s adjusted income must be multiplied in order

to calculate the child support award is:

(A) 20% (.20) for one child;

(B) 27% (.27) for two children;

(C) 33% (.33) for three children; and

(D) an extra 3% (.03) for each additional child.

(3) Extended Visitation Credit. The court may allow the

obligor parent to reduce child support payments by up to 75%

for any period in which the obligor parent has extended

visitation of over 27 consecutive days. The order must specify

the amount of the reduction which is allowable if the extended

visitation is exercised.

(4) Potential Income. The court may calculate child

support based on a determination of the potential income of a

parent who voluntarily and unreasonably is unemployed or

underemployed.

(A) A parent may be voluntarily and unreasonably

unemployed or underemployed when the parent’s current

situation and earnings reflect the parent’s decision to not work

or to earn less than the parent is capable of earning.

(B) The court shall consider the totality of

circumstances to determine whether it is appropriate to impute

potential income to a parent, including the following factors:

(A) A parent may be voluntarily and unreasonably

unemployed or underemployed when the parent’s current

situation and earnings reflect the parent’s decision to not work

or to earn less than the parent is capable of earning.

(B) The court shall consider the totality of

circumstances to determine whether it is appropriate to impute

potential income to a parent, including the following factors:

(i) whether the parent’s reduced income is temporary;

(ii) whether the parent’s income is a result of

economic factors or purely personal choices; and

(iii) the extent to which the children will ultimately

benefit from the parent’s decision to not work or to earn less

than the parent is capable of earning.

(C) If the court determines it is appropriate to impute

potential income to a parent, the court shall consider the

following factors to determine what amount of income should

be imputed:

(i) the parent's assets;

(ii) the parent’s standard of living, including

residence;

(iii) the parent’s literacy, employment and earning

history, job skills, and educational attainment;

(iv) the parent’s age and health;

(v) whether the parent has a criminal record or other

employment barriers;

(vi) the parent’s record of seeking work, the local job

market, and the availability of employers willing to hire the

parent;

(vii) prevailing earnings levels in the local

community; and

(viii) any other relevant factor.

(D) The court also may impute potential income for

nonincome or low income producing assets.

(E) A determination of potential income may not be

made for a parent who is physically or mentally incapacitated,

or who is caring for a child under two years of age to whom

the parents owe a joint legal responsibility.

earnings levels in the local

community; and

(viii) any other relevant factor.

(D) The court also may impute potential income for

nonincome or low income producing assets.

(E) A determination of potential income may not be

made for a parent who is physically or mentally incapacitated,

or who is caring for a child under two years of age to whom

the parents owe a joint legal responsibility.

(5) Low-Income Adjustment. For a parent who has a total

annual income of $30,000 or less, the parent’s adjusted annual

income from all sources is the lesser of the following amounts:

(A) the amount calculated under items (a)(1)(A) –

(G) above; or

(B) the parent’s total income from all sources minus

$7,500.

(b) Shared, Divided, and Hybrid Physical Custody.

(1) Shared Physical Custody. A child support award in a

case in which the parents are awarded shared physical custody

as defined by paragraph (f) will be calculated by:

(A) Calculating the annual amount each parent would pay

to the other parent under paragraph (a) assuming the other

parent had primary custody. In this calculation the income

limit in subparagraph (c)(2) and the minimum support amount

in subparagraph (c)(3) apply.

(B) Multiplying this amount for each parent by the

percentage of time the other parent will have physical custody

of the children. However, if the court finds that the percentage

of time each parent will have physical custody will not

accurately reflect the ratio of funds each parent will directly

spend on supporting the children, the court shall vary this

percentage to reflect its findings.

(C) The parent with the larger figure calculated in the

preceding subparagraph is the obligor parent and the annual

award is equal to the difference between the two figures

multiplied by 1.5. However, if this figure is higher than the

amount of support which would be calculated under paragraph

y

spend on supporting the children, the court shall vary this

percentage to reflect its findings.

(C) The parent with the larger figure calculated in the

preceding subparagraph is the obligor parent and the annual

award is equal to the difference between the two figures

multiplied by 1.5. However, if this figure is higher than the

amount of support which would be calculated under paragraph

(a) assuming primary custody, the annual support is the

amount calculated under paragraph (a).

(D) The child support award is to be paid in 12 equal

monthly installments except as follows:

(i) if shared custody is based on the obligor parent

having physical custody for periods of 30 consecutive days or

more, the total annual award may be paid in equal installments

over those months in which the obligor parent does not have

physical custody; or

(ii) if the obligor parent’s income is seasonal, the court

may order unequal monthly support payments as provided in

subparagraph (c)(5).

(E) The child support order must state that failure to

exercise sufficient physical custody to qualify for shared

physical custody under this rule is grounds for modification of

the child support order. Denial of visitation by the custodial

parent is not cause to increase child support.

(2) Divided Physical Custody. A child support award in a

case in which the parents have divided custody is calculated,

first, by determining what each parent would owe the other for

children in that parent’s primary physical custody under

paragraph (a), taking into account the income limit in

subparagraph (c)(2) and the minimum support amount in

subparagraph (c)(3), and offsetting those amounts. Second,

because divided custody is an “unusual circumstance,” the

court must consider whether this support amount should be

varied under subparagraph (c)(1).

owe the other for

children in that parent’s primary physical custody under

paragraph (a), taking into account the income limit in

subparagraph (c)(2) and the minimum support amount in

subparagraph (c)(3), and offsetting those amounts. Second,

because divided custody is an “unusual circumstance,” the

court must consider whether this support amount should be

varied under subparagraph (c)(1).

(3) Hybrid Physical Custody. A child support award in a

case in which the parents have hybrid custody is calculated by

applying paragraph (a), taking into account the income limit in

subparagraph (c)(2) and the minimum support amount in

subparagraph (c)(3), to determine support for children in the

primary physical custody of each parent and applying

subparagraph (b)(1) to determine support for children in the

shared physical custody of the parents. In these calculations,

the sub-paragraph (a)(2) percentages must be adjusted pro rata

based on the number of children in each type of custody. These

results are then combined to determine the net obligation.

Finally, because hybrid custody is an “unusual circumstance,”

the court must consider whether this support amount should be

varied under subparagraph (c)(1).

(c) Exceptions.

(1) The court may vary the child support award as

calculated under the other provisions of this rule for good

cause upon proof by clear and convincing evidence that

manifest injustice would result if the support award were not

varied. The court must specify in writing the reason for the

variation, the amount of support which would have been

required but for the variation, and the estimated value of any

property conveyed instead of support calculated under the

other provisions of this rule. Good cause may include a finding

that unusual circumstances exist which require variation of the

award in order to award an amount of support which is just and

proper for the parties to contribute toward the nurture and

education of their children

red but for the variation, and the estimated value of any

property conveyed instead of support calculated under the

other provisions of this rule. Good cause may include a finding

that unusual circumstances exist which require variation of the

award in order to award an amount of support which is just and

proper for the parties to contribute toward the nurture and

education of their children. The court shall consider the

custodial parent’s income in this determination.

(2) Paragraph (a) does not apply to the extent that the

parent has an adjusted annual income of over $138,000. In

such a case, the court may make an additional award only if it

is just and proper, taking into account the needs of the

children, the standard of living of the children and the extent to

which that standard should reflect the supporting parent’s

ability to pay.

(3) The minimum child support amount that may be

ordered is $50 per month ($600 per year) except as provided in

subparagraph (a)(3) and paragraph (b).

(4) In addition to ordering a parent to pay child support

as calculated under this rule, the court may, in appropriate

circumstances, order one or more grandparents of a child to

pay child support to an appropriate person in an amount

determined by the court to serve the best interests of the child.

However, the amount may not exceed the smaller of (A) a

proportionate share of the amount required to provide care in a

supervised setting to the grandchild, as determined by the

court, or (B) the amount that would have been awarded if the

child’s parents had the incomes of the child’s grandparents and

paragraphs (a) and (b) were applied. An order under this

paragraph may be issued only with respect to a child whose

parents are both minors, and the order terminates when either

parent becomes 18 years of age

supervised setting to the grandchild, as determined by the

court, or (B) the amount that would have been awarded if the

child’s parents had the incomes of the child’s grandparents and

paragraphs (a) and (b) were applied. An order under this

paragraph may be issued only with respect to a child whose

parents are both minors, and the order terminates when either

parent becomes 18 years of age. The court must specify in

writing the reasons why it considers it to be appropriate to

order a grandparent to pay child support under this paragraph

and the factors considered in setting the amount of the child

support award. In this paragraph, “grandparent” means the

natural or adoptive parent of the minor parent.

(5) If the non-custodial parent’s income is seasonal, the

court may order that the annual support amount be paid in

unequal monthly payments, with higher payments during the

months the parent expects to receive higher income and lower

payments in other months. The court should not make such an

order unless (a) it finds that the burden of budgeting for

periods of unequal income should be placed on the obligee

rather than the obligor and (b) the obligee agrees. The court’s

order must specify the annual support amount, the average

monthly support amount, and the amount due month by month.

The order must provide that variations from the average

monthly amount begin with monthly payments in excess of the

average monthly amount such that a deficit situation cannot

occur. Until the excess payments begin, the average monthly

amount must be ordered.

es. The court’s

order must specify the annual support amount, the average

monthly support amount, and the amount due month by month.

The order must provide that variations from the average

monthly amount begin with monthly payments in excess of the

average monthly amount such that a deficit situation cannot

occur. Until the excess payments begin, the average monthly

amount must be ordered.

(d) Health Care Coverage.

(1) Health Insurance.

(A) The court shall address coverage of the children’s

health care needs and require health insurance for the children

if insurance is available to either parent at a reasonable cost

and accessible to the children. The court shall consider whether

the children are eligible for services through the Indian Health

Service (or any other entity) or other insurance coverage

before ordering either or both parents to provide health care

coverage through insurance or other means.

(i) Reasonable Cost. There is a rebuttable presumption

that the cost of health insurance is reasonable if the cost does

not exceed five percent of the adjusted annual income of the

parent who may be required to purchase the insurance.

