CALCULATING CHILD SUPPORT WITH 50/50 JOINT CUSTODY
By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS & Long Island)
In an earlier article we wrote about the Court of Appeals decision in
Bast v. Rossoff 91 N.Y.2d.723. In this case, the Court held that shared
custody arrangements do not alter the scope and methodology of the Child Support
Standards Act (CSSA).
The act, passed in 1989, states that the three step statutory formula for
child support must be applied in all shared custody cases.
The three step formula for
calculating child support is:
- Calculate the combined income and each parents pro-rata share of same.
- Use the correct percentage of total income CSSA says should be devoted
to child support i.e. 17% for one child, 25% for two children, 29% for
three children, 31% for four childrenand 35% for five or more children
- Calculate each parents share thereof
The non-custodial parent is directed to pay a pro-rater share of the support
obligation unless the court finds the amount to be unjust or inappropriate
based on consideration of specified factors in Section F of CSSA.
The problem is that Bast (in Bast v. Rossoff) does not specifically address
how to apply the CSSA in cases of equal shared custody. Indeed, the Bast
case did not recognize cases of equal shared custody.
In Equal Shared Custody, Who Is the Custodial Parent?
The Appellate Division, 3rd Department did address the shared custody issue
in Baraby v. Baraby 250 A.D 2d 2201, and the Appellate Division,4th Department
addressed it again in Carlino v. Carlino 277 A.D. 22d 897.
In Baraby, the third department stated the parent with the larger income
would be deemed the non-custodial parent for purposes of calculating support
under CSSA. The parent with the non-custodial designation must be directed
to pay his or her pro rata share of the child support obligation to the
other parent unless the statutory formula yields a result that is unjust
or improper. In that situation, the trial court can resort to the "Paragraph
F" factor in CSSA and order an amount that is just and appropriateunder
The 4th department in Carlino, citing the Baraby case, which said in a
50/50 shared custody arrangement, if the parent with the larger income
demonstrates that expenses incurred in having equal time substantially
reduces the cost the parent with the lesser income has to bear as non-custodial
parent, then the court should find that it would be unjust or inappropriate
to award the statutory amount. Instead, the court should determine a proper
support amount based on the specific expenses and the degree such expenses
have been substantially reduced as a result of the time spent with the
non-custodial parent. That court, as in Baraby, also remanded the case
to the Trial Court for a hearing to calculate support in accordance with
its decision. It found the Trial Court record lacked sufficient requisite
information necessary to make the calculation.
What Does This Mean To You?
If you live in the first or second Judicial Department, chances are the
principles laid out in Baraby as well as in Carlino will be adhered to.
This further means that if you are the larger wage earner and thus the
non-custodial parent for purposes of CSSA in a case of equal time, then
you should be prepared to demonstrate how your time with the child reduces
the custodial parent's expenses for things such as, but not limited
to, food, electricity, telephone, transportation, entertainment, etc.
Prior to these decisions, Bast made clear the statutory formula should
be applied and courts were quite reluctant to deviate from the Act on
the principle of "unjust or inappropriate". These two cases
may well have provided a platform for arguing that people with close to
50/50 time should obtain the same treatment of analyzing to what extent
the custodial parent's expenses are reduced by the substantial time
the non-custodial parent spends with the child.
What If You Do Not Have 50/50 Time, but More Than Standard Visitation Time?
The unknown question at this point is how far the courts, as a parochial
matter, will extend their willingness to deviate from CSSA based upon
the time each parent spends with the child. An environment has been created
where individual treatment of each case, based on its unique set of acts,
has been discouraged in favor of applying a uniform standard.
Up to this point, courts have been reluctant to find that the statutory
formula produced a result that is unjust or improper, and therefore, to
permit deviation. The Baraby and Carlino cases would re-encourage a case
by case analysis by the trial courts based upon the sensitivity of its
own individual facts. This possibly results in a wide variance of case
decisions because of un-uniform discretion applied by different judges.
Elimination of this discretion was what was originally sought when CSSA
was enacted. It was felt that there should not be similar cases decided
differently because two different judges chose to exercise discretion
Hopefully, we are coming full circle with Baraby and Carlino in recognizing
that justice cannot be dispensed without consideration of the individual
facts of each case. The CSSA Act was passed when most men were the sole
or primary wage earners. It does not recognize the two wage earner household
where wives may indeed earn as much as - or more - than their husbands.
New arguments and decisions on this issue will help to change the current
standard rules to conform to current societal practices. Until then, you
and your Long Island
divorce attorney will have to work to establish these changes. The good news is
that you can.