Among the most vexing issues confronting divorce lawyers and family law practitioners in general is the draconian fashion in which the courts’ strict interpretation of the Child Support Standards Act (CSSA), DRL §240(1-b), results in what clients and their attorneys find to be bizarre and inequitable child support awards. Oftentimes, this quandary arises in cases of shared custody, when a child enjoys almost equal time with both parents, but where one parent has a slight edge in the number of total nights that the child spends with him or her in a given year. See, Bast v. Rossoff, 91 NY2d 723 (1998). Judges in those cases are constrained to say that the parent with the greater amount of time, even if it is one or two days, is the custodial parent, all despite the fact that the parent with fewer days may be the one who is in dire financial need of child support.

In the recent Appellate Division, First Department, case of Rubin v. Della Salla, 2013 N.Y. App. Div. LEXIS 2612, 2013 Slip Op 2681, the court reversed an order of the Supreme Court, New York County, entered March 8, 2012. Justice Ellen Gesmer had denied the defendant-father’s summary judgment motion which sought an order dismissing the mother’s claims for child support. The plaintiff-mother sought an award of child support even though she was the "non-custodial parent." The father, who had more than fifty percent of the available parenting time with the child and, thus, was the "custodial parent" under the CSSA, had argued in his failed motion that the CSSA forbade the court from awarding child support to the "non-custodial parent"—i.e., the mother.

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