(ii) Accessible. Health insurance is accessible to the

children if the plan pays for health care services reasonably

available to the children.

(B) The court shall allocate equally the cost of this

insurance between the parties unless the court orders otherwise

for good cause. An obligor’s child support obligation will be

decreased by the amount of the obligee’s portion of health

insurance payments ordered by the court and actually paid by

the obligor. A child support award will be increased by the

obligor’s portion of health insurance if the obligee is ordered

to, and actually does obtain and pay for insurance.

(C) The cost of insurance is the cost attributable to the

children for whom support is paid

ll be

decreased by the amount of the obligee’s portion of health

insurance payments ordered by the court and actually paid by

the obligor. A child support award will be increased by the

obligor’s portion of health insurance if the obligee is ordered

to, and actually does obtain and pay for insurance.

(C) The cost of insurance is the cost attributable to the

children for whom support is paid. If the cost to the employee

of covering the employee alone is the same as the cost to the

employee of covering the employee and dependents, then there

is no additional cost to the employee for adding the children

and no portion of the cost of coverage may be allocated to the

children. If dependent coverage can be added for a single cost,

rather than per dependent, and the dependent coverage covers

dependents in addition to the children subject to the order, the

cost of the dependent coverage will be allocated equally

among the dependents covered. If there is reason to believe

that there is an incremental cost to the employee for insuring

dependents but evidence of that incremental cost is

unavailable, the cost of insurance is determined by dividing the

total cost of coverage by the number of family members

covered and multiplying that amount by the number of

children subject to the order.

(2) Uncovered Health Care Expenses. The court shall

allocate equally between the parties the cost of reasonable

health care expenses not covered by insurance unless the court

orders otherwise for good cause. A party shall reimburse the

other party for his or her share of the uncovered expenses

within 30 days of receipt of the bill for the health care,

payment verification, and, if applicable, a health insurance

statement indicating what portion of the cost is uncovered.

Reasonable, uncovered expenses exceeding $5,000 in a

calendar year will be allocated based on the parties’ relative

financial circumstances when the expenses occur.

y for his or her share of the uncovered expenses

within 30 days of receipt of the bill for the health care,

payment verification, and, if applicable, a health insurance

statement indicating what portion of the cost is uncovered.

Reasonable, uncovered expenses exceeding $5,000 in a

calendar year will be allocated based on the parties’ relative

financial circumstances when the expenses occur.

(e) Child Support Affidavit and Documentation.

(1) Subject to the confidentiality requirements of Civil

Rule 90.1(f), each parent in a court proceeding at which child

support is involved must file a statement under oath which

states the parent’s adjusted annual income and the components

of this income as provided in subparagraph (a)(1). This

statement must be filed with a parent’s initial pleading (such as

the dissolution petition, divorce complaint or answer, etc.),

motion to modify, and any response to a motion to modify.

The statement must be accompanied by documentation

verifying the income and deductions. The documents must be

redacted to delete social security numbers and to provide only

partial financial account information as provided in Civil Rule

90.1(f). The statement must state whether the parent has

access to health insurance for the children and, if so, the

additional cost to the parent of the children’s health insurance.

For any infraction of these rules, the court may withhold or

assess costs or attorney’s fees as the circumstances of the case

and discouragement of like conduct in the future may require;

and such costs and attorney’s fees may be imposed upon

offending attorneys or parents.

to health insurance for the children and, if so, the

additional cost to the parent of the children’s health insurance.

For any infraction of these rules, the court may withhold or

assess costs or attorney’s fees as the circumstances of the case

and discouragement of like conduct in the future may require;

and such costs and attorney’s fees may be imposed upon

offending attorneys or parents.

(2) While there is an ongoing monthly support

obligation, either parent must provide to the other parent,

within 30 days of a written request, documentation of annual

income and claimed deductions, such as tax returns and the

last three pay stubs for the prior calendar year, as well as the

parent’s most recent three pay stubs from any current

employment, and documentation of any other current income

sources not listed on the parent’s prior year’s tax return. The

parent making the request must provide documentation of his

or her annual income and claimed deductions for the same

period, and current income documentation, at the time the

request is made. A request under this section may not be made

more than once per year. This section does not preclude

discovery under other civil rules.

(3) Unless the information has already been provided to

the court under Civil Rule 90.1(f), a statement under

subsection (e)(1) of this rule must be accompanied by a

confidential information sheet as described in Civil Rule

90.1(f). Once a complete confidential information sheet has

been submitted to the court listing names, dates of birth, and

social security numbers as required, the parties shall omit or

redact social security numbers from documents subsequently

filed in the action unless otherwise ordered by the court. This

paragraph applies to documents filed with the court on or after

October 15, 2006.

e

90.1(f). Once a complete confidential information sheet has

been submitted to the court listing names, dates of birth, and

social security numbers as required, the parties shall omit or

redact social security numbers from documents subsequently

filed in the action unless otherwise ordered by the court. This

paragraph applies to documents filed with the court on or after

October 15, 2006.

(f) Definitions.

(1) Shared Physical Custody. A parent has shared

physical custody (or shared custody) of children for purposes

of this rule if the children reside with that parent for a period

specified in writing in the custody order of at least 30, but no

more than 70, percent of the year, regardless of the status of

legal custody.

(2) Primary Physical Custody. A parent has primary

physical custody (or primary custody) of children for purposes

of this rule if the children reside with the other parent for a

period specified in the custody order of less than 30 percent of

the year.

(3) Divided Custody. Parents have divided custody under

this rule if one parent has primary physical custody of one or

more children of the relationship and the other parent has

primary custody of one or more other children of the

relationship, and the parents do not share physical custody of

any of their children.

(4) Hybrid Custody. Parents have hybrid custody under

this rule if at least one parent has primary physical custody of

one or more children of the relationship, and the parents have

shared physical custody of at least one child of the

relationship.

(5) Health Care Expenses. Health care expenses include

medical, dental, vision, and mental health counseling expenses.

(g) Travel Expenses. After determining an award of

child support under this rule, the court shall allocate reasonable

travel expenses which are necessary to exercise visitation

between the parties as may be just and proper for them to

contribute.

hild of the

relationship.

(5) Health Care Expenses. Health care expenses include

medical, dental, vision, and mental health counseling expenses.

(g) Travel Expenses. After determining an award of

child support under this rule, the court shall allocate reasonable

travel expenses which are necessary to exercise visitation

between the parties as may be just and proper for them to

contribute.

(h) Modification.

(1) Material Change of Circumstances. A final child

support award may be modified upon a showing of a material

change of circumstances as provided by state law. A material

change of circumstances will be presumed if support as

calculated under this rule is more than 15 percent greater or

less than the outstanding support order. For purposes of this

paragraph, support includes health insurance payments made

pursuant to (d)(1) of this rule.

(2) No Retroactive Modification. Child support arrearage

may not be modified retroactively, except as allowed by AS

25.27.166(d). A modification which is effective on or after the

date that a motion for modification, or a notice of petition for

modification by the Child Support Services Division, is served

on the opposing party is not considered a retroactive

modification.

(3) Preclusion. The court may find that a parent and a

parent’s assignee are precluded from collecting arrearages for

support of a child that accumulated during a time period

exceeding six consecutive months for which the parent agreed

or acquiesced to the obligor exercising primary custody of the

child. A finding that preclusion is a defense must be based on

clear and convincing evidence.

(3) Preclusion. The court may find that a parent and a

parent’s assignee are precluded from collecting arrearages for

support of a child that accumulated during a time period

exceeding six consecutive months for which the parent agreed

or acquiesced to the obligor exercising primary custody of the

child. A finding that preclusion is a defense must be based on

clear and convincing evidence.

(i) Third Party Custody.

(1) When the state, or another third party entitled to child

support, has custody of all children of a parent, the parent’s

support obligation to the third party is an amount equal to the

adjusted annual income of the parent multiplied by the

percentage specified in subparagraph (a)(2). If the third party

has custody of some but not all children, the parent’s support

obligation to the third party is an amount equal to the adjusted

annual income of the parent, multiplied by the percentage

specified in subparagraph (a)(2) for the total number of the

parent’s children, multiplied by the number of the parent’s

children in third party custody, divided by the total number of

the parent’s children. For purposes of this paragraph, the

number of the parent’s children only includes children of the

parent who live with the parent, are substantially supported by

the parent or who are in custody of the third party entitled to

support.

(2) If, in addition to a support obligation to a third party,

one or both parents retain primary or shared physical custody

of at least one of their children, the support obligation between

the parents is calculated pursuant to the other paragraphs of

this rule, without consideration of the third party custodian or

any children in the custody of the third party custodian, except

that the percentage in 90.3(a)(2) must be adjusted pro rata for

the number of children in the primary custody of a parent, or

shared custody of the parents, compared to the total number of

children

een

the parents is calculated pursuant to the other paragraphs of

this rule, without consideration of the third party custodian or

any children in the custody of the third party custodian, except

that the percentage in 90.3(a)(2) must be adjusted pro rata for

the number of children in the primary custody of a parent, or

shared custody of the parents, compared to the total number of

children. After that calculation is completed, any support

owed may be offset with support owed to a third party

custodian under the preceding subparagraph in order to

minimize transactions.

(j) Support Order Forms. All orders for payment or

modification of child support shall be entered on a form

developed by the administrative director. A party may lodge a

duplicate of the court form produced by a laser printer or

similar device. A device may also print, in a contrasting

typestyle equivalent to that produced by a typewriter, text that

otherwise would have been entered by a typewriter or word

processor. A party or attorney who lodges a duplicate certifies

by lodging the duplicate that it is identical to the current

version of the court form.

(k) Dependent Tax Deduction. The court may allocate

the dependent tax deduction for each child between the parties

as is just and proper and in the child’s best interests. The

allocation must be consistent with AS 25.24.152 and federal

law.

