In a recent case the Appellate Division in New York Second Department again stated the courts position on support and split custody.  Parties had joint legal custody and shared parenting time. The order was issued in family Court. A Support Magistrate and the Family Court agreed that the mother could not be awarded child support because a strict counting of their custodial overnights of the children rendered the father the custodial parent.  

The Second Department Appellate Division reversed the Family Court’s order and sent the case back to the lower court to determine support on the mother’s petition including calculation of an appropriate award if she is found to have the lesser pro rata share of the child support obligation, pursuant to the CSSA.  The court reiterated its position that when custody arrangements are split and neither party has physical custody of their children, meaning, the majority of time, then the parent that has the higher income would be deemed the non- custodial parent for child support purposes, and will have to pay child support pursuant to the guidelines.

Of course, this was a case of shared time. Parties are always able to negotiate another arrangement as to child support but if either party asks a court to determine support the court will look to see who makes more of an income and the time does not have to split to the exact number of overnights to be deemed shared time.

Zelik v. Rubashkin 501618/17 (August 29)