As a Long Island Divorce Attorney and Child Support Attorney, I am often asked the question, “If I share custody of the children, do I have to pay child support?” or “Will I receive child support in a shared custody situation?” There is a common misconception in Nassau County and Suffolk County child support cases that there is no obligation to pay child support where two parties “share” custody or “share” equally in parenting time. Because the Child Support Standards Act is silent on the matter of shared custody, it is not surprising that this question has been litigated several times in the State of New York.
In 1998, the New York Court of Appeals formally recognized that the Child Support Standards Act does in fact apply to cases of shared custody. In the case of Bast v. Rostoff, the Court of Appeals attempted to reconcile a shared custody agreement with the Child Support Standards Act, as the lower court acknowledged, “[t]he concept of shared parenting time does not appear anywhere in the statute.” 91 N.Y.2d 723, 725 (1998).
In this case, the Court of Appeals affirmed the lower court’s decision in determining that the Child Support Standards Act does apply to instances of shared custody, despite the absence of any descriptive language, due to the legislative intent of the statute. The Court established that the more pressing issue at hand was how the Child Support Standards Act should be applied in these types of cases. The Court found that child support in shared custody cases must first be calculated according to the basic support percentages pursuant to the Child Support Standards Act.
In 2008, the child support obligation set forth in Bast was challenged unsuccessfully in the Second Department Appellate Division. In Barr v. Cannata, the plaintiff-father filed a petition in Suffolk County Family Court seeking custody of his two children. 57 A.D.3d 813 (2d. Dept. 2008).
The defendant-mother subsequently cross-petitioned for custody and child support. The parties entered into a stipulation for temporary shared custody of the children. The defendant-mother was denied child support, although the plaintiff-father was deemed to be the noncustodial parent by virtue of his greater income. However, the father was not directed to pay child support to the mother since he was paying his adult daughter $300.00 per week to care for the children.
The plaintiff-father then commenced an action in Suffolk County Supreme Court where he sought sole legal and residential custody of the children along with child support. The defendant-mother counter-claimed for custody and child support. The issue of custody was referred to the trial court to be resolved, but the defendant was awarded temporary child support, since the Family Court previously ordered a continuation of the prior temporary custody agreement between the parties.
The Second Department affirmed the Supreme Court’s decision, holding that in instances where two parties share custody, the parent with the greater income is treated as the noncustodial parent and is obligated to pay the other parent child support. Citing to Bast, the Court emphasized, “[t]he CSSA was enacted in large measure to ensure that children ‘do not unfairly bear the economic burden of [parental] separation.’” 57 A.D.3d at 815.
What we learn from these decisions is that in cases where parents “share” custody, the parent who has the greater income is deemed the non-custodial parent for child support purposes. Once the non-custodial parent is determined, the court is empowered to direct the non-custodial parent to pay support without necessarily discounting the support obligation.
It is important for parents to recognize that sharing custody does not do away with the obligation to provide child support. This means that a lesser income earning parent should not fear sharing custody with the higher income earning parent because the lesser income earning parent is entitled to receive child support. Conversely, higher income earning parents need to recognize that sharing custody does not mean they get a pass on paying child support. In each instance, the children are entitled to be supported fairly, regardless of the custodial arrangement reached by their parents.
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