(Adopted by SCO 833 effective August 1, 1987; amended by

SCO 935 effective January 15, 1989; by SCO 1008 effective

January 15, 1990; by SCO 1192 effective July 15, 1995; by

SCO 1246 effective July 15, 1996; by SCO 1269 effective July

15, 1997; by SCO 1295 effective January 15, 1998; by SCO

1362 effective October 15, 1999; by SCO 1399 effective

October 15, 2000; by SCO 1417 effective April 15, 2001; by

SCO 1526 effective April 15, 2005; by SCO 1595 effective

October 15, 2006; by SCO 1686 effective April 15, 2009; by

SCO 1716 effective July 1, 2009; by SCO 1782 effective

October 15, 2013; by SCO 1800 effective October 15, 2013;

997; by SCO 1295 effective January 15, 1998; by SCO

1362 effective October 15, 1999; by SCO 1399 effective

October 15, 2000; by SCO 1417 effective April 15, 2001; by

SCO 1526 effective April 15, 2005; by SCO 1595 effective

October 15, 2006; by SCO 1686 effective April 15, 2009; by

SCO 1716 effective July 1, 2009; by SCO 1782 effective

October 15, 2013; by SCO 1800 effective October 15, 2013;

by SCO 1919 effective April 16, 2018; and by SCO 1939 nunc

pro tunc September 13, 2018; and by SCO 2004 effective

October 16, 2023)

Note:

This rule is adopted under the supreme court’s

interpretive authority pursuant to Article IV, Section I of the

Alaska Constitution. Thus, it may be superseded by legislation

even if the legislation does not meet the procedural

requirements for changing rules promulgated under Article IV,

Section 15.

Note to Civil Rule 90.3(c)(1)(B):

The

Federal

Poverty

Guidelines are usually revised each February. The new poverty

income guideline for one person in Alaska in 1999 is $10,320

(Federal Register, Vol. 64, No. 52, 13428–13430, March 18,

1999). The Alaska Supreme Court has indicated that the

poverty guideline that should be used is the guideline for the

state in which the obligor resides. See Carstens v. Carstens,

867 P.2d 805, 810 (Alaska 1994).

Note to Civil Rule 90.3(h)(1):

Section 44 of ch. 87 SLA

1997 amended AS 25.24.170(b) to allow support to be

modified in some instances without a showing of a material

change in circumstances as necessary to comply with federal

law. According to § 152 of ch. 87 SLA 1997, the amendment

to AS 25.24.170(b) has the effect of amending Civil Rule 90.3

by changing the standard for certain modifications of a support

order as necessary to comply with federal law. Federal law,

however, allows states to apply a reasonable quantitative

standard to determine if a child support order should be

modified. For further explanation, see Commentary X.A.

Note to Civil Rule 90.3(h)(2): AS 25.27.166(d), enacted by §

14 of ch

t of amending Civil Rule 90.3

by changing the standard for certain modifications of a support

order as necessary to comply with federal law. Federal law,

however, allows states to apply a reasonable quantitative

standard to determine if a child support order should be

modified. For further explanation, see Commentary X.A.

Note to Civil Rule 90.3(h)(2): AS 25.27.166(d), enacted by §

14 of ch. 57 SLA 1995, has the effect of amending Civil Rule

90.3(h)(2) by allowing retroactive modification of child

support

arrearage

under

circumstances

involving

disestablishment of paternity, to the extent such modification is

not prohibited by federal law.

Note:

Civil Rule 90.3(c)(3) was added by § 44 ch, 107 SLA

1996. Section 22 of ch. 107 SLA 1996 enacts 25.27.195(b),

which allows CSED to vacate an administrative support order

that was based on a default amount rather than the obligor’s

actual ability to pay. If an order is vacated on this basis, AS

25.27.195(d) allows the agency to modify the obligor’s

arrearages under the original order. According to § 50 ch. 107

SLA 1996, AS 25.27.195(d) has the effect of amending Rule

90.3(h)(2), which prohibits retroactive modification of child

support arrearages.

Note:

Section 41 of ch. 87 SLA 1997 amends AS 25.20.050

relating to paternity actions. According to § 150 of the Act, §

41 has the effect of amending Civil Rule 90.3 by requiring the

court in a paternity action to issue a temporary child support

order upon a showing by clear and convincing evidence of

paternity.

Note:

Chapter 106 SLA 2000 amends various laws relating

to medical support orders

:

Section 41 of ch. 87 SLA 1997 amends AS 25.20.050

relating to paternity actions. According to § 150 of the Act, §

41 has the effect of amending Civil Rule 90.3 by requiring the

court in a paternity action to issue a temporary child support

order upon a showing by clear and convincing evidence of

paternity.

Note:

Chapter 106 SLA 2000 amends various laws relating

to medical support orders. According to section 24 of the act,

the act amends Civil Rule 90.3 “by specifying that a medical

support order may be issued even when a support order for

periodic monetary payments is not issued and by setting the

requirements for medical support orders.”

Note:

Chapter 108 SLA 04 (HB 514) enacted several

amendments to the child support statutes, including a provision

that permits periodic modifications of a child support order

without a showing of materially changed circumstances.

According to Section 17 of the Act, statutory modifications to

AS 25.27.190(e) have the effect of amending Civil Rule 90.3

by changing the grounds for modifying a support order.

Note (effective nunc pro tunc to July 1, 2009): Chapter 45

SLA 2009 (SB 96), effective July 1, 2009, enacted changes

relating to child support, including changes concerning orders

for medical support of a child. According to section 13 of the

Act, AS 25.27.060(c) as amended by section 4 of the Act, has

the effect of changing Civil Rule 90.3 by changing standards

for issuance of medical and other support orders by the court.

Note: Chapter 24 SLA 2018 (SB 134) concerned actions for

termination of parental rights. According to section 19(a) of

the Act, AS 25.23.130(f), enacted by section 6 of the Act, has

the effect of amending Civil Rule 90.3 by providing that a

termination of parental rights under AS 25.23.180(c)(2), as

amended by section 12 of the Act, does not relieve a biological

parent of an obligation to pay child support unless the decree

specifically provides for the termination of the obligation to

pay child support

of

the Act, AS 25.23.130(f), enacted by section 6 of the Act, has

the effect of amending Civil Rule 90.3 by providing that a

termination of parental rights under AS 25.23.180(c)(2), as

amended by section 12 of the Act, does not relieve a biological

parent of an obligation to pay child support unless the decree

specifically provides for the termination of the obligation to

pay child support.

Civil Rule 90.3

COMMENTARY

I.

INTRODUCTION

A. Committee Commentary. This commentary to

Civil Rule 90.3 was prepared by the Child Support Guidelines

Committee. The commentary has not been adopted or

approved by the Supreme Court, but is published by the court

for informational purposes and to assist users of Rule 90.3.

B. Purpose. The primary purpose of Rule 90.3 is to

ensure that child support orders are adequate to meet the needs

of children, subject to the ability of parents to pay.

The second purpose of 90.3 is to promote consistent child

support awards among families with similar circumstances.

Third, the rule is intended to simplify and make more

predictable the process of determining child support, both for

the courts and the parties. Predictable and consistent child

support awards will encourage the parties to settle disputes

amicably and, if resolution by the court is required, will make

this process simpler and less expensive.

The final purpose of 90.3 is to ensure that Alaska courts

comply with state and federal law. AS 25.24.160(a)(1) requires

that child support be set in an amount which is “just and

proper....”The Child Support Enforcement Amendments of

1984 (P.L. 98–378) and its implementing regulations (45 CFR

302.56) require states to adopt statewide guidelines for

establishing child support. The Family Support Act of 1988

(P.L. 100–485) requires that the guidelines presumptively

apply to all child support awards and that the guidelines be

reviewed every four years.

The Nature of Child Support. Every parent has a duty to

support his or her child

. 98–378) and its implementing regulations (45 CFR

302.56) require states to adopt statewide guidelines for

establishing child support. The Family Support Act of 1988

(P.L. 100–485) requires that the guidelines presumptively

apply to all child support awards and that the guidelines be

reviewed every four years.

The Nature of Child Support. Every parent has a duty to

support his or her child. Child support is the contribution to a

child's maintenance required of both parents. The amount of

support a child is entitled to receive from a particular parent is

determined by that parent's ability to provide for the child.

Typically, the obligation to pay child support begins on the

child’s date of birth if the parents are not living together, or on

the date the parents stop living together if separation is after

the birth of the child.

C. Scope of Application. Rule 90.3 applies to all

proceedings involving child support, whether temporary or

permanent, contested or non-contested, including without

limitation actions involving separation, divorce, dissolution,

support modification, domestic violence, paternity, Child in

Need of Aid and Delinquency. The support guidelines in the

rule may be varied only as provided by paragraph (c) of the

rule. Rule 90.3 applies to support of children aged 18

authorized by Chapter 117, SLA 1992, but otherwise does not

apply to set support which may be required for adult children.

II. PERCENTAGE OF INCOME

APPROACH

Rule 90.3 employs the percentage of income approach.

This approach is based on economic analyses which show the

proportion of income parents devote to their children in intact

families is relatively constant across income levels up to a

certain upper limit. Applications of the rule should result in a

non-custodial parent paying approximately what the parent

would have spent on the children if the family was intact

ercentage of income approach.

This approach is based on economic analyses which show the

proportion of income parents devote to their children in intact

families is relatively constant across income levels up to a

certain upper limit. Applications of the rule should result in a

non-custodial parent paying approximately what the parent

would have spent on the children if the family was intact.

Integral to the rule is the expectation that the custodial

parent will contribute at least the same percentage of income to

support the children. The rule operates on the principle that as

the income available to both parents increases, the amount

available to support the children also will increase. Thus, at

least in the primary custodial situation, the contribution of one

parent does not affect the obligation of the other parent.

