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Calculating NY Child Support With 50/50 Joint Custody

By Sari M. Friedman, Legal Counsel
Fathers' Rights Association – NYS & Long Island

Calculating NY child support in joint custody casesIn New York State, who pays child support in a 50/50 joint custody arrangement since there there is no one "custodial parent"? Generally, the lower-earning parent will be treated as the “custodial parent” and the higher-earning parent will end up paying child support. Continue reading for more details about child support in NYC, Long Island, and all of New York.

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 calculating NY child support must be applied in all shared custody cases.

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How Much Is Child Support in NY?

New York State child support is calculated using the NY child support calculator formula. NYC.gov also has an online NY child support calculator. You can use their child support calculator to help you get an idea of how much child support may be required for your case in NY.

The three-step formula for calculating NY child support is:

  1. Calculate the combined income and each parent's pro-rata share of the same
  2. Use the correct percentage of total income CSSA says should be devoted to child support:
    1. 17% for one child
    2. 25% for two children
    3. 29% for three children
    4. 31% for four children
    5. 35% for five or more children
  3. Calculate each parent's share thereof.

The non-custodial parent is directed to pay a pro-rater share of the child 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 appropriate under the circumstances.

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 New York State 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 New York 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.

Sari M. Friedman | NY Child Support Attorney
Sari Friedman

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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 differently


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 attorney will have to work to establish these changes. The good news is that you can.

Call Friedman & Friedman at (516) 688-0088 for further information about New York State child support or divorce.

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