How Far Back Can Child Support Be Recalculated?

Ordinarily, proceedings to modify child support or related expenses are retroactive to the date of filing of the new application or petition. However, proceedings that argue that the court order or settlement agreement didn’t comply with the relevant requirements of the Child Support Standards Act are treated differently. Where the court finds, sometimes many years later, that an order, or an agreement, is non-compliant, it has to recalculate child support and related obligations retroactive to the original date of the order or agreement. Non-compliance can happen for a variety of reasons such as an invalid opt-out provisions or a failure to include proper acknowledgment clause.

In Martelloni v. Martelloni, the Appellate Division, Second Department, held that the trial court erred in failing to grant wife’s motion for recalculation of unreimbursed medical and childcare costs retroactive to parties’ stipulation of settlement date of January 12, 2012. Parties’ stipulation of settlement survived but was not merged into divorce judgment.

In 2014 wife commenced plenary action to vacate and recalculate medical and childcare expenses retroactive to the date of stipulation. In 2015 court consolidated wife’s plenary action with another post judgment matrimonial proceeding and determined stipulation provision pertaining to unreimbursed medical was invalid as it deviated from CSSA without an acknowledgment, and dismissed wife’s plenary action due to consolidation. Wife then filed motion to compel husband to pay pro-rata share of unreimbursed medical and childcare, retroactive to 2012 stipulation date.

The Appellate Division held that the trial court improperly determined reimbursement of medical and childcare costs were retroactive only to the date of filing of the motion. It held that since wife properly commenced plenary action to vacate and recalculate stipulation provision which action was consolidated, court should have granted recalculation of arears owed retroactive to date of parties’ stipulation of January 2012.

This determination is likely to create an unexpected financial obligation for the now ex-husband. The amount of it is likely to be significant since it had merited an appeal. In my practice as a child support attorney, I see a surprisingly high number of orders and agreements that for one reason or another do not comply with the Child Support Standards Act. Under appropriate circumstances, those situations represent an opportunity to undo a bad agreement or wrong court decision.

Sperm Donation, Paternity, and What Not to Do

Generally, a sperm donor is not treated as a father under New York law. However, a typical sperm bank will have prospective mother sign a contract that will disclaim any liability for the donor. A recent case has demonstrated that a donor who chooses to make a private sperm donation without an agreement in place, may expose himself to unexpected consequences.

In Matter of Claudia B. v Darrin M., the Appellate Division, First Department, held that a private sperm donor can be treated as a parent. After the parties’ relationship ended, the petitioner asked the respondent to donate sperm so she could conceive. He agreed. When the respondent donated 17 vials of semen to a fertility center, the parties were still negotiating an agreement providing that he would have no parental rights or responsibilities. No binding agreement was ever reached and executed.

The respondent moved to dismiss the petition on equitable estoppel grounds arguing that the parties intended that he be a sperm donor only, without any legal rights or obligations to the child. The lower court denied the motion and ordered him to submit to DNA testing; and, subsequently, declared him to be the biological father of the child. The First Department affirmed stating:

Respondent’s estoppel claim rests on the premise that the parties had a binding preconception agreement. Contrary to respondent’s contention, there was no binding enforceable oral or written agreement between the parties, either before or after respondent donated his sperm. There is no dispute that a signed contract does not exist. Nor was any final oral agreement reached.

This case makes it clear that trying to do certain things without an attorney familiar with New York’s Family Law, is risky, and can create a life-long financial responsibility. As a result of lacking understanding of legal issues involved, respondent became a legal father of the child without intending to do so. Respondent will be responsible for child support, portion of health insurance and child care costs, and potentially college costs as well, until the child reaches the age of emancipation, which in New York, is 21 in most circumstances.

Discipline For Children Who Refuse to Engage in Court-Ordered Visitation

One of the most difficult problems facing non-residential parents is a situation where a child refuses to engage in court-ordered visitation. If a child is above a certain age, a child can be constructively emancipated. Another option that the court has is to suspend or terminate residential parent’s right to child support. However, that does not work in every situation. Dealing with such refusal and attempting to resolve this problem, in Matthew A. v. Jennifer A., 2020 N.Y. Slip. Op. 51071(U), Justice Dollinger of the Monroe County Supreme Court imposed disciplinary measures on the children to protect the parental choice of best interests for the children, and also imposed significant sanctions on the parent who violated visitation orders.