III. DEFINING INCOME

A. Generally. The first step in determination of child

support is calculating a “parent’s total income from all

sources” Rule 90.3(a)(1). This phrase should be interpreted

broadly to include benefits which would have been available

for support if the family had remained intact. Income includes,

but is not limited to:

1.

salaries and wages (including overtime and tips);

2.

commissions;

3.

severance pay;

4.

royalties;

5.

bonuses and profit sharing;

6.

interest and dividends, including permanent fund

dividends;

7.

income derived from self-employment and from

businesses or partnerships;

8.

social security;

9.

veterans’ benefits, except those that are means based;

10. insurance benefits in place of earned income such as

workers’ compensation or periodic disability payments;

11. workers’ compensation;

12. unemployment compensation;

13. pensions;

14. annuities;

15. income from trusts;

16. capital

gains

in

real

and

personal

property

transactions to the extent that they represent a regular source of

income;

17. spousal support received from a person not a party to

the order;

18. contractual agreements;

19

s’ compensation or periodic disability payments;

11. workers’ compensation;

12. unemployment compensation;

13. pensions;

14. annuities;

15. income from trusts;

16. capital

gains

in

real

and

personal

property

transactions to the extent that they represent a regular source of

income;

17. spousal support received from a person not a party to

the order;

18. contractual agreements;

19. perquisites or in-kind compensation to the extent that

they are significant and reduce living expenses, including but

not limited to employer provided housing (including military

housing) and transportation benefits (but excluding employer

provided health insurance benefits);

20. income from life insurance or endowment contracts;

21. income from interest in an estate (direct or through a

trust);

22. lottery or gambling winnings received either in a

lump sum or an annuity;

23. prizes and awards;

24. net rental income;

25. disability benefits;

26. G.I. benefits (excluding education allotments);

27. National Guard and Reserves drill pay; and

28. Armed Service Members base pay plus the obligor’s

allowances for quarters, rations, COLA and specialty pay.

Lump sum withdrawals from pension or profit sharing

plans or other funds will not be counted as income to the extent

that the proceeds have already been counted as income for the

purposes of calculating child support under this rule (i.e.,

contributions to a voluntary pension plan).

Social security Children’s Insurance Benefits (CIB) must

be counted as income of the retired or disabled parent on

whose behalf the payments are made. CIB paid to the other

parent also constitute child support payments by the retired or

disabled parent. See Pacana v. State, 941 P.2d 1263 (Alaska

1997).

Means based sources of income such as Alaska

Temporary Assistance Program (ATAP), formerly Aid to

Families with Dependent Children (AFDC), Food Stamps, and

Supplemental Security Income (SSI) should not be considered

as income

nts are made. CIB paid to the other

parent also constitute child support payments by the retired or

disabled parent. See Pacana v. State, 941 P.2d 1263 (Alaska

1997).

Means based sources of income such as Alaska

Temporary Assistance Program (ATAP), formerly Aid to

Families with Dependent Children (AFDC), Food Stamps, and

Supplemental Security Income (SSI) should not be considered

as income. The principal amount of one-time gifts and

inheritances should not be considered as income, but interest

from the principal amount should be considered as income and

the principal amount may be considered as to whether unusual

circumstances exist as provided by 90.3(c). Tax deferred

dividends and interest earned on pension or retirement

accounts, including individual retirement accounts, which are

not distributed to the parent are not income. Child support is

not income.

B. Self Employment Income. Income from self-

employment, rent, royalties, or joint ownership of a partnership

or closely held corporation includes the gross receipts minus

the ordinary and necessary expenses required to produce the

income. Ordinary and necessary expenses do not include

amounts allowable by the IRS for the accelerated component

of depreciation expenses, investment tax credits, or any other

business expenses determined by the court to be inappropriate.

Expense reimbursements and in-kind payments such as use of

a company car, free housing or reimbursed meals should be

included as income if the amount is significant and reduces

living expenses.

C. Potential Income. The court may calculate child

support imputing potential income to a parent who the court

determines is voluntarily and unreasonably unemployed or

underemployed based on an analysis of the factors enumerated

in the rule. The court shall consider the totality of the

circumstances in deciding whether to impute income and the

amount.

D. Low-Income Adjustment

ing expenses.

C. Potential Income. The court may calculate child

support imputing potential income to a parent who the court

determines is voluntarily and unreasonably unemployed or

underemployed based on an analysis of the factors enumerated

in the rule. The court shall consider the totality of the

circumstances in deciding whether to impute income and the

amount.

D. Low-Income Adjustment. A non-custodial parent

with a gross annual income of $30,000 or less must calculate

annual adjusted income under two different methods. See Rule

90.3(a)(5). First, the parent calculates their annual adjusted

income by using the formula under subparagraph (a)(1) with

“itemized deductions”. Second, the parent calculates their

adjusted annual income by applying the low-income

adjustment formula that provides for a $7,500 “standard

deduction” from gross annual income. For purposes of

calculating child support, the parent’s adjusted annual income

is the lesser of the two calculations. The child support amount

is still subject to the $50 monthly minimum in subparagraph

(c)(3). The low-income adjustment was added in 2023 to take

into consideration the noncustodial parent’s basic subsistence

needs and limited ability to pay, as required by federal

regulations governing child support guidelines. See 45 C.F.R.

§ 302.56(c)(1)(ii).

E. Deductions. A very limited number of expenses may

be deducted from income. Mandatory deductions such as taxes

and mandatory union dues are allowable. The parent claiming

a deduction must provide evidence to support it.

1.

Mandatory retirement contributions are a deduction.

Voluntary contributions, up to the limit stated in the rule, are

also a deduction if the earnings on the retirement account or

plan are tax-free or tax-deferred. If a parent is not a participant

in a mandatory plan, the limit on voluntary contributions is 7.5

% of the parent’s total income

deduction must provide evidence to support it.

1.

Mandatory retirement contributions are a deduction.

Voluntary contributions, up to the limit stated in the rule, are

also a deduction if the earnings on the retirement account or

plan are tax-free or tax-deferred. If a parent is not a participant

in a mandatory plan, the limit on voluntary contributions is 7.5

% of the parent’s total income. If a parent is a participant in a

mandatory plan, the limit on voluntary contributions is 7.5 %

of the parent’s total income minus the amount of the

mandatory contribution. Some examples of plans and accounts

that qualify for the voluntary contribution are: those qualified

under the Internal Revenue Code, 26 USC §§ 401, 403, 408 or

457 (such as a traditional IRA, Roth IRA, SEP-IRA, SIMPLE

IRA, Keogh Plan, 401(k) Plan, etc.); Thrift Savings Plans

under 5 USC § 8440, 37 USC § 211, etc.; and any other

pension plan as defined by § 3 (2) of ERISA (P.L. 93–406; 29

USC § 1002(2)).

2.

Child support arising out of different relationships is

deductible if two conditions are met. First, it must be required

by a court or administrative order. (Support paid voluntarily

without a court or administrative order may be considered

under Rule 90.3(c).) Second, it must relate to prior children.

The date of birth or adoption of a child determines whether a

child is a prior child. See Coleman v. McCullough, 290 P.3d

413 (Alaska 2012). A child support order for children of a later

marriage or relationship should take into account an order to

pay support for children of a prior marriage or relationship, but

not

vice-versa.

(See

Commentary

VI.B.2

regarding

“subsequent” children.)

Spousal support paid to another person arising out of

a different relationship is deductible if three conditions are

met. First, the spousal support must actually be paid. Second, it

must be required by a court or administrative order. Third, it

must relate to a prior relationship.

3

marriage or relationship, but

not

vice-versa.

(See

Commentary

VI.B.2

regarding

“subsequent” children.)

Spousal support paid to another person arising out of

a different relationship is deductible if three conditions are

met. First, the spousal support must actually be paid. Second, it

must be required by a court or administrative order. Third, it

must relate to a prior relationship.

3.

A deduction also is allowed for in-kind support of

prior children of a different relationship in the primary or

shared physical custody of the parent. If the parent has primary

physical custody of the prior children, the in-kind deduction is

the amount calculated under Rule 90.3(a)(2), using the parent’s

current income, as if the prior children were the only children.

If the parent has shared physical custody of the prior children,

the in-kind deduction is calculated as follows: first, calculate

the parent’s support under Rule 90.3(a)(2), using the parent’s

current income, as if the prior children were the only children;

second, multiply this number by the percentage of time the

parent has physical custody of the prior children. A parent who

pays support for prior children may also take a deduction under

Rule 90.3(a)(1)(C) for support ordered and paid. Rule 90.3 was

amended to allow deductions for both in-kind and paid support

for shared custody of prior children. (Gorton v. Mann, 281

P.3d 81 (Alaska 2012) interpreted the previous version of the

rule.) When adding the in-kind deduction to a deduction based

on court or administrative-ordered support, the total deduction

cannot exceed the amount calculated under subparagraph

dered and paid. Rule 90.3 was

amended to allow deductions for both in-kind and paid support

for shared custody of prior children. (Gorton v. Mann, 281

P.3d 81 (Alaska 2012) interpreted the previous version of the

rule.) When adding the in-kind deduction to a deduction based

on court or administrative-ordered support, the total deduction

cannot exceed the amount calculated under subparagraph

(a)(2). The deduction for in-kind support of prior children is

not reduced by child support received from the other parent.

Faulkner v. Goldfuss, 46 P.3d 993, 998 (Alaska 2002).

4. A deduction is allowed for the out-of-pocket cost of

health insurance premiums, including dental and vision

coverage, paid by the parent and for the parent’s own coverage

to a maximum of 10% of the parent’s total income. The

deduction may not include the cost to cover other members of

the household, such as the parent’s spouse or children. If the

insurance for the parent also covers other members of the

parent’s household, and evidence is unavailable as to the

specific cost of insuring only the parent subject to this order,

the deductible cost for the parent may be determined by

allocating the total cost of coverage pro rata among all covered

family members.

A deduction is also allowed for the out-of-pocket cost of

life insurance premiums when the beneficiary(ies) is the

child(ren) covered by the child support order or the individual

to whom the support is owed. This deduction is available for

any policy held for the benefit of the children covered by the

child support order or the individual to whom the support is

owed but the total deduction may not exceed $1,200 annually

(or $100 per month). If the policy lists beneficiaries in addition

to the child/children covered by the child support order or the

individual to whom the support is owed, the allowable

deduction is determined by allocating the total cost of the

premiums pro rata among all beneficiaries

order or the individual to whom the support is

owed but the total deduction may not exceed $1,200 annually

(or $100 per month). If the policy lists beneficiaries in addition

to the child/children covered by the child support order or the

individual to whom the support is owed, the allowable

deduction is determined by allocating the total cost of the

premiums pro rata among all beneficiaries. Any person

claiming a deduction for life insurance premiums must provide

proof of the policy and beneficiaries if requested by the other

parent, the court, or the Child Support Services Division. An

example of qualifying life insurance is Servicemembers’

Group Life Insurance, commonly listed as SGLI on the service

member’s Leave and Earnings Statement.

