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Sharing Custody May Not Be a Reason to Reduce Support

Family & Matrimonial Law

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More than 30 years ago, New York State adopted the Child Support Standards Act (“CSSA”).  Every support order in New York State must comply with the CSSA.  The CSSA provides a mathematical formula for determining the amount of child support paid and received, based upon the income of the parties and the number of children.[1]  Depending on the income of the parties, certain “add ons,” like daycare costs, medical expenses, and educational costs, may also be ordered by the Court.

The CSSA formula provides the presumptively correct amount of basic child support. [2] And while that amount is presumed to be the sum to be awarded, the statute allows the Court to look to certain factors (called “deviation factors” under the CSSA) that would allow the Court to award a greater or lesser sum. [3]

In some cases, the deviation results in a parent paying more support, like in cases where a child has severe health conditions and thus expenses, or the Court finds that the overall needs of a child would not be met by what the mathematical formula alone provides.[4]

Just as often the Courts have been presented with reasons to deviate down from the presumptively correct amount and order a lesser sum of support.  Reasons to deviate down typically includ extraordinary travel expenses incurred in order for a parent to exercise his or her visitation, the noneconomic contributions that the parties may make to a child’s care, and a shared custodial arrangement—where the parties essentially split parenting time on an almost equal basis.[5]

However, a spate of decisions over the past few years have caused Courts to reject  shared physical custodial arrangements as a significant deviation factor.  In Jerret v. Jerret, the Fourth Department [6] determined that the Support Magistrate had improperly determined that the child was spending enough time with the father to warrant a downward deviation from the presumptive support obligation. [7]  More specifically, the Fourth Department determined that, despite the near 50-50 parenting time split, the presumptively correct amount must be ordered unless doing so would be “unjust or inappropriate.”

Jerrett has constrained judges and Support Magistrates who have typically relied on shared physical custodial arrangements as a reason to significantly deviate downward on support, sometimes even to zero.  As a result, it is important consider the impact that Jerrett may have if you are sharing physical custody as well as what factors should be presented to  a Court to consider for a deviation  of CSSA support.

If you have questions regarding the impact that the recent case law may have on your case, contact a family and matrimonial attorney to learn more. The lawyers at Tully Rinckey, P.L.L.C., are experienced in representing parents and spouses in divorces and Family Court support proceedings. Contact us to schedule an initial consultation.

[1] See Domestic Relations Law § 240(1-b); Family Court Act § 413.

[2] See generally FCA § 413.

[3] Id.

[4] See generally McVea v. McVea, 107 NYS 3d 882 (2d Dep’t 2018).

[5] See generally Borowicz v. Mancini, 256 AD2d 713 (3d Dep’t 1998), Bronstein v. Bronstein, 203 AD2d 703 (1994).

[6] The Fourth Department is the Appellate Division covering counties in Western and Central New York.

[7] Jerret v. Jerret, 162 AD3d 1715 (4th Dep’t 2018).


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