DECISION AND ORDER The parties have never been married and have two children in common, Chiara D. and Michelangelo D. On January 27, 2020, the mother, Aileen S. (hereinafter “Mother” or “Ms. S.”) filed a support petition against the father, Michael D. (hereinafter “Father” or “Mr. D.”). In her petition, she alleges that she is entitled to child support because she asserts that the parties’ final order of custody and parenting time grants “the parties’ [sic] joint legal custody and shared parenting time.” On February 26, 2020, Mr. D. filed a motion to dismiss. In his papers, Mr. D. argues that Ms. S. is not entitled to child support because although the parties were awarded joint legal custody, the final order does not delineate residential custody. On March 16, 2020, Ms. S. filed opposition papers. Thereafter, the Court conducted two Skype conferences with the parties’ attorneys. Despite efforts to settle the motion, a resolution could not be reached. Both parties submitted supplementary papers which they agreed would be considered by the Court for the purposes of deciding the motion. On May 1, 2020, the motion was marked submit. Having considered the parties’ papers, the law, and counsels’ arguments, the Court’s determination is as follows: DISCUSSION A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7). See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2020) (FCA adopts and applies CPLR where FCA is silent); see also See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2020). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2020); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Although Ms. S.’s petition states that she is entitled to support for the benefit of the parties’ two children, the Court finds that under the law, the relief she seeks is not warranted, and dismisses her petition. For the purposes of calculating child support, a custodial parent is a parent who has physical custody for a majority of time. See Bast v. Rossoff, 91 N.Y.2d 723, 728 (1998); see also Watson v. Maragh, 147 A.D.3d 769, 769 (2d Dep’t 2017); Conway v. Gartmond, 144 A.D.3d 795, 796 (2d Dep’t 2016); Ambrose v. Felice, 45 A.D.3d 581, 582 (2d Dep’t 2007). It is well-settled in the Second Department that where neither parent has the children for the majority of the time, the non custodial parent is deemed to be the more monied spouse.1 See Conway, 144 A.D.3d at 796 (citing cases). Where, as here, the parties disagree about whom has the children most of the time, a court must make a determination as to whom is the primary custodial parent. See Bast, 91 N.Y.2d at 728. There is no controlling law in the Second Department in that regard. The stare decisis doctrine requires Second Department trial courts to follow precedents set forth in sister departments until controlling law in the Court of Appeals or Second Department is established. See Mountain View Coach Lines, Inc. v. Storm, 102 A.D.2d 663, 664(2d Dep’t 1984). Where there are differing views in sister departments, a Court is able choose which approach it deems to be the better one and apply it. See Mountain View Coach Lines, Inc., 102 A.D.2d at 664 66; Matter of Faragiano, 46 Misc. 3d 646, 649 (Erie Cty. Surr. Ct., Oct. 29, 2014) (citing cases). The First and Third Departments hold that the parent who spends more overnights with the children is the custodial parent. See Mitchell v. Mitchell, 134 A.D.3d 1213, 1214-215 (3d Dep’t 2015); Rubin v. Della Salla, 107 A.D.3d 60, 67-73 (1st Dep’t 2013); Smith v. Smith, 97 A.D.3d 923, 924 (3d Dep’t 2012). The Fourth Department holds that where there is an approximately even distribution of parenting time, the parent with the greater income is the non-custodial parent. See Brink v. Brink, 178 A.D.3d 1369, 1371 (4th Dep’t 2019); see also Rapp v. Horbett, 174 A.D.3d 1315, 1316 (4th Dep’t 2019). Mr. D. maintains that he has more overnights with the children and urges the Court to follow the First and Third Departments. Ms. S. urges the Court to follow the Fourth Department because she maintains that the parties enjoy shared parenting time with the children. She further asserts that she was awarded more waking hours with the children. The Court finds the reasoning and holding in the First and Third Departments to be more persuasive than the Fourth Department. In Rubin v. Della Salla, 107 A.D.3d 60 (1st Dep’t 2013), the court sets forth a thorough analysis of its conclusion that overnights are the determinative factor. The Rubin court found that “[a]n hour-by-hour analysis of custodial time is just not workable and would run afoul of the ‘greater uniformity [and] predictability’ the CSSA was designed to promote.” Id. at 70. The Rubin court explained that: (1) the number of waking hours does not accomplish the goal of child support, which is to help a custodial parent provide the children with basic necessities; (2) since children’s daily activities are constantly ever-changing, children may not actually be with a parent during daytime hours; and, (3) the waking hours approach promotes manipulation by parents in trying to achieve the custodial parent designation. Id. Moreover, other New York trial courts have consistently followed the overnight approach.2 See E.I. v. Y.A., 2018 N.Y. Misc. LEXIS 1230, at *19 (Queens Cty. Sup. Ct., Mar. 20, 2018); see also J.R. v. M.S., 56 Misc. 3d 975, 988-89 (N.Y. Cty. Sup. Ct., May 5, 2017); Joseph M. Lauren J., 45 Misc. 3d 1211(A) (N.Y. Cty. Sup. Ct., Oct. 22, 2014). Ms. S. acknowledges that Mr. D. enjoys more overnights with the children.3 Thus, applying the relevant law set forth in the First and Third Departments, the Court finds that Ms. S. is not the children’s custodial parent.4 Accordingly, accepting all alleged facts within the pleadings to be true, the Court finds that Ms. S. has failed to sufficiently set forth a cause of action. ADJUDGED, that Ms. S. is not the children’s custodial parent and is not entitled to child support; and, it is further, ADJUDGED, that accepting all alleged facts within the pleadings to be true, Ms. S. has failed to sufficiently set forth a cause of action; and it is therefore, ORDERED, that Mr. D.’s motion to dismiss is hereby granted in its entirety; and it is further, ORDERED, that Ms. S.’s petition is hereby dismissed. Dated: May 7, 2020
