Litigants (and even some written decisions from family court judges) sometimes confuse the terms joint custody and shared custody. Under New York State Law, Joint custody is the power of a parent to make the important decisions about the child’s life, and has nothing at all to do with who pays child support or how much basic child support is paid.
However the issue of joint custody can be relevant to issues as to whether the child goes to college and if so what type of college. Since non-custodial parents can, in many circumstances, be required to pay for college education, joint custody can affect payments for college.
Shared custody is about how much time the child or children spends with each parent.
In NY, the amount of time that a child spends with each parent almost never affects child support obligations
In a number of other states, in particular New Jersey and Pennsylvania, the amount of time that a child or children spends with each parent is taken into account in determining the amount of child support payments. In New Jersey there are separate formulas for calculating child support depending on the time spent with the non custodial parent.
New York has rejected this approach. Except for the situation where the children spend exactly half of their time with each parent, NY Courts will almost always refuse to take the amount of parenting time into consideration. However parents may make an agreement which deviates from the child support formula because of the amount of time that the child or children spends with the noncustodial parent, and courts will enforce this agreement.
This Issue went all the way to New York’s highest court, the Court Of Appeals in the Bast case. In practice, cases where each parent has the child or children exactly half of the time are extremely rare. It is also quite rare for New York Courts to order a 50/50 custody arrangement.
Almost all child psychologists agree that it is usually in a child’s best interests for him or her to have a “home base”. Generally the only times that NY Courts will order a 50/50 custody arrangement without consent is if the parents live very close to one another.
In determining whether or not custody is being shared 50/50 courts look at the actual number of overnights the child or children actually spends with each parent. Dinner visits and half days do not count. Also, if there is an order which spells out 50/50 time sharing but the parents make a formal or even informal agreement to allow the child or children to spend additional time with one parent it is no longer a true 50/50 arrangement.
The Bast court did leave open the possibility that there might be some deviation from the child support formula in a 50/50 shared custody situation if rigid application of the formula which calculates child support orders based a percentage of the parents’ adjusted gross income (i.e. 17% for one child, 25% for two children, etc.) in the particular situation was “unjust and inappropriate”. The Court of Appeals held that courts could make this determination based upon one or more of 10 factors listed in Section 413 of the Family Court Act.
In general New York Courts have been very reluctant to deviate from the guidelines set in the Child Support Guidelines Act although deviations can take place where the combined adjusted gross income of the parties is over the statutory cap, which, as of the date of this post, is $154,000. Although the Bast court left open the possibility that a true 50/50 time sharing arrangement could allow a deviation using one or more of the ten statutory factors listed above, so far there are very few reported NY cases where courts have done so.
If you are the higher income parent in a 50/50 situation you or your child support lawyer would attempt to convince the Judge that the other parent’s expenses for food, entertainment, transportation, and possibly even clothing and food were significantly lower because the child or children were living with you half of the time.
At What Age Can A Child Decide Who He Wants To Live With?
In New York, while child support continues to age 21, once a child reaches the age of 18 he or she is considered for almost all purposes to be a legal adult. This means that Courts lack the power to make custody or visitation orders for children over the age of 18, and a child can literally decide which parent he wants to live with .
If a child over 18 decides to live with the non custodial parent and moves in with him, no court will interfere, and it may be possible for the former non custodial parent to collect child support going forwards from the other parent. This would require filing a petition, however.