Also, reasonable child care expenses that are necessary to

enable a parent to work, or to be enrolled in an educational

program which will improve employment opportunities, are

deductible. However, the expense must be for the children who

are the subject of the support order.

F. Time Period for Calculating Income. Child

support is calculated as a certain percentage of the income

which will be earned when the support is to be paid. This

determination will necessarily be somewhat speculative

because the relevant income figure is expected future income.

The court must examine all available evidence to make the best

possible calculation.

The determination of future income may be especially

difficult when the obligor has had very erratic income in the

past. In such a situation, the court may choose to average the

obligor’s past income over several years.

Despite the difficulty in estimating future income, a child

support order should award a specific amount of support,

rather than a percentage of whatever future income might be.

The latter approach has been rejected because of enforcement

and oversight difficulties.

IV. PRIMARY CUSTODY

A. Generally

h a situation, the court may choose to average the

obligor’s past income over several years.

Despite the difficulty in estimating future income, a child

support order should award a specific amount of support,

rather than a percentage of whatever future income might be.

The latter approach has been rejected because of enforcement

and oversight difficulties.

IV. PRIMARY CUSTODY

A. Generally. "Primary custody" as this term is used in

Rule 90.3 covers the usual custodial situation in which one

parent will have physical custody of the child—in other words,

the child will be living with that parent—for over seventy

percent of the year. The shared custody calculation in

paragraph (b)(1) applies only if the other parent will have

physical custody of the child at least thirty percent of the year

(110 overnights per year). The visitation schedule must be

specified in the decree or in the agreement of the parties which

has been ratified by the court. See also Commentary V.A.

The calculation of child support for the primary custodial

case under 90.3(a) simply involves multiplying the obligor's

adjusted income times the relevant percentage given in

subparagraph (a)(2). (Normally, the portion of an adjusted

annual income over $138,000 per year will not be counted. See

Commentary VI.D.) As discussed above, the rule assumes that

the custodial parent also will support the children with at least

the same percentage of his or her income.

B. Visitation Credit. An obligor who exercises

extended visitation, even if the visitation does not reach the

thirty percent level of shared custody, probably will spend

significant funds directly for the children during visitation. The

parent with primary custody conversely will have somewhat

lower expenses during the extended visitation even though that

parent’s fixed costs such as housing will not decrease

it. An obligor who exercises

extended visitation, even if the visitation does not reach the

thirty percent level of shared custody, probably will spend

significant funds directly for the children during visitation. The

parent with primary custody conversely will have somewhat

lower expenses during the extended visitation even though that

parent’s fixed costs such as housing will not decrease.

Consequently, 90.3(a)(3) authorizes the trial court, in its

discretion, to allow a partial credit (up to 75% of total support

for the period of extended visitation) against a child support

obligation. In considering a visitation credit, the court may

consider the financial consequences to the parties of the

visitation arrangement and a credit. The court shall ensure that

support for the child, including contributions from both

parents, is adequate to meet the child’s needs while the child

resides with the custodial parent. A visitation credit may be

taken only if the extended visitation actually exercised exceeds

27 consecutive days and the court has authorized the specific

amount of the credit. Nominal time with the custodial parent

during the visitation period, including occasional overnights,

does not defeat the visitation credit.

V. SHARED,

DIVIDED,

AND

HYBRID

PHYSICAL CUSTODY

A. Shared Custody—Generally.

“Shared custody” as this term is used in Rule 90.3 means

that each parent has physical custody of the children at least

thirty percent of the year according to a specified visitation

schedule in the decree. “Shared custody” as used in 90.3 has

no relation to whether a court has awarded sole or joint legal

custody. “Shared custody” is solely dependent on the time that

the decree or agreement of the parties which has been ratified

by the court specifies the children will spend with each parent.

In order for a day of visitation to count towards the

required thirty percent, the children normally must remain

overnight with that parent

no relation to whether a court has awarded sole or joint legal

custody. “Shared custody” is solely dependent on the time that

the decree or agreement of the parties which has been ratified

by the court specifies the children will spend with each parent.

In order for a day of visitation to count towards the

required thirty percent, the children normally must remain

overnight with that parent. (Thirty percent of the overnights in

a year total 110 overnights.) Thus, a day or an evening of

visitation by itself will not count towards the total of time

necessary for shared custody. Visitation from Saturday

morning until Sunday evening would count as one overnight.

However, the court may use another method of calculating the

percentages of custody when counting overnights does not

accurately reflect the ratio of expenditures by the parents.

B. Calculation of Shared Custody Support. The

calculation of support in shared custody cases is based on two

premises. First, the fact that the obligor is spending a

substantial amount of the time with the children probably

means the obligor also is paying directly for a substantial

amount of the expenses of the children. Thus, the first step in

calculating shared custody support is to calculate reciprocal

support amounts for the time each parent will have custody

based on the income of the other parent. The “high income”

limit of paragraph (c)(2) ($138,000) applies to the

determination of adjusted income at the first stage of this

process. A parent’s annual support amount for purposes of this

calculation will be no less than $600. The support amounts

then are offset.

This calculation assumes that the parents are sharing

expenses in roughly the same proportion as they are sharing

custody. If this assumption is not true, the court should make

an appropriate adjustment in the calculation.

The second premise is that the total funds necessary to

support children will be substantially greater when custody is

shared

$600. The support amounts

then are offset.

This calculation assumes that the parents are sharing

expenses in roughly the same proportion as they are sharing

custody. If this assumption is not true, the court should make

an appropriate adjustment in the calculation.

The second premise is that the total funds necessary to

support children will be substantially greater when custody is

shared. For example, each parent will have to provide housing

for the children. Thus, the amount calculated in the first step is

increased by 50% to reflect these increased shared custody

costs. However, the obligor’s support obligation never will

exceed the amount which would be calculated for primary

custody under 90.3(a). The amount which would be calculated

under 90.3(a) should include any appropriate visitation credit

as provided by (a)(3).

C. Failure to Exercise Shared Custody. An inequity

may arise under the shared custody calculation of support if the

obligor does not actually exercise the custody necessary to

make shared custody applicable (i.e., at least 30% of the time).

If the obligor parent does not actually exercise sufficient

physical custody to qualify for the shared custody calculation

in the rule (at least 110 overnights per year—See Commentary,

Section V.A), then (a)(2) of this rule will apply to the child

support calculation. Failure to exercise custody in this regard is

grounds for modification of support, even if the custody order

is not modified. However, this provision may not be

interpreted to allow the custodial parent to profit by denying

visitation.

D. Divided Custody. Rule 90.3(f)(3) defines divided

custody as when both parents have primary physical custody of

at least one of the parent’s children and the parents do not

share custody of any of their children. The calculation of

support for divided custody is a two-part process

However, this provision may not be

interpreted to allow the custodial parent to profit by denying

visitation.

D. Divided Custody. Rule 90.3(f)(3) defines divided

custody as when both parents have primary physical custody of

at least one of the parent’s children and the parents do not

share custody of any of their children. The calculation of

support for divided custody is a two-part process.

The first step is to offset the amounts of support each

parent would pay the other for the children in that parent’s

primary custody calculated under 90.3(a). For example, if the

father has primary custody of one child and the mother primary

custody of three children (four children total), the father would

owe support to the mother of 33% (three children) of his

adjusted annual income. This amount would be offset by 20%

(one child) of the mother’s adjusted annual income. This

method was implicitly approved in Bunn v. House, 934 P.2d

753, 755–58 (Alaska 1997). Note that this method of

calculation supercedes the method used in Rowen v. Rowen,

963 P.2d 249, 254 (Alaska 1998).

The second step in determining divided custody support is

for the court to carefully consider whether the support amount

should be varied under paragraph (c)(1). A divided custody

case should be treated as an unusual circumstance under which

support will be varied if such a variation is “just and proper....”

E. Hybrid Custody. Rule 90.3(f)(4) defines hybrid

custody as when at least one parent has primary physical

custody of at least one child of the relationship, and the parents

share physical custody of at least one child of the relationship.

The method for calculating child support in a hybrid

custody situation in Rule 90.3(b)(3) comes from Turinsky v.

Long, 910 P.2d 590, 596–97 n.13 (Alaska 1996).

Step One

dy. Rule 90.3(f)(4) defines hybrid

custody as when at least one parent has primary physical

custody of at least one child of the relationship, and the parents

share physical custody of at least one child of the relationship.

The method for calculating child support in a hybrid

custody situation in Rule 90.3(b)(3) comes from Turinsky v.

Long, 910 P.2d 590, 596–97 n.13 (Alaska 1996).

Step One. Determine the percentage of income to use in

both the “primary” and “shared” calculations as follows: divide

the Rule 90.3(a)(2) percentage for the total number of children

by the total number of children to determine a per-child

percentage. For example, if there are four children, divide

36% by 4 to get a per child percent of 9%.

Step Two. Use Rule 90.3(a) to calculate the amount each

parent owes for any children in the primary physical custody of

the other parent. However, instead of using the percentages in

(a)(2), use the per-child percent from Step One multiplied by

the number of children in the other parent’s primary physical

custody. For example, if two of the four children are in the

mother’s primary physical custody, the father would owe 18%

(2 x 9%) of his adjusted annual income for the support of those

children.

Step Three. Use Rule 90.3(b) to determine the amount

owed for the children in shared physical custody and which

parent owes it. Use the per-child percentage from Step One

multiplied by the number of children in shared physical

custody instead of the percentage in (a)(2). For example, if

two of the four children are in shared physical custody, each

parent’s adjusted annual income will be multiplied by 18% (2

x 9%).

Step Four. Add the amounts calculated in Steps Two and

Three if they are owed by the same parent. Offset the amounts

calculated in Steps Two and Three if they are owed by

different parents. The result is the total amount owed each

year.

