New York State Bar Association

Committee on Children and the Law

January 27, 2006

 

 

CHILD SUPPORT AND SHARED CUSTODY

Judith M. Reichler, Esq.

 

 

INTRODUCTION

 

            This article explores the ways in which a court can establish a child support obligation, pursuant to the Child Support Standards Act (“CSSA”), when the parents share time and responsibilities for their children beyond what would be expected if one had sole custody and the other had visitation.  Keeping in mind that the Governor and the sponsors of the Child Support Standards Act expected the new legislation to protect children from unfairly bearing the economic burden of parental separation1 and to allow them to share in the economic status of both their parents,2 children who share households with their parents should have roughly equivalent standards of living in both households.  We will demonstrate that the calculations obtained through use of the CSSA may finally make this possible, where an otherwise noncustodial parent is willing to share in child raising time and responsibilities.

            For purposes of this article,  we will use the term “shared custody” to refer to situations where the parents share approximately equal time and responsibilities for their children, whether it is called “joint custody,” “shared custody,” or “extraordinary visitation.” 

 

EXTENDED OR EXTRAORDINARY VISITATION

            When one parent has sole legal and physical custody of the children, the other parent is expected to exercise what might be called “normal” visitation, that is, two days and an overnight every other weekend, with one evening each week, with a week or two in the summer.  When the noncustodial parent spends more time with the children than this, or in some way commits to additional responsibilities for the children, this might be called “extraordinary,” or “extended” visitation.

 

JOINT CUSTODY

            In its simplest terms, "joint custody" means "joint legal custody."  During an ongoing marriage, parents have joint custody.  Both parents have a legal right to custody, and the right of one parent to make decisions concerning the children is not paramount.  After divorce, the parties may continue to have joint legal custody, but not necessarily equal physical custody. 

            Parents who feel they can share decisions and responsibilities for their children can agree to joint custody.  Although the New York courts have the authority 3 to entrust custody of a child to both parents jointly, there is no “right” of joint custody which can be imposed on either parent and ordered by the court.4  New York's highest court has held that

joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion [citations omitted].  As a court-ordered arrangement imposed upon already embattled and embittered


parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.5

 

            Because joint custody requires cooperation by the parents, and a recognition that their primary concern should be the best interests of the children, joint custody is not awarded where mutual cooperation in the care and upbringing of the child appears unlikely,6 and it is rarely awarded when it is opposed by either parent.7

           

SHARED CUSTODY

            Joint legal custody does not necessarily mean that the child care responsibilities of the parents are truly "joint," or that the time with each parent will differ from sole custody with visitation.  The issue of time spent with each parent is usually decided separately from legal custody and is often referred to as shared custody when the amount of time spent with each parent is substantial.8  Shared custody only means that the children reside some of the time with each parent.  It also implies a greater commitment on the part of both parents than does the term "visitation,” both in time and in responsibilities for the children.

            For the most part, shared custody works best if all these elements are present: 

1.         the parents have little difficulty agreeing on what is best for their children;

 

2.         the children spend approximately the same amount of time with each parent;

 

3.         the children spend approximately the same kind of time with each parent;

 


4.                                                      both parents have approximately the same responsibilities for the children; and

 

5.         the combined income of the parents puts them in a relatively high income bracket.

 

            Shared custody is much more expensive than sole custody with visitation, and not all couples are financially able to share custody, even if they wish to do so.  It requires the ability to provide a bedroom in each house for the children, full sets of clothing, bedding, and school supplies in each household, not to mention duplicate bicycles and sports equipment.  In addition, neither parent is able to take a job that requires travel or extensive overtime; therefore, income possibilities are reduced.  Both parents need to have the time, and funds, to drive the children to music lessons and sporting events, and to go to meetings with teachers, as well as to provide other staples of parenthood, such as ingredients for bake sales and materials for costumes.

