While the Judicial Departments of the New York Appellate Division and the State Court of Appeals are in tandem in their holdings concerning the manner in which lower courts are to handle split custody arrangements and child support, New York practitioners are reporting that lower courts recently have been misapplying the law.

Under the Child Support Standards Act (CSSA) and the precedent issued by the Court of Appeals, when both parents have an equal amount of parenting time and child support is being sought, courts must apply a prescribed three-step process.

First, the court calculates the “combined parental income.” Second, the court multiplies that figure, up to the current statutory cap of $148,000, by a specified percentage based on the number of children in the household. Third, the court allocates that amount between the parties according to their share of the total parental income.

In cases where the parents have a roughly equivalent amount of parenting time, courts are required as a matter of law to order the monied parent to pay the non-monied parent child support in accordance with the CSSA. In cases where one parent spends more nights with the children than the other parent, the parent who has more time is deemed to be the “custodial parent” and therefore entitled to an award of child support.

In addressing child support in situations where custody is split, the Court of Appeals has held that it does not want people fighting over every minute of parenting time in an effort to ensure that one party obtains child support.

As the court stated in Bast v. Rossoff, 91 N.Y.2d 723, 732 (1998):

Finally, the proportional offset formula has the undesirable potential of “encouraging a parent to keep a stopwatch on visitation” in order to increase his or her shared custody percentage (Matter of Simmons v. Hyland, 235 A.D.2d 67, 70, 663 N.Y.S.2d 434). Notably, while the Third Department originally endorsed the proportional offset formula (Matter of Holmes v. Holmes, 184 A.D.2d 185, 592 N.Y.S.2d 72, supra), it has reconsidered its prior decision and has found the formula unworkable (Matter of Simmons v. Hyland, supra).

The Court of Appeals also stated in Bast that the CSSA is supposed to be applied in the same manner when children are split equally between two homes, as when a child has one primary residence and the more affluent parent is required to pay child support to the parent who earns less income:

While “joint custody” is generally used to describe joint legal custody or joint decision making (see, e.g., Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349; Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019), we are aware that many divorcing parents wish to maximize their parenting opportunities through expanded visitation or shared custody arrangements. However, the reach of the CSSA should not be shortened because of the terminology employed by divorcing parents in resolving their marital disputes and settling custody arrangements. In most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time (see, Matter of Holmes v. Holmes, supra, at 189, 592 N.Y.S.2d 72 [Casey, J., concurring in part and dissenting in part]; see also, Nicholas v. Cirelli, 209 A.D.2d 840, 619 N.Y.S.2d 171; Harmon v. Harmon, 173 A.D.2d 98, 578 N.Y.S.2d 897). As noted by Supreme Court, “[t]he reality of the situation governs” (167 Misc.2d, at 753, 635 N.Y.S.2d 453). Thus, even though each parent has a custodial period in a shared custody arrangement, for purposes of child support, the court can still identify the primary custodial parent.

See id. at 723.

In terms of an equal split of parenting time with a child, it does not have to be exactly equal for the monied spouse to be required to pay child support, but rather it has to be “roughly equal,” as stated by the trial court in Kaye v. Kaye, 6 Misc.3d 1005(A), at *10 (Sup. Ct., N.Y. County 2005):

The court did not address what should be done, whereas here, each parent has roughly equivalent time with the children and no parent can be said to operate “command central” for them. In such situations the cases have held that the parent who has less income, should be the custodial parent for child support purposes. Baraby v. Baraby, 250 A.D.2d 201 (3d Dept. 1998); Vuoncino v. Fuhrman, 3 Misc.3d 291 (Fam. Ct. Al. Co. 2004). In these cases, where no distinction can be drawn based upon time, identifying the custodial parent based on relative incomes is consistent with the object of the CSSA to make sure that the children enjoy a particular standard of living, wherever they happen to be residing at a particular time.

As another example of how courts have interpreted the CSSA to require an award of child support by the monied parent in situations involving an equal split of parenting time, in Baraby v. Baraby, 250 A.D.2d 201, 203 (3d Dept. 1998), the trial court, in calculating the father's child support obligation, applied the “proportional offset method” in an equal custody situation by reducing the father's pro rata child support obligation based on the amount of time he spent with the parties' children.

The Appellate Division, Third Department reversed, noting that the Court of Appeals explicitly rejected the proportional offset method in Bast, and held that where neither parent has physical custody of the children for a majority of the time, the wealthier parent must pay the less monied parent child support. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d at 827. As for the policy underlying the Court of Appeals' holding in Bast, the court noted in Baraby that the objective underlying the application of the CSSA is “to assure that children will realize the maximum benefit of their parents' resources and continue, as near as possible, their pre-separation standard of living in each household.”

Moreover, in determining which parent is the “custodial parent” for the purpose of awarding child support, courts are not supposed to count the hours between the parents, but rather are supposed to simply count the nights that the children spend with each parent.

As the Appellate Division, First Department stated in Rubin v. Salla, 107 A.D.3d 60, 69 (1st Dept. 2013):

We reach the same result here and reject the counting of waking hours as a method of determining who is the custodial parent. Although the Court in Bast did not elaborate on what constitutes a “majority of time,” we believe that the number of overnights, not the number of waking hours, is the most practical and workable approach.

Based on this case law from the Appellate Division and the Court of Appeals, most practitioners would not expect support magistrates and judges to be raising the idea of giving credit to parents in shared custody situations or forcing parents to pay statutory “add-ons” during their parenting time. But over the past several months, my colleagues practicing in New York, Kings, Suffolk and Nassau counties have been involved in cases where the magistrates and judges are doing just that. In fact, an equal split of time is not one of the DRL or FCA sub F factors that provide for an award of credits. In its truest sense, the law only allows for extraordinary expenses incurred for access to the children, not the equal division of the children.

Practitioners report that their less-monied clients, usually women, are afraid of splitting time equally for fear of losing their child support even though they make a fraction of the income of their former spouses or significant others. This fear and confusion is being caused by misguided rulings on joint custody, which in turn force counsel to advise clients to steer clear of equal splits of visitation and to fight to give the non-custodial parent less time in order to create a more decisive factor in determining who is the custodial parent for child support purposes.

Courts and counsel need to understand that rulings on child support have an impact on custody and vice versa, and that when a child resides in two homes a roughly equal amount of time, that does not mean that the lesser monied spouse should have less child support. Rather, the only times the less monied spouses have not received child support is when custody is awarded to the more powerful and more moneyed spouses, which happens frequently today.

To have parents wrestling over every second of time spent with their children is the exact opposite result that the Court of Appeals mandated with regard to the application of the CSSA.

Indeed, rulings outside the settled precedent on split custody have created situations where parents are constantly measuring their hours and minutes of parenting time to determine which one will be legally entitled to child support. This needless chaos takes a huge toll on a family's emotions and finances, and on attorney time and court resources.

Yonaton Levoritz is the founder of Levoritz Law Group in New York, which handles family and elder law matters.