Step Five. Consider whether the support amount should

be varied under paragraph (c)(1) of the rule

justed annual income will be multiplied by 18% (2

x 9%).

Step Four. Add the amounts calculated in Steps Two and

Three if they are owed by the same parent. Offset the amounts

calculated in Steps Two and Three if they are owed by

different parents. The result is the total amount owed each

year.

Step Five. Consider whether the support amount should

be varied under paragraph (c)(1) of the rule. Hybrid custody is

an unusual circumstance in which support must be varied if

such a variation is “just and proper.”

Sample hybrid custody calculation: In the following

sample calculation, there are four children in the family.

Mother has primary custody of two, and the parents share

custody of the other two. The shared two children will be in

mother’s physical custody 70 percent of the time and in

father’s 30 percent of the time. Father’s adjusted annual

income is $50,000. Mother’s is $40,000. Step One. The

percentage of income from (a)(2) of the rule for four children

is 36 percent. Therefore, the percentage per child is 9 percent

[36 divided by 4]. Step Two. Father owes mother $9000 per

year for the two children in mother’s primary custody [$50,000

x 18%]. Step Three. Father owes mother $6210 per year for

the two children in shared custody [(father owes $50,000 x

18% = $9000 x 70% = $6300)—(mother owes $40,000 x 18%

= $7200 x 30% = $2160). $6300 - $2160 = $4140 x 1.5 =

$6210]. Step Four. Thus, for all four children, father owes

mother $15,210 [$9000 + $6210].

VI. EXCEPTIONS

A. Generally. Child support in the great majority of

cases should be awarded under 90.3(a) or (b) in order to

promote consistency and to avoid a tendency to underestimate

the needs of the children. Nevertheless, the circumstances in

which support issues arise may authorize courts to vary

support awards for good cause

four children, father owes

mother $15,210 [$9000 + $6210].

VI. EXCEPTIONS

A. Generally. Child support in the great majority of

cases should be awarded under 90.3(a) or (b) in order to

promote consistency and to avoid a tendency to underestimate

the needs of the children. Nevertheless, the circumstances in

which support issues arise may authorize courts to vary

support awards for good cause.

The court may apply this good cause exception only if the

parent requesting that support be varied presents clear and

convincing evidence that manifest injustice would result if the

support award were not varied. In addition, a prerequisite of

any variation under 90.3(c) is that the reasons for it must be

specified in writing by the court.

What constitutes “good cause” will depend on the

circumstances of each cause. Three situations constituting

“good cause” are discussed below in sections VI.B D. These

three specific exceptions are not exclusive; however, the

general exception for good cause may not be interpreted to

replace the specific exceptions. Absent the (c)(1) exception

(unusual circumstances), the (c)(2) exception (high income), or

the (c)(3) exception (low income), the rule presumes that

support calculated under 90.3(a) or (b) does not result in

manifest injustice.

B. Unusual Circumstances. 90.3(c)(1) provides that a

court shall vary support if it finds, first, that unusual

circumstances

exist

and,

second,

that

these

unusual

circumstances make application of the usual formula unjust.

Examples might include especially large family size,

significant income of a child, health or other extraordinary

expenses, or unusually low expenses. This determination

should be made considering the custodial parent’s income

because the percentage of income approach used in Alaska

tends to slightly understate support relative to the national

average for cases in which the custodial spouse does not earn a

significant income

arge family size,

significant income of a child, health or other extraordinary

expenses, or unusually low expenses. This determination

should be made considering the custodial parent’s income

because the percentage of income approach used in Alaska

tends to slightly understate support relative to the national

average for cases in which the custodial spouse does not earn a

significant income. This understatement relative to the national

average becomes substantial if the custodial parent has child

care expenses. The application of the unusual circumstances

exception to particular types of factual situations is considered

below.

1.

Agreement of the Parents. The fact that the parties,

whether or not represented by counsel, agree on an amount of

support is not reason in itself to vary the guidelines. The

children have an interest in adequate support independent of

either parent’s interest. Thus, approval of any agreement which

varies the guidelines, whether in a dissolution, by stipulation or

otherwise, must be based upon an explanation by the parties of

what unusual factual circumstances justify the variation.

2. Subsequent Children. A parent with a support

obligation may have other children living with him or her who

were born or adopted after the support obligation arose. The

existence of such “subsequent” children, even if the obligor

has a legal obligation to support these children, will not

generally constitute good cause to vary the guidelines.

However, the circumstances of a particular case involving

subsequent children might constitute unusual circumstances

justifying variation of support. The court should reduce child

support if the failure to do so would cause substantial hardship

to the “subsequent” children

igor

has a legal obligation to support these children, will not

generally constitute good cause to vary the guidelines.

However, the circumstances of a particular case involving

subsequent children might constitute unusual circumstances

justifying variation of support. The court should reduce child

support if the failure to do so would cause substantial hardship

to the “subsequent” children.

In addition, the interests of the subsequent family may be

taken into account as a defense to a modification action where

an obligor proves he or she has taken a second job or otherwise

increased his or her income specifically to better provide for a

subsequent family. This defense to an upward modification

action should not be allowed to the extent that the prior support

was set at a lower amount prior to the adoption of this rule, or

to the extent that the obligor’s increase in income is limited to

ordinary salary increases.

In

considering

whether

substantial

hardship

to

“subsequent” children exists, or whether the existence of a

subsequent family should defeat a motion to increase child

support, the court should consider the income, including the

potential income, of both parents of the “subsequent” children.

3.

Relocation of Custodial Parent. The relocation of the

custodial parent to a state with a lower cost of living normally

will not justify a reduction in support. The level of Alaska’s

guidelines is comparable to the national average. The fact that

the obligor parent’s income has in effect marginally increased

relative to the children’s living expenses simply enables the

children to be supported at a slightly higher level.

4.

Prior and Subsequent Debts. Prior or subsequent

debts of the obligor, even if substantial, normally will not

justify a reduction in support. The obligation to provide child

support is more important than the obligation to fulfill most

other obligations

marginally increased

relative to the children’s living expenses simply enables the

children to be supported at a slightly higher level.

4.

Prior and Subsequent Debts. Prior or subsequent

debts of the obligor, even if substantial, normally will not

justify a reduction in support. The obligation to provide child

support is more important than the obligation to fulfill most

other obligations. However an obligor parent may attempt to

present evidence which shows the existence of exceptional

circumstances in an individual case.

5.

Income of New Spouse (or other person in the

household). The income of a new spouse of either the

custodial or obligor parent normally will not justify a variation

in support. Either party may attempt to show that exceptional

circumstances exist in a particular case. A parent who does not

work because of the income of a new spouse (or other person

in the household) may be assigned a potential income.

6.

Age of Children. While the costs of raising children

who are very young or who are over about ten years old are

generally greater than raising other children, this in itself does

not justify an increase in support. However, it should be

considered in concert with other circumstances, and a parent

always may seek to establish exceptional expenses in a

particular case.

7.

Denial of Visitation. A denial of visitation may not

be countered with a reduction in support. See AS 25.27.080(c).

Neither may non-payment of support be countered by a denial

of visitation. Courts should use their powers to strictly enforce

the visitation and custody rights of obligor parents.

8.

Property Settlement

ways may seek to establish exceptional expenses in a

particular case.

7.

Denial of Visitation. A denial of visitation may not

be countered with a reduction in support. See AS 25.27.080(c).

Neither may non-payment of support be countered by a denial

of visitation. Courts should use their powers to strictly enforce

the visitation and custody rights of obligor parents.

8.

Property Settlement. A parent may justify variation

of the guidelines by proving that a property settlement in a

divorce or dissolution between the parents provided one of the

parents with substantially more assets than the parent

otherwise would have been entitled to, that this inequity was

intended to justify increasing or decreasing child support, and

that this intent specifically was stated on the record. Any such

change in monthly child support may not exceed the actual

excess of the property settlement apportioned over the minority

of the child.

However, courts should not approve in the first instance

unequal property settlements which are meant to increase or

decrease child support payments. “Property divisions are final

judgments which can be modified only under limited

circumstances, whereas child support awards can be changed

periodically under much more liberal standards. One should

not be a trade-off for the other.” Arndt v. Arndt, 777 P.2d 668,

(Alaska 1989)

9.

Overtime Income. In most cases income from

overtime or a second job will be counted as adjusted annual

income under Rule 90.3(a). However, the court has discretion

not to include this income when, for example, the extra work is

undertaken to pay off back child support.

C. Low Income of Obligor. Paragraphs (a) and (b) of

the rule must be applied even in low-income situations

Alaska 1989)

9.

Overtime Income. In most cases income from

overtime or a second job will be counted as adjusted annual

income under Rule 90.3(a). However, the court has discretion

not to include this income when, for example, the extra work is

undertaken to pay off back child support.

C. Low Income of Obligor. Paragraphs (a) and (b) of

the rule must be applied even in low-income situations.

However, in a paragraph (a) [primary custody] calculation and

in the first stage of a paragraph (b) [shared, divided or hybrid

custody] calculation, if the calculations result in a support

amount below $50.00 per month, a minimum support amount

of $50.00 per month ($600 per year) must be set. This $50.00

minimum support applies for all children, not to each child

separately. The minimum level may be reduced if an extended

visitation credit is granted under Rule 90.3(a)(3). This

minimum support amount does not apply to final support

amounts for shared, divided, or hybrid custody entered under

Rule 90.3(b).

D. High Income of a Parent. Rule 90.3 provides that

the percentages for child support will not be applied to a

parent’s adjusted annual income of over $138,000. An

additional award may be made only if the other parent is able

to present evidence which justifies departure from this general

rule. The standard of proof for a departure is preponderance of

the evidence, unlike the higher standard of clear and

convincing evidence required for a showing of manifest

injustice under exception (c)(1). The factors which the court

should consider when making an additional award in high

income cases are specified in the rule.

E. Retroactive Establishment.

1.

Retroactive Establishment of Child Support. It will

sometimes be necessary for the court to establish support for a

time when no complaint or petition for support had yet been

served, and there was no other court or administrative order in

effect. The court has determined that Civil Rule 90.3 applies to

such calculations. Vachon v

are specified in the rule.