 

 

HOW SHARED CUSTODY CAN AFFECT CHILD SUPPORT      

            Often, even if the parents have joint legal custody, one of the parents assumes physical custody of the children, and the other has designated periods with them.  In practice, the arrangement looks very much like sole custody with one parent and time-sharing that is virtually identical to most visitation schedules.  Because it is called "joint custody," however, little, or no, provision may be made for child support. One study found that child support awards under an order of joint custody are given less frequently and for smaller amounts than when sole custody is ordered.  Yet, the children were reported as spending more than two-thirds of the time with one parent (usually the mother), even under joint residential custody.

      Where there was a support order, the amount of time spent with the parent paying support averaged only 23 weekdays and 58 overnights per year.  Although this amount of contact with the other parent would not be an unusual amount of visitation in a sole custody/visitation arrangement, the support payment for those with joint residential custody who were ordered to pay support averaged 14 percent of net income.  Where the mothers had sole custody, the fathers were ordered to pay an average of 26 percent of their net income 9  In such a situation, the parent with the real physical custody -- and the children -- could be left without adequate support in the name of "joint custody."

            With every good intention, even when there is a sharing of custody, it is not uncommon for one parent to be the one who "notices" that the children need things, or has the time, or inclination, to take them shopping, bake cookies for class programs, and put together costumes for school plays, while the other is less sensitive to these needs.  This will, over time, change the balance of expenditures, and it is for this reason that, before ordering shared custody, one court required that

[t]here should also be a showing of involvement and commitment to the child sufficient to provide at least the promise that the parent seeking joint custody will follow through with the obligation that entails over the long haul.10

            It is also easy for the arrangement to deteriorate over time, eventually resembling "sole custody with visitation."  If that occurs, the parent who ends up with more physical custody, or more responsibilities, than originally established will need to return to court so the order can be conformed to the reality.

            Even where the parents actually do share equal time and expenses for the children -- or where each parent has primary responsibility for one or more children, but one parent has a much smaller income than the other -- it is not appropriate to simply eliminate child support from the picture.

            Occasionally, an arrangement for shared custody will provide that each parent is to have equal responsibilities for child care and equal time with the children.  If they have equal incomes and assets, there may be no need for child support by one parent to the other.  If they have unequal incomes or assets, however, child support needs to be paid so the child doesn't have a substantially different standard of living at one parent's home than she does at the other's.

 

 

 

APPLICATION OF THE CSSA TO SHARED CUSTODY

            The CSSA is applicable to joint custody arrangements insofar as it provides for a determination of combined parental income.11  In addition, the requirements for financial disclosure by both parties12 apply, as do the requirements for agreements (e.g., the parties must be provided with a copy of the child support standards chart, if not represented by attorneys13 and advised of the provisions of the CSSA, and both the agreement and the order must specify the amount the support would have been and the reason that amount is not provided14).

            With regard to the calculation of child support, however, the CSSA speaks of the "custodial parent" and the "noncustodial parent" and requires the noncustodial parent to pay child support to the custodial parent.15  If an arrangement is called "joint custody," but really resembles a solecustody/visitation schedule, the CSSA calculations would apply, notwithstanding the nomenclature.  If the noncustodial parent incurs extraordinary expenses in exercising visitation, or has expenses during extended visitation that substantially reduce the custodial parent’s expenses, that is also provided for in the CSSA calculations.16                           

 

            Some have argued that the CSSA could be stretched to apply to shared custody by calculating each parent's obligation, and requiring the parent with the larger obligation to pay the difference to the parent with the smaller obligation.  This calculation is sometimes referred to as the “offset” method, and its use has been suggested even where the actual time spent with the children, and additional day-to-day expenses and responsibilities, do not fall equally between the parents.

            Even if the time spent with the children were to be precisely equal, however, this method of calculating the child support is not appropriate because it does not recognize that, as discussed above, it is simply more expensive to have joint physical custody than it is to have the children live primarily with one parent and visit occasionally with the other.  Shared custody -- reliant, as it is, on the ability of both parents to provide a suitable home and suitable care for the child -- is out of range for couples with modest incomes.  It is also necessary that the parents continue to live within easy travel distance from each other, and desirable that the housing conditions be similar.

