Split and Shared Custody Arrangements

Part Two of a Three-Part Article

There are instances in which parents agree to substantially share the children's time between both their households, resulting in the children spending up to 50% of the time with the “noncustodial” parent. The Child Support Standards Act (CSSA) does not address this kind of sharing arrangement, which can lead to inequities.

Time and Money

This issue was examined by the Court of Appeals in Bast v. Rossoff, 91 NY2d 723 (1998), in which the non-custodial parent (the father in this instance) argued that the parties' stipulation of “shared custody” provided a sufficient basis upon which the court should deviate from the formula set forth in CSSA. A review of the Bast parties' parenting access schedule reveals that the non-custodial parent's time with the children amounted to roughly 4' days every two weeks, or approximately 32% of the time. (By comparison, the court in Bast noted that the “usual” schedule of visitation amounted to approximately 20% to 25% of the total custodial time during a typical calendar year.) The father argued that the additional time he spent with his child, providing for her direct support by sheltering, feeding and entertaining her, entitled him to a child-support obligation based on a “proportional offset” formula, which, he argued, would reduce his support obligation.

The court specifically rejected this argument, stating that the statute is explicitly devoid of any such time-based consideration, and further noted that a review of the legislative history demonstrated that the legislature had originally considered, and ultimately rejected, at least two different proposals that would adjust child support where the parents shared custody of the children. This legislative history provided the Court of Appeals all the justification it needed to strictly adhere to the calculations set forth in CSSA without regard for the custodial arrangement, although the court noted the catch-all in the statute affording courts ultimate discretion where there is a finding that the application of the CSSA formula results in an “unjust and inappropriate” obligation.

The theory of the father's position in Bast seemed worthy of consideration, and would be even more applicable when that time is closer to, or even equals, 50% of the time. The practical application of the Bast decision and those of other courts has been, in some cases, blatantly unjust and illogical, particularly from a mathematical perspective.

A Case in Point

Consider the decision in the Matter of Baraby v. Baraby, 250 AD2d 201 (3rd Dept. 1998). In this case, the court stated that, where the parents share custody of the children on a true 50/50 basis, and there cannot be a “custodial parent” based on the amount of time spent with the children, the parent who earns more money will be deemed the non-custodial parent for child support purposes. In other words, whoever earns more pays child support to the other in accordance with the CSSA formula regardless of how the parties may have designated their roles with regard to custody of the children. This concept is fairly consistent throughout New York State. See, e.g., Barr v. Cannata, 57 AD3d 813 (2nd Dept. 2008); Moore v. Shapiro, 30 AD3d 1054(4th Dept. 2006). What is the result of this?

Cracks in the Logic