Generally, in New York, like most states, when a couple separates or divorces, and one parent is awarded primary custody of a child, the non-custodial parent is obligated to pay child support to the primary custodial parent. This determination of a “non-custodial” parent is naturally straightforward when there is a clear primary custodial parent designated, meaning, when one parent has the child(ren) the majority of the time. However, when parents share physical custody or share roughly equivalent amounts of time with their children, there is a common misconception that neither parent is considered “non-custodial” and is obligated to pay child support. This is simply not true. Instead, when there is a shared custody arrangement, New York courts look to the parents’ income as the means to identify which one is the “non-custodial” parent for child support purposes. Said differently, “where the parents share physical custody with approximately an even distribution of parenting time, the parent with the higher income is deemed the non-custodial parent for purposes” of child support under the Child Support Standards Act (CSSA). Rapp v. Horbett, 174 A.D.3d 1315, 1316 (4th Dept. 2019) (internal quotation omitted); see Ball v. Ball, 150 A.D.3d 1566, 1567 (3d Dept. 2017); see also Family Ct. Act § 413.

An obvious concern that arises from this is when there is only a small disparity in the parents’ incomes. Specifically, where the parents have equal parenting responsibilities and expenses as well as similar incomes, yet one parent is deemed the non-custodial parent and is obligated to pay child support to the “custodial” parent, who has comparable financial resources.  In such a scenario, courts will still follow the scope and methodology under the CSSA to determine the basic child support obligation of the “non-custodial” parent. However, the court then may either order the non-custodial parent to pay their strict statutory obligation, or in the alternative, may deviate from the same if the court determines the non-custodial parent’s child support obligation is found to be “unjust or inappropriate.”

For example, in the recent Monroe County Supreme Court Case, C.M.W. v. R.J.W., 73 Misc. 3d 1202(A) (N.Y. Sup. Ct. June 14, 2021), the parties shared physical custody of their two (2) minor children, and had a difference of income of roughly only $6,400.00. Specifically, the Mother’s gross annual income was $50,919.00, and the Father’s was $57,304.08, making the Father’s full presumptive allocation of child support under the CSSA to be more than $13,000.00 annually, or approximately $254.00 weekly. In determining that it was “just and appropriate” to, not eliminate, but instead, to deviate from the CSSA when ordering the “non-custodial” parent, namely the Father, to pay child support, the Court noted that:

“[A] parent, with equal parenting responsibilities, should have access to a somewhat equal share of the family income to provide for his children. It would be unjust and unfair to require this father to finance a sum of child support that gives [the mother] $15,000 to $20,000 greater share of the family’s combined but limited income. This Court acknowledges that there is nothing in New York that requires this court to equalize the family incomes through child support. But, neither should a court permit the payment of child support to give one parent—with the equally shared parenting responsibilities—a disproportionate access to the family’s combined income.” Id. Misc. 3d 1202(A) (emphasis added).

As a result, the Court ordered the Father to pay the Mother for child support the sum of $100.00 per week, as—the Court held—it was a “fair and just” amount. Id.; compare Riemersma v. Riemersma, 84 A.D.3d 1474, 1477 (3d Dept 2011) (“a $37,000 difference in parental income, standing alone, is sufficient to warrant a deviation from the presumptively correct amount but significant custodial time does not warrant deviation”).

Although the CSSA does not specifically allow for an automatic deviation simply based upon a shared physical custody arrangement and minimal disparity in the parents’ incomes, the CSSA does provide ten (10) enumerated factors that the Court may consider when determining the “just and appropriate” child support obligation. See FCA § 413(1)(f)(1) – (10). These factors include, inter alia, the following:

• The financial resources of the custodial and non-custodial parent, and those of the child (FCA § 413(1)(f)(1));
• The physical and emotional health of the child and his/her special needs and aptitudes (FCA § 413(1)(f)(2));
• The non-monetary contributions that the parents will make toward the care and well-being of the child (FCA § 413(1)(f)(5)); and
• Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof (FCA § 413(1)(f)(9)).

Consequently, unless the parties contractually agree otherwise, the “monied” parent’s child support obligation will not be eliminated but rather will only be subject to a potential deviation in cases of an equally shared physical custody arrangement.

Sara B. Sweeney is an Associate in Tully Rinckey PLLC’s Albany office, where she focuses her practice primarily in matrimonial and family law. Sara provides representation in virtually every aspect of family and matrimonial law including matters relating to child custody, child support, orders of protection and family offenses, parental alienation, separation agreements, divorce, enforcement of divorce decrees, spousal maintenance, pre-and post-nuptial agreements, neglect and abuse, and termination of parental rights. She can be reached at info@tullylegal.com or at (518) 218-7100.