            Since there are additional costs associated with shared custody, using the percentage calculations in the CSSA -- and then offsetting one obligation against the other -- would inevitably lead to inadequate support being paid to the parent with the lesser amount of income.  Let’s look at an example:

Income of parent #1 (after FICA)                     $20,000/year

Income of parent #2                                         $60,000/year

Combined parental income                                $80,000/year

Share for parent #1: 1/4

Share for parent #2: 3/4

Basic child support obligation                            $20,000/year

Obligation for parent #1                        $5,000/year

            Obligation for parent #2                        $15,000/year

 

            If we offset the obligations, parent #1 would receive $10,000 per year in child support from parent #2. The end result of the offset method is that parent #1 (with the children half the time) has household income of $30,000, while parent #2 (who also has the children half the time) retains household income of $70,000.  It is clear, then, that the lower-income parent should receive more support than the "offset" method would yield, if, as the sponsors of the CSSA intended, the children are to be protected from unfairly bearing the economic burden of parental separation and allowed to share in the economic status of both their parents.  To achieve this in shared custody cases, we need to see that the children  have roughly equivalent standards of living in both households.

            New York’s Court of Appeals, in Bast v. Rossoff, recognized the potential for problems with the offset method and firmly established that “the basic framework created by the legislature [in creating the CSSA] can accommodate shared custody cases,” and “neither the legislative history nor the statute itself suggest that the legislature chose to deviate from the initial three-step process in shared custody cases.”17  Step one is the court’s calculation of the combined parental income.  Second, the court multiplies that figure, up to $80,000, by a specified percentage based upon the number of children in the household and then allocates that amount between the parents according to their share of the total income.  Third, where the combined parental income exceeds $80,000, the court determines the amount of support for combined parental income in excess of $80,000 through consideration of the “paragraph (f) factors.18

            The court, in Bast, soundly rejected any proportional offset formula, reasoning that the method “fails to account for the generally accepted fact that shared custody is more expensive than sole custody” because, among other things, of the necessity for duplication of certain household costs in each parent’s home.19  Use of a proportional formula “can greatly reduce the child support award and deprive the child of needed resources.”20   Child support in a shared custody case, therefore, should be calculated as it is in any other case, through the same three-step method for determination of the basic child support obligation.  If the court finds that the resulting amount is unjust or inappropriate because of the custody arrangement of the parents, the “paragraph (f)” factors may be utilized to fashion an appropriate award.21

            In most instances, the court continues, “the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time.”22  The Court of Appeals has never been presented with a case where the parents have identical time with the children.  The Third Department, in Baraby v. Baraby,23 acknowledged that Bast did not specifically address how to apply the CSSA in cases of equal shared custody, and held that, in order to effectuate the goals of the legislation and allow children to realize the maximum benefit of their parents’ resources:

the parent with the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support regardless of the labels employed by the parties.24

 

 

APPLICATION OF THE CSSA TO SPLIT CUSTODY

            The courts continue to grapple with situations where one parent has custody of one or more children, while the other parent has custody of the other(s), which is sometimes called “split” custody.  In spite of the clear warning of the Court of Appeals, in Bast v. Rossoff, that a proportional offset method has the potential of depriving children of much-needed support, this method continues to be utilized when custody of the children is split between the parents.  Unlike the pre-Bast case of Kerr v. Bell,25 however, the courts usually go on to indicate that this amount may be adjusted if found to be unjust or inappropriate.