E. Retroactive Establishment.

1.

Retroactive Establishment of Child Support. It will

sometimes be necessary for the court to establish support for a

time when no complaint or petition for support had yet been

served, and there was no other court or administrative order in

effect. The court has determined that Civil Rule 90.3 applies to

such calculations. Vachon v. Pugliese, 931 P.2d 371, 381–2

(Alaska 1996). However, in some circumstances unfairness

may result from rigid application of the rule. The court should

consider all relevant factors in such a situation, including

whether the obligor was aware of the support obligation,

especially if the obligor had children subsequent to that child.

See also Commentary VI.B.2.

2.

Retroactive Application of Amendments. When

establishing support for a period of time before a complaint or

petition was served, the court should apply the most current

version of the rule, except for portions of the rule that state

dollar amounts. This is because Civil Rule 90.3, unlike most

other court rules, is interpretive. The most current version of

the rule is presumably the most refined interpretation to date of

the statute calling for fair and equitable child support awards.

For example, the credit for prior children living with the

obligor was not found in early versions of the rule, but

nonetheless should be applied when support is being

established. However, the dollar amounts in the rule, such as

the minimum support amount (increased from $40 to $50) and

the income cap (increased over the years from $60,000 to

$138,000), have been revised over time to reflect inflation or

for other reasons. With regard to these amounts, the court

should apply the version of the rule that was in effect in the

month for which support is being calculated.

F. Seasonal Income. In Alaska, seasonal employment

is common

upport amount (increased from $40 to $50) and

the income cap (increased over the years from $60,000 to

$138,000), have been revised over time to reflect inflation or

for other reasons. With regard to these amounts, the court

should apply the version of the rule that was in effect in the

month for which support is being calculated.

F. Seasonal Income. In Alaska, seasonal employment

is common. Obligors employed in such seasonal industries as

commercial fishing, tourism, and construction often earn a

large percentage of their income during only a few months of

the year. It might be easier for some seasonally-employed

obligors to meet their child support obligations if their child

support orders required the bulk of their annual child support

amount to be paid during the months they are employed. Thus,

the rule allows courts the flexibility of ordering unequal

monthly payments, as long as the total annual amount equals

the amount calculated in paragraph (a) or (b) of the rule. The

court should not make such an order unless it finds that the

burden of budgeting for periods of unequal income should be

placed on the obligee rather than the obligor.

The court’s order must specify the annual support amount,

the average monthly support amount, and the amount due for

each month. For example, if the annual child support amount

is $3600, the average monthly amount is $300. Instead of

requiring 12 equal monthly payments of $300, the order could

require payments of $500 per month from April through

September and $100 per month from October through March.

Payments under the order must be set up so that a deficit

situation will not occur. This means that, at any point in time,

the total amount owed under the order (for the entire period the

order has been in effect) must not be less than the amount that

would have been owed for that entire period if no seasonal

adjustment had been made

September and $100 per month from October through March.

Payments under the order must be set up so that a deficit

situation will not occur. This means that, at any point in time,

the total amount owed under the order (for the entire period the

order has been in effect) must not be less than the amount that

would have been owed for that entire period if no seasonal

adjustment had been made. Therefore, in the above example,

if the order is entered in April through September, it can order

$500 monthly payments for the April–September period,

followed by $100 monthly payments for October–March.

However, if the order is entered anytime in October through

March, the order must require $300 payments through March,

then $500 payments from April through October, and then

$100 payments the following October–March.

VII.

HEALTH CARE COVERAGE

A. Health Insurance. Rule 90.3(d) requires that the

court address coverage of the children's health care needs

including expenses not covered by insurance. The court must

require health insurance if the insurance is available to either

party at a reasonable cost. There is a rebuttable presumption

that the cost of health insurance is reasonable if the cost does

not exceed five percent of the adjusted annual income of the

parent who may be required to purchase the insurance. In

determining whether the presumption has been rebutted, the

court should consider any evidence relevant to its conclusion,

including the cost of any health insurance for the children that

either parent was paying before the action was commenced.

This recognizes that a cost that a parent voluntarily paid for a

child’s insurance before an action was commenced was likely a

cost that the parent considered to be reasonable. Additionally,

when evaluating whether the presumption is rebutted, the court

may consider the other parent’s income, other available options

for insurance, and the need for the children to have health

insurance

nced.

This recognizes that a cost that a parent voluntarily paid for a

child’s insurance before an action was commenced was likely a

cost that the parent considered to be reasonable. Additionally,

when evaluating whether the presumption is rebutted, the court

may consider the other parent’s income, other available options

for insurance, and the need for the children to have health

insurance.

The health insurance will be paid by the party to whom it

is available. However, the court must allocate the cost of

insurance between the parties. Note that the cost to be allocated

is limited to that portion of the total cost necessary to insure the

children involved - not the parent, the parent's new spouse or

children of another relationship. If the insurance for the

children also covers other members of the purchaser's family,

and evidence is unavailable on the specific cost of insuring

only the children subject to the order, the cost of covering the

children must be determined by allocating the total cost of

coverage pro rata among all covered family members. See

Rusenstrom v. Rusenstrom, 981 P.2d 558 (Alaska 1999). If

there is no additional cost to the employee for adding children

to the coverage - that is, the cost of coverage is the same

whether there are no dependants or several dependants - no

portion of the cost of coverage may be allocated to the children.

In such cases, no adjustment may be made to the child support

obligation because none of the cost of coverage can be

allocated to the children.

The allocation of the cost of the children's insurance

between the parents should be 50/50 unless the court finds

good cause to change that percentage. A substantial difference

in the parties' relative financial circumstances may constitute

good cause. The rule requires the court to adjust child support

either upward or downward to reflect the allocation. Paragraph

llocated to the children.

The allocation of the cost of the children's insurance

between the parents should be 50/50 unless the court finds

good cause to change that percentage. A substantial difference

in the parties' relative financial circumstances may constitute

good cause. The rule requires the court to adjust child support

either upward or downward to reflect the allocation. Paragraph

(h)(1) provides that payments for health care insurance are

included in deciding whether there has been a 15% change in

support which constitutes a material change of circumstances.

The court must also determine if the health insurance is

accessible. Health insurance is accessible if the plan pays for

health care services reasonably available to the child.

“Accessibility” is broadly applied in the rule. Due to the

geographical expanse of the state, “accessibility” is not limited

to health care services available in the child’s home town or

village; some health care plans will pay for transportation to

receive services from a health care provider in another city. If

the health insurance pays for health care services in another

city and transportation to the city, the insurance is considered

accessible to the children.

B. Uncovered Health Care Expenses. Rule 90.3(d)(2)

provides that the court also allocate reasonable health expenses

not covered by insurance. The rule requires the party who did

not obtain the health care to reimburse the other party within 30

days of receiving the necessary paperwork. The paperwork

should include the medical bill, payment verification, and, if

medical insurance applies, an insurance statement indicating

any uncovered health care expenses. These materials should be

sent to the other party within a reasonable time. The rule should

be read to require prepayment of allowable uncovered medical

cost when prepayment is required by the health care provider

rwork. The paperwork

should include the medical bill, payment verification, and, if

medical insurance applies, an insurance statement indicating

any uncovered health care expenses. These materials should be

sent to the other party within a reasonable time. The rule should

be read to require prepayment of allowable uncovered medical

cost when prepayment is required by the health care provider.

The rule provides that the usual 50/50 presumption does

not apply for any amount in excess of $5,000 per calendar year.

In such a situation, the excess expenses should be allocated

based on the parties' relative financial circumstances during the

approximate time period when the expenses occurred.

C. Definition of Health Care Expenses. Paragraph (f)

defines health care expenses to include medical, dental, vision

and mental health counseling expenses.

VIII. CHILD SUPPORT AFFIDAVIT

AND DOCUMENTATION

A. Affidavit and Documentation Each parent in a

proceeding involving a determination of child support must

provide the court with an income statement, including claimed

deductions, under oath. The rule also requires that the income

statement of a parent be verified with documentation of current

and past income as well as claimed deductions. Suitable

documentation of earnings and claimed deductions might

include paystubs, employer statements, or copies of federal tax

returns. The income statement, with documentation, must be

filed with the party’s first pleading in the action. This first

pleading is the dissolution petition in a dissolution, the

complaint or answer in a divorce, the custody petition or

response in a child custody case under AS 25.20.060, or the

motion or opposition in a motion to modify child support or

motion to change custody. The court may impose sanctions on

a party who does not timely file the income statement with

appropriate documentation. The rule repeats language set out

in Civil Rule 95(a)

issolution, the

complaint or answer in a divorce, the custody petition or

response in a child custody case under AS 25.20.060, or the

motion or opposition in a motion to modify child support or

motion to change custody. The court may impose sanctions on

a party who does not timely file the income statement with

appropriate documentation. The rule repeats language set out

in Civil Rule 95(a). In a default case the court must decide

support on the best available information, but should require

the present party to make reasonable efforts to obtain

reasonably accurate information. The court may use the best

evidence available, including statistics maintained by the

Department of Labor and Workforce Development, to

determine the parent’s total income from all sources.

Income affidavits must be filed even by a parent whose

income is not presently being used to calculate child support.

That parent’s income may be relevant if there is a request by

either parent for a variation under subsection (c), or it may be

needed to determine what percentage of uncovered health care

expenses each parent will pay under subsection (d)(2) or how

much of travel expenses each parent will pay under subsection

(g). In addition, the court may wish to enter an order which

automatically shifts the child support obligation if a child

changes his or her primary residence, as permitted under

Karpuleon v. Karpuleon, 881 P.2d 318 (Alaska 1994).