In Matthew A., the father sought a contempt finding against the mother for refusing to follow increased visitation provisions that were in place for the parties’ three children, ages 14, 12 and 10. The mother argued that she was unable to force the children to spend additional time with the father and that the children should visit the father upon a schedule determined solely by their wishes. In effect, the mother’s argument would give the children veto power over the father’s access to them. Justice Dollinger wrote about the children’s position that the children “offer no justification, however; they just do not want to have someone dictate their schedule. They want to make that choice themselves and, as they say it, live their own lives. They tell the Court that they can decide their own best interests”.

In the court’s view, this argument was contrary to the most basic of parental rights, the right to make decisions in the best interests of the children. The court stated that “giving parents adequate access to their children is at the very heart of the children’s “best interests”.”

Since the mother’s actions in violating provisions of the court orders related to visitation subjected her to a finding of contempt, the court, utilizing its contempt powers, imposed significant restrictions on the children that the mother would have to enforce. The restrictions included the children’s prohibition of participation in extracurricular activities, prohibition of visits with friends and family members, and any other activities outside of the home.

The children’s attorney objected to those restrictions. In response, the court wrote that:

AFC, in a post-submission email to this Court, argues that the children are being held hostage and the restrictions are substantially impacting their lives, their development, their time with their mother’s family and other pursuits. The restrictions designed by this Court are intended to do exactly that but, the notion that the sons are hostages or are being restrained in their daily activities against their will is misplaced. They have the key to relieve the restrictions: take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear. The AFC also argues that the father, in seeking this Court order, has unreasonably punished his children and that this Court should take his conduct, in seeking to restrict their busy social lives, as evidence of some malevolent inclination on his part. In this Court’s view, that argument is a serial assault on parenthood: a parent, seeking a child’s compliance with a reasonable parental request, usually invokes increasingly severe penalties to obtain a child’s compliance with any reasonable rule. When a child refuses to, say, eat their vegetables or go to their grandparent’s anniversary celebration, the discipline track starts with “go to your room,” advances to “no television,” then, “give me your phone and your ‘screen,'” followed by ” sorry, “no ride to practice or ride to your friend’s house,” eventually reaching, “sorry, I won’t sign the permission slip to play soccer.” These disciplinary steps are not novel but, instead universal.

In view of contempt findings based on the mother’s behavior, the court offered the mother a way to purge contempt by requiring the mother to finance family reunification therapy for the children and their father with a recognized therapist, with the mother financing the first $7,500.00 in therapy costs, and the mother paying an award of attorneys fees and costs to the father for the fees and costs to bring this motion

Additionally, as a result of the children’s refusal to visit, the father asked that his child support obligation be eliminated or reduced. The court agreed, holding that “the father’s child support obligation is suspended until the three sons participate in the visitation plan detailed by this Court.”

Given the mother’s conduct of involving the children in this litigation and other violations of the court’s orders, I am not surprised by the decision. It will be interesting to see if the order is going to be appealed and if it is, if it will be affirmed.

Collection of Child Support Arrears

One issue that often comes up when someone owes child support or spousal support arrears is how those arrears are to be collected. One of the more common methods is through the use of income execution for support enforcement under CPLR §5241.

CPLR §5241 allows the attorney for the party to whom to child support or spousal support are owed to obtain up to 65 percent of the debtor’s disposable earnings to pay both past due and current amounts of child support, alimony or maintenance, plus provision of health insurance for dependents. CPLR §5241(h) notes that a levy on this type of execution has priority “over any other assignment, levy or process.”

Similar to the income execution for support enforcement is the income deduction order for support enforcement authorized by CPLR §5242. Such an order is issued by the court at the same time it issues an order of support. It allows deduction of the same percentages from debtor’s income payable to the creditor and the same number-one priority over all other assignments, levies or process against the income of the debtor.

If you are a debtor, a deduction of 65% of disposable earnings is likely to be unmanageable.  So what can be done? The answer is contained in CPLR §5240, which allows the court to modify terms of garnishment.  In Fishler v. Fishler, 154 A.D.3d 917 (2nd Dep’t 2017), the debtor was served with an execution for the maximum percentage permitted, 65% of disposable earnings.  The Appellate Division, having reviewed financial circumstances of the debtor, reduced percentage collected to 40% of disposable wages.  In making its decision, the court was seeking to strike “a fair balance between the needs of a creditor holding a valid money judgment and the needs of a debtor managing competing financial obligations”.

One additional issue is worth mentioning. If child support or spousal support are being collected by New York State Child Support Enforcement Unit, those arrears will be collected by increasing the amount garnished by 50% of the current payment due.  Debtor paying such arrears may apply for a lower payment amount on arrears, the so-called administrative adjustment, but such modification is discretionary with CSEU and requires an application and proof of financial circumstances.