            A New York County Supreme Court, for example, after affirming that the CSSA applies to split custody cases, calculated the obligation by applying the appropriate percentage to each parties’ CSSA income and ordering the payment of the net difference.26  After doing that, however, the court stressed that, if the application of the statutory formula would result in an inadequate amount of support for either household, the court may, based on the statutory factors, declare the result unjust or inappropriate and fix an appropriate award.27

 

            The Court of Appeals also has not yet ruled on establishing child support in a split custody case, but, based on the analysis in Bast, it is likely the court would not use the offset method.  Instead, the court would determine which parent has the higher income, calculate the support obligation for that parent, and order that parent to pay support to the other – subject to application of the factors if that amount is determined to be unjust or inappropriate.

 

ADJUSTING THE AMOUNT IF IT IS FOUND TO BE UNJUST OR INAPPROPRIATE

            Whenever a court calculates a parent’s child support obligation, whether there is sole custody or shared custody, it has the option to determine whether the amount would be unjust or inappropriate, based on consideration of the so-called “paragraph (f) factors.”28  Following is a brief discussion of ways in which a few of the factors might cause a court to deviate from the calculated amount.

            Factor 3: the standard of living the child would have enjoyed had the marriage or household not been dissolved.  Since the child support guidelines take into account the incomes of the parties, they also, to some extent, address the standard of living of the child.  An amount could, however, be increased if , even after the indicated amount was paid, a child would have significantly different standards of living from household to household or, in the case of split custody, one child would live in a household with a different standard of living from the household in which a sibling resides.  Similarly, if the standard of living in one parent’s household is enhanced by assets (say, because of a summer vacation home), the court might increase its order to allow the children comparable amenities in each household.

            Factor 5: the non-monetary contributions that the parents will make toward the care and well-being of the child.  It might be assumed, because children are living equally with each parent, that each parent is taking on an equal share of the responsibilities.  Where, however, in spite of an equal-time arrangement, one parent bears more of the day-to-day responsibilities, such as parent conferences, doctor’s visits, school bake sales, arranging lessons and play dates, or taking time off work for a sick child, the amount of support to that parent may be increased to make up for the loss of work and/or time to carry out the additional responsibilities.

            Factor 9: extraordinary visitation expenses or extended visitation.  This factor would allow a deviation from the established amount for extended visitation, but only if the parent seeking a reduction can show that he or she has expenses connected to the extended visitation that substantially reduce the expenses the other parent has for the children. At least one court has determined that custody-sharing constitutes extended visitation under the CSSA.29  Only after establishing the support obligation of the noncustodial parent (designated as the one with the lesser amount of time with the child or the one with the higher income) may the court continue to determine if that amount would be unjust or inappropriate, through consideration of this factor.  In Carlino, the trial court had not made such a finding, and the case was remanded for a determination of the specific expenses the noncustodial parent incurs in caring for the child and to what degree those expenses have substantially reduced the other parent’s expenses for the child.

 

 

SOME EXAMPLES

              There have always been some inequities in the amounts of child support calculated under the CSSA when the children are cared for primarily by one parent, while the other only visits.  Even after payment of child support, the custodial parent and children often had a substantially lower standard of living than the noncustodial parent, only exaggerated by the non-monetary contributions made by the custodial parent, such as accompanying the child to and from school and extra-curricular activities, taking the child to the doctor, home education, trips, amusements, and homework assistance.  Thankfully, however, when both parents are able to share equally the time and responsibilities of the children, the guidelines begin to make sense, and the economic inequity begins to be reduced.

            Example 1 (sole custody with visitation).  Here’s an example, where there is a custodial parent and a noncustodial parent, not shared custody:

            Income of parent #1 (after FICA)                     $20,000/year

Income of parent #2                                         $40,000/year

Combined parental income                                $60,000/year

Share for parent #1: 1/3

Share for parent #2: 2/3

Basic child support obligation                            $15,000/year

Obligation for parent #1                        $5,000/year

Obligation for parent #2                        $10,000/year

            Parent #1 (the custodial parent) would receive $10,000/year in child support from parent #2 (the noncustodial parent).  The end result, after receipt of child support, is that parent #1 (with two children at home) has household income of $30,000 (or $10,000 per capita), while parent #2 (with no children in the household) also has household income of $30,000, but for only one person (and some visitation expenses).