B. Request for Income Information Paragraph (h) of

the rule allows child support orders to be modified if a material

change of circumstances is shown. There is a presumption

that a change in a parent’s adjusted annual income qualifies as

a ‘material change’ if it would increase or decrease the support

amount by 15 percent. Paragraph (e)(2) of the rule provides an

informal method either parent can use, while a support order is

in effect, to learn whether there has been a large enough

change in the other parent’s income to justify a change in the

amount of child support

change in a parent’s adjusted annual income qualifies as

a ‘material change’ if it would increase or decrease the support

amount by 15 percent. Paragraph (e)(2) of the rule provides an

informal method either parent can use, while a support order is

in effect, to learn whether there has been a large enough

change in the other parent’s income to justify a change in the

amount of child support. This paragraph allows a parent to

send the other parent a written request for documents such as

tax returns and pay stubs showing the other parent’s income

for the prior calendar year (January through December) and the

present. However, the parent making this request must attach

to the request a copy of the same type of documents showing

his or her own income for the prior calendar year, and the

present. This request can only be made once each year. The

parent who receives the request must provide the requested

information within 30 days after the request is made. The

parents can then do the necessary calculations to determine

whether a motion to modify child support should be filed. In

addition, a parent may always use the formal discovery

procedures provided in the other civil rules to obtain income

information from the other parent.

IX. TRAVEL EXPENSES

The court shall allocate any travel expenses that are

necessary to exercise visitation. This allocation should

generally be done on a percentage basis because the actual

costs may not be known or may change. The court should take

care that its allocation of these expenses does not interfere with

a parent’s ability to provide the basic necessities for the

children.

X. MODIFICATION

A. Material Change in Circumstances.

Alaska law allows the modification of support orders

upon a material change in circumstances. A significant

amendment to Rule 90.3 constitutes a material change in

circumstances pursuant to AS 25.24.170(b)

e that its allocation of these expenses does not interfere with

a parent’s ability to provide the basic necessities for the

children.

X. MODIFICATION

A. Material Change in Circumstances.

Alaska law allows the modification of support orders

upon a material change in circumstances. A significant

amendment to Rule 90.3 constitutes a material change in

circumstances pursuant to AS 25.24.170(b). Rule 90.3(h) states

that a material change in circumstances will be presumed

whenever the change would result in an increase or decrease of

support under the rule of at least 15%. However, a support

order can provide that the support obligation will be adjusted

without further order of the court upon a change of health

insurance costs and notice of the change to the other parent

(and CSSD if CSSD is handling collections).

See Flannery v. Flannery, 950 P.2d 126 (Alaska 1997) ,

concerning

what

constitutes

a

material

change

of

circumstances when the parties by agreement originally set

support at a level higher than would have normally been

required under Rule 90.3.

A temporary reduction in income normally will not justify

an ongoing modification reducing child support. However, a

temporary, unforeseen, and involuntary reduction in income

may justify a temporary reduction in support subject to the

retroactivity provisions in Rule 90.3(h)(2). In considering such

a reduction, the court should consider the needs of the children,

the ability of the other parent to provide support, liquid assets

available to provide support, and the future earning capability

of the obligor parent. See Flannery v. Flannery, 950 P.2d 126,

133 (Alaska 1997); Patch v. Patch, 760 P.2d 526, 530 (Alaska

1988).

Federal law, recognized in AS 25.24.170(b) and AS

25.27.193 and referenced in a Note to Civil Rule 90.3(h)(1),

appears on its face to require allowing modifications every

three years without a showing of a material change in

circumstances. See 42 U.S.C. 666(a)(10)(A)(iii)

igor parent. See Flannery v. Flannery, 950 P.2d 126,

133 (Alaska 1997); Patch v. Patch, 760 P.2d 526, 530 (Alaska

1988).

Federal law, recognized in AS 25.24.170(b) and AS

25.27.193 and referenced in a Note to Civil Rule 90.3(h)(1),

appears on its face to require allowing modifications every

three years without a showing of a material change in

circumstances. See 42 U.S.C. 666(a)(10)(A)(iii). However, in

response to questions from states, the federal Office of Child

Support Enforcement (OCSE), the federal agency that

enforces the federal child support law and promulgates

implementing regulations, clarified that federal law allows

states to apply rules and regulations that require a

reasonable quantitative standard for modifying a child

support order. See OCSE Action Transmittal OCSE-97-10,

pages 28–31. Thus, in Alaska, the 15% presumptive

threshold continues to apply to a request to modify a child

support order.

B. No Retroactive Modification.

The Omnibus Budget Reconciliation Act of 1986, P.L.

99–509, Section 9103(a) (the Bradley Amendment), prohibits

retroactive modification of child support arrearages. Rule

90.3(h)(2) is intended to restate this prohibition, including the

exception allowed by federal law for modification during the

pendency of a modification motion. Pursuant to this rule, the

notice of petition for modification sent by the Child Support

Services Division triggers the legal process for modification of

child support awards and thus an increase or decrease of

support back to the date of this notice does not constitute

retroactive modification.

The prohibition against retroactive modification limits

both requested decreases and increases in child support. See

Prohibition of Retroactive Modification of Child Support

Arrearages, 54 Fed. Reg. 15,763 (1989). Thus, either the

custodial or the obligor parent should promptly apply for a

modification of child support when a material change in

circumstances occurs

retroactive modification.

The prohibition against retroactive modification limits

both requested decreases and increases in child support. See

Prohibition of Retroactive Modification of Child Support

Arrearages, 54 Fed. Reg. 15,763 (1989). Thus, either the

custodial or the obligor parent should promptly apply for a

modification of child support when a material change in

circumstances occurs.

See Section VI.(B).(2) of the commentary as to the extent

support of a “subsequent” family may be used as a defense to a

modification action to increase child support.

C. Preclusion.

The sometimes harsh effect of the rule against retroactive

modification may be mitigated by the preclusion provision of

Rule 90.3, which limits collection of a support arrearage in

limited and appropriate cases. Preclusion may be applied to

limit collection by a parent’s assignee, such as the child

support services agency of this or another state. Clear and

convincing evidence is required to support a finding of

preclusion.

Preclusion may apply only in cases in which the obligor

assumed primary physical custody of a child for the time

period for which the obligee now attempts to collect support.

The time period must be more than six consecutive months.

Preclusion does not apply in cases in which the proportion of

shared custody changed or when there is a shift from primary

physical custody to shared custody. Preclusion may apply

when the obligor assumes primary physical custody of any

number of the children on which the support obligation in

arrearage is based. Murphy v. Newlynn, 34 P.3d 331 (Alaska

2001).

As an alternative to preclusion, AS 25.27.020(b) may

allow a reduction of support owed to the other parent when the

obligor assumes custody of one or more of the children. See

State v. Gause, 967 P.2d 599 (Alaska 1998).

XI. THIRD PARTY CUSTODY

A

ysical custody of any

number of the children on which the support obligation in

arrearage is based. Murphy v. Newlynn, 34 P.3d 331 (Alaska

2001).

As an alternative to preclusion, AS 25.27.020(b) may

allow a reduction of support owed to the other parent when the

obligor assumes custody of one or more of the children. See

State v. Gause, 967 P.2d 599 (Alaska 1998).

XI. THIRD PARTY CUSTODY

A. Support Owed to the Third Party

If the state or another third party entitled to child support

has custody of all of a parent’s children, child support is

calculated in the same way as it would be calculated in other

cases. In other words, support is equal to the parent’s adjusted

annual income multiplied by the relevant percentage in

paragraph (a)(2) based on the number of children.

However, this basic calculation does not work when the

state or other third party has custody of only some of a parent’s

children. In this case, the rule provides that the total support

calculation (as calculated for the total number of the parent’s

children) be reduced to only the proportion of the parent’s

children of whom the third party has custody. For example, the

third party might have custody of two of a parent’s three

children. Support would be calculated as the parent’s adjusted

annual income, multiplied by .33 (the relevant percentage for

three children), multiplied by 2/3 (the third party has custody

of two of the parent’s three children). Note that the calculation

only takes into account children which are either in third party

custody, substantially supported by the parent, or living with

the parent. A child of the parent, for example, living with a

relative without substantial support would not be counted in

the above calculation.

The deduction for prior children in (a)(1)(C) and (D)

would not apply because these children are already taken into

account as children living with or supported by the parent.

B

party

custody, substantially supported by the parent, or living with

the parent. A child of the parent, for example, living with a

relative without substantial support would not be counted in

the above calculation.

The deduction for prior children in (a)(1)(C) and (D)

would not apply because these children are already taken into

account as children living with or supported by the parent.

B. Support Owed Between the Parents

There will be instances when a third party is entitled to

support for some of the parent’s children, but one or both

parents retain primary or shared custody of their remaining

children. In this case, child support between the parents should

be calculated using Rule 90.3 based on the pro rata support

percentages for the children not in third party custody. After

that calculation, any support owed may be offset with amounts

owed under 90.3(i)(1) to minimize transactions.

For example, a father might have custody of two children

and the mother’s sister might have custody of, and be entitled

to support for, the parents’ third child. Both parents in this

example have a $45,000 adjusted annual income. Under Rule

90.3(i)(1), the sister is entitled to $4,950 per year from the

father [$45,000 (annual income) x 33% (percentage for three

children) x 1/3 (custodian has one of three children)]. The

sister also is entitled to the same amount from the mother. (The

parents’ incomes are the same and the mother supports the

children living with the father.)

The pro rata percentage for each child under 90.3 (a)(2)

would be 33% (three children), 3 or 11% per child. Under

90.3(i)(2), the mother owes the father $9,900 per year in

support ($45,000 x 22%). If the support amounts are offset, the

mother will owe her sister $9,900 per year and the father

$4,950 per year. The court could decide, however, that it was

preferable not to offset the support amounts because one of the

parents might not pay the third party.

XII

(three children), 3 or 11% per child. Under

90.3(i)(2), the mother owes the father $9,900 per year in

support ($45,000 x 22%). If the support amounts are offset, the

mother will owe her sister $9,900 per year and the father

$4,950 per year. The court could decide, however, that it was

preferable not to offset the support amounts because one of the

parents might not pay the third party.

XII. SUPPORT ORDER FORMS

Subsection (j) was formerly Civil Rule 67(b).

XIII. DEPENDENT TAX DEDUCTION

Waggoner v. Foster, 904 P.2d 1234 (Alaska 1995),

provides that tax deductions for the children should be

allocated based on the child’s best interests. AS 25.24.152

places some limits on giving the deduction to the parent with

less physical custody. Federal income tax law also may limit

who can take the deduction.