Litigants who are parents (and even some written decisions from family court judges) sometimes confuse the terms joint custody and shared custody.
This article is intended to give general information only about New York, and not actual legal advice. Law. Laws differ in different states.
Under New York State Law, joint custody (also called legal custody) is the power of a parent to make important decisions about the child’s life, and will normally have nothing to do with who pays child support or how much child support is paid.
However, the issue of joint custody may be relevant to issues as to whether the child goes to college, and if so, what type of college. Since non-custodial parents can be required to pay for college education, joint custody can affect a parent’s responsibility to pay or contribute for college and can sometimes result in a very significant financial obligation since, as we all know, today, college costs a lot of money.
Shared custody is about how much time the child or children spends with each parent. For child support purposes, the visitation schedule will not be dispositive. Instead, the court will look at the total number of overnight visits , which includes visits on weekends, holidays, overnights included in any school break, and summer vacation.
In NY, The amount of time spent with each parent almost never affects child support
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 tables and formulas for calculating child support depending on the amount of time spent with the non-custodial parent.
New York has rejected this approach. Except for a situation where there is an exact 50/50 time sharing arrangment where the child or children spends exactly half of the time with each parent, NY courts and judges will almost always refuse to take the amount of parenting time into consideration and go by the child support guidelines tables. However, parents are free to make agreements which deviate from the normal child support formula because of the amount of time that the child or children spends with the non-custodial parent, and these agreements will be enforced by NYC Child Support Courts.
True 50/50 equal time sharing arrangements are quite rare here in NY, however, as NY courts are reluctant to order them in most situations. This is because there is a consensus among child psychologists and other parenting experts, that it is in a child’s best interest to have a “home base” and not to be shuttled back and forth between homes. If the parties have previously made an informal agreement to share time 50/50 and this arrangement has been working out relatively well, NY Courts may formalize this agreement in an Order, even if one of the parents disagrees.
Such orders are more common in situations where the parents live quite close to one another so that the child will have no problems getting to school, or having to have 2 sets of friends.
In A True 50/50 Custody Arrangements The Parent Who Earns More Still Has To Pay Child Support
Iff the parents have an absolute 50/50 split of physical custody with the child the parent whose income is higher is determined to be the non-custodial parent and must pay the other parent child support. Sometimes the parties agree to an order where child support is waived, but the parent who earns more agrees to pay for college, private school, or other extracurricular activities. .
This issue went all the way to New York’s highest court, the Court of Appeals, in the Bast case. In Bast, the Court not only ordered the higher earning parent to pay child support to the other parent, but also refused to adjust the amount of child support paid even though the child was spending exactly half of the time with each parent.
The decision in Bast may seem to be quite unfair, since the parent who has to pay child support is likely already paying half of the child or children’s living expenses, and the Bast court itself recognized this. In Bast, the Court left open the possibility that there might be some deviation from the CSSA Child Support Standards Act formula when there was a true 50/50 shared custody arrangement.
The Bast Court held that courts could make this determination based upon one of more of the 10 deviation factors listed in Section 413 of the Family Court Act, in order to avoid an “unjust or inappropriate” outcome.
In general, New York Courts have been very reluctant to deviate from the guidelines set in the CSSA, but have used the deviation factors to adjust the amount of child support obligations when the combined adjusted gross income of the parents is above the “Cassano cap”, which as of the date of this article, stands at $154,000. However, so far there are very few reported cases where NY Courts have chosen to deviate from the child support guidelines due to a 50/50 arrangement.
If you are the non-custodial parent in a true 50/50 situation, you or your family law or child support attorney could attempt to convince the Judge that the other parent’s expenses for food, clothing, entertainments,and transportation were considerably lower because the child or children were living with each parent half of the time.
In theory, there could be cases where there is an exact 50/50 time sharing arrangement, and both parents earn exactly the same income. This would probably only happen where both parents had the same government job, where there are set pay scales. It is very possible that in this situation, the courts would refuse to order any child support payments.
At What Age Can A Child Decide Who He Or She Will Live With?
In New York, while child support continues to age 21, after age 18 a child is considered, for almost all purposes, to be an adult and can choose where he or she wants to live. Once a child has reached the age of 18, the Family Court lacks the power to make any child custody or visitation orders and a “child” or young adult over 18 can decide for himself or herself.
If a young adult of 18 decides to live with a non-custodial parent, the non-custodial parent becomes, in effect, the new custodial parent, and can collect child support from the other parent. This would require filing a petition, however.