            Example 2 (custody equally shared).  If the parents were to share equal time and responsibilities for the children, and the parent with the greater income (parent #2) paid the same amount of child support as above, each household would have the same per capita income, and the children would have the same standard of living in both households.  This would be a good result, so long as the amount of child support to be paid were not reduced substantially.

            Example 3 (disparate incomes).  The differences become more dramatic as the incomes diverge.  Let’s look at a family where the income of the parents is more disparate:

            Income of parent #1                                         $20,000/year

Income of parent #2                                         $60,000/year

Combined parental income                                $80,000/year

Share for parent #1: 1/4

Share for parent #2: 3/4

Basic child support obligation                            $20,000/year

Obligation for parent #1                        $5,000/year

Obligation for parent #2                        $15,000/year

 

            The end result, after receipt of $15,000 child support, is that parent #1 (with the children one-half time) has household income of $35,000, while parent #2 (with the children one-half time) retains household income of $65,000.  This amount should certainly not be reduced since, even paying the full guidelines amount, the children do not have equivalent standards of living in the two households.

            Example 4 (split custody with offset).  Just as with shared custody, there is every reason to utilize the same method for establishing support when the children are split between the parents.  The offset method always results in inadequate support for the children in the lower income household.  Here’s what happens when an offset is applied in a split custody case with three children (two with parent #1 and one with parent #2):

            Income of parent #1                                         $20,000/year

Income of parent #2                                         $60,000/year

Combined parental income                                $80,000/year

Share for parent #1: 1/4

Share for parent #2: 3/4                                                           

Basic child support obligation for one child:                   $13,600

                        Parent #1 obligation to parent #2 (1/4)                          $3,400

            Basic child support obligation for two children   $20,000

Parent #2 obligation to parent #1 (3/4)                          $15,000

 

            If we offset, the end result, after payment of $11,600 child support, is that parent #1 (with two children) has household income of $31,600 (or $10,533 per capita), while parent #2 (with one child in the household) retains household income of $48,400 (or $24,200 per capita).

            Example 5 (split custody with no offset).  Even if we don’t offset, after payment of $15,000 in child support, parent #1 will have $35,000 (or $11,667 per capita), while parent #2 will retain $45,000 (or $22,500 per capita) -- almost double that in parent #1's household.  Even when the full guidelines amount is paid, the children do not have equivalent standards of living in the two households.

 

CONCLUSION

            Determining child support when there is a custodial parent and a noncustodial parent is often difficult to do.  With the increasing incidence of shared custody, and its complications, the courts are faced with even more difficult decisions.  The Court of Appeals, in Bast v. Rossoff has lead the way, though, and made it clear that every child support order starts with a determination that one parent will be paying the other (unless they have the same income and share child care responsibilities and time equally).

 

            One way to decide whether or not to order the calculated amount, in shared or split custody cases, is to examine the two households and attempt, as much as possible, to honor the hopes of the sponsors of the CSSA by protecting children from unfairly bearing the economic burden of parental separation and allowing them to share in the economic status of both their parents.

            As admirable as it is when both parents wish to take equal responsibility for the time and care of their children, however, shared or split custody may be out of the reach of many families because it is so expensive.    

 


 

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Last updated January 12, 2006



     1Memorandum of sponsors, L.1989, Ch.567.

     2Governor’s approval memorandum, L.1989, Ch.567.

