50/50 DOES NOT EQUAL \$0/\$0

In recent months, I have had consultations with several clients who told me that they were seeking equal physical custody of the children.  While the well-being of the children is often the motivation behind the client’s desire for equal physical custody, sometimes the client tells me upfront that she wants equal custody of the children so that she does not have to pay child support to the other parent.  The client is always surprised to learn that equally sharing physical custody of the children does not eliminate the possibility of child support.

In New York, child support is governed by the Child Support Standards Act (which is found in Section 240 (1-b) of the Domestic Relations Law and Section 413 of the Family Court Act).  Absent a few very limited exceptions, a parent has an obligation to pay child support in New York until his/her child turns 21 years old.

When child support is an issue, the parent that does not have the children for the majority of the time (i.e. the non-custodial parent) will be ordered to pay child support to the parent that does have the children for the majority of the time (i.e. the custodial parent).

How much child support is paid is determined using a statutory mathematical formula and is based upon the income of the parents and the number of children there are.   The law presumes that for each child a certain percentage of each parent’s adjusted gross income[1] is to be paid for child support. These percentages are:

1 child – 17%;

2 children – 25%;

3 children – 29%;

4 children – 31%;

5 or more children – 35%

This means that if there are two children, the non-custodial parent will pay 25% of her adjusted gross income for child support.  The law requires that the non-custodial parent also pay a share of certain other expenses, such as child care expenses and unreimbursed medical expenses.

When the court is faced with a shared physical custody situation, it must still determine who the non-custodial parent is.  When parents share custody of the children so that neither parent can be said to have physical custody of the children for a majority of the time, the court will treat the parent that earns more money as the “non-custodial” parent.  Baraby v. Baraby, 250 A.D.2d 201 (3d Dept. 1998).

This means that if one parent earns \$50,000 and the other parent earns \$75,000, then the parent that earns \$75,000 will be the “non-custodial” parent.

Once the non-custodial parent is identified, the court will calculate her child support obligation using the statutory formula and direct the non-custodial parent to pay that amount to the custodial parent.   If the non-custodial parent wants the court to reduce the amount of child support, then that parent must prove that the statutory amount of child support is “unjust or inappropriate” based on a series of statutory factors.  This is a heavy burden to prove.

People tend to think that child support is simple “dollars and cents.”  But, as you can see, child support can involve a complicated analysis of the custody arrangement and the financial circumstances of the parents.

[1]“Adjusted gross income” means the parent’s income minus FICA (social security and medicare) taxes that are paid.