     3     This authority is derived from DRL 240(1).  See Braiman v. Braiman, 44 NY2d 584 (1978).

     4     See Voelker v. Keptner, 156 AD2d 1014 (4th Dept 1989).

     5     Braiman v. Braiman, 44 NY2d 584, 589-590 (1978).  See also Bliss v. Ach, 56 NY2d 995 (1982).

     6     See Bliss o/b/o Ach v. Ach, 56 NY2d 995 (1982); Golub v. Ganz, 802 NYS2d 526 (3d Dept 2005) (defendant's demonstrated inability to act and communicate in a mature and civilized fashion when it comes to his relationship with plaintiff makes joint custody not a workable option for these parents); Reisler v. Phillips, 298 AD2d 228 (1st Dept 2002) (ample evidence supports the finding of acrimony making joint custody inappropriate); Fowler v. Rivera, 296 AD2d 409 (2nd Dept 2002)(for joint custody to be awarded, the parties must be capable of cooperating in making decisions on matters relating to the care and welfare of the children); Sumiya v. Murtari, 275 AD2d 928 (4th Dept 2000) based upon the parties' acrimonious relationship and inability to communicate in a civil manner, a change from sole custody to joint custody was not warranted).  See also Carr v. Carr, 171 AD2d 776 (2d Dept 1991) (joint custody inappropriate where there is an inability to set aside differences for the good of the children); Trapp v. Trapp, 136 AD2d 178 (1st Dept 1988); Trolf v Trolf, 126 AD2d 544 (2d Dept 1987) (an award of joint custody is not appropriate when the parents are unable to put aside their differences for the good of their children).

     7     A court can order joint custody, over the opposition of one of the parents, but only if it appears there is not such severe antagonism that joint custody would be improper.  See Juneau v. Juneau, 206 A.D.2d 647 (3rd Dept 1994) (while the record indicates that the parties argued and bickered incessantly during their marriage, there is no evidence that they are so embattled and embittered that they will be unable to cooperate to the extent necessary to provide their children with proper care);  Guarnier v. Guarnier, 155 AD2d 744 (3d Dept 1989) (despite the marital discord and potential animosity associated with the divorce, the parties have a history of arriving at mutually acceptable agreements regarding their children).

     8Shared physical custody is sometimes referred to as joint custody, but we will reserve that term to refer to joint legal custody.

     9     Pearson & Thoennes, Child Custody, Child Support Arrangements and Child Support Payment Patterns, REPORT TO U.S. DEPT. OF HEALTH & HUMAN SERVICES, OFFICE OF CHILD SUPPORT ENFORCEMENT (1984).

     10Cheryl A.D. v. Jeffrey G.O., 133 Misc 2d 663, 665 (Fam Ct Onondaga County 1986). 

     11DRL 240(1-b)(b)(4) and (5); FCA 413(1)(b)(4) and (5).

     12DRL 249(1-b)(j); FCA 413(1)(j).

     13DRL 240(1-b)(i); FCA 413(1)(i)

     14DRL 140(1-b)(h); FCA 413(1)(h).

     15DRL 240(1-b)(f); FCA 413(1)(f).

     16The CSSA calculations provide for a deviation from the basic child support obligation where the noncustodial parent (i) incurs extraordinary expenses in exercising visitation or (ii) incurs expenses in extended visitation, provided the custodial parent’s expenses are substantially reduced as a result.  DRL 240(1-b)(f)(9) and FCA 413(1)(f)(9).

     17Bast v. Rossoff, 91 NY2d 723, 729 (1998).

     18DRL 240(1-b)(f); FCA 413(1)(f).

     1991 NY2d at 730.

     2091 NY2d at 731.

     21

91 NY2d at 732.  See also Gillette v. Gillette, 8 AD3d 1102 (4th Dept 2004); Gainey v. Gainey, 303 AD2d 628 (2nd dept 2003).

     2291 NY2d at 728.

     23250 AD2d 201 (3d Dept 1998).

     24250 AD2d at 204.  See also, Carlino v. Carlino, 277 A.D.2d 897 4th Dept 2000).

     25178 AD2d 1 (3rd Dept 1992).

     26Daley v. Daley, 2002 N.Y. Misc. LEXIS 761 (Supreme Ct. NY County 2002).

     27See also McMillin v. Miller, 15 AD3d 814, 817 (3rd Dept 2005).

     28DRL 240(1-b)(f); FCA 413(1)(f)

     29Carlino v. Carlino, 277 AD2d 897 (4th Dept 2000).