Temporary Spousal Maintenance and Marital Residence Expenses

One issue that keeps coming up repeatedly in appellate decisions is whether  the party paying temporary spousal maintenance, can also be ordered to pay carrying costs of the marital residence.   In Rouis v. Rouis, 156 A.D.3d 1198 (3rd Dept. 2018), the Appellate Division, Third Department, held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses.

The parties were married in 1993 and had two children. The wife commenced this action for divorce in 2014, after the husband departed the marital residence. Applying the pre-2015 temporary maintenance formula on the wife’s motion for temporary relief, the trial court granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife’s vehicle and fuel costs ($644 per month). The husband appealed.

The Appellate Division recognized that the combined monthly awards amounted to an annual award of $155,400, not including an additional $10,000 in interim counsel fees, to be paid from the husband’s annual gross income of $183,300.50 (the wife’s pre-award income was $11,700.00).  It held that the temporary awards were excessive and should be modified.

The Appellate Division noted that the (pre-2015) temporary maintenance formula resulted in a presumptive monthly temporary maintenance amount of $4,387.50. The trial court also granted the wife’s request that the husband also pay the $4,859 in the expenses related to the marital residence, including the mortgage, taxes, utilities, insurance and costs of maintenance. While acknowledging that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, it gave a reduction to the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. The Appellate Division noted that when the wife’s vehicle expenses were added ($644 per month), the total combined monthly award was $7,461, plus the children’s tuition ($848 per month) and child support, the net effect of the trial court’s order was that the husband was ordered to pay the full presumptive maintenance award plus one half of the carrying costs on the home and the wife’s vehicle expenses.

The Appellate Division held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses. In its holding, the Court cited the First Department’s observation in its 2012 decision in Khaira v. Khaira, 93 A.D.3d 194 (1st Dept. 2012), that “[n]o language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the children. . . . But, in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses.”

Nonetheless, the Third Department held that while requiring the husband to pay a portion of the housing costs may have been appropriate, the trial court should stated its reasons why the presumptive award of temporary maintenance was “unjust or inappropriate” and the factors it considered.

The Appellate Division found that the combined award for maintenance, carrying costs and the expenses of the wife’s vehicle ($7,461 per month) — which was $3,073.50 per month in excess of the presumptive maintenance award ($4,387.50 per month) (without considering health insurance costs, child support or tuition) — was excessive. Accordingly, the court reduced the husband’s obligation to pay the carrying costs on the marital home by approximately one half of that $3,073.50 excess amount, or $1,540 per month, to $3,319 per month, leaving the $1,958 temporary maintenance award unchanged.

One interesting aspect of the decision was the issue of upkeep on the marital residence. The husband was required by the trial court to pay the monthly excess upkeep amount ($1,168), if any, into a separate account. The Third Department clarified that the upkeep payment was to be a part of the husband’s obligation to pay a total of $3,319 per month in carrying costs on the marital home. The Appellate Division stated in a footnote that wife, “of course,” is to be responsible for paying the remaining carrying costs on the home (other than the specified upkeep costs) from her temporary maintenance award. The parties’ respective pro rata obligations, in the event that the upkeep costs in any month exceed $1,168 and exceed any amount in the excess account, were to be deposited into a separate account pending resolution of equitable distribution issues.  What makes this unusual is the amount of upkeep and the direction that any unspent funds get deposited into a separate account and, if not used for upkeep, any remaining balance “shall be returned to the wife when the house is sold.”  Given that any post-commencement earnings are generally separate property of the party who had earned it, it is unclear what the trial court’s reasoning was with regard to those funds.

The propriety and fairness of awarding the wife the balance of any funds paid by the husband into the upkeep account is a matter to be resolved at trial as part of the overall equitable distribution award and, accordingly, the Third Department did not comment on that issue at this juncture.

The Appellate Division also found that the trial court had miscalculated the child support award and the parties’ pro rata shares of add-on expenses and remitted the case for immediate recalculation of the husband’s temporary child support obligation.

Unfortunately, it is fairly uncommon for the trial courts to make these types of mistakes related to temporary spousal support.  The remedy, in most situations, is the trial.

Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

Allocation of Child Care Costs in Child Support Cases

Under New York law, child support consists of two elements: “basic” child support and the “add-ons.”  Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent’s income to the combined income.

The parties occasionally dispute whether child care expenses are reasonable.  Most often, these disputes tend to focus on the cost and need for daycare. Thus, the court usually needs to conduct a fact finding hearing to determine whether such costs are appropriate and the child care was actually needed. In Pittman v. Williams, 127 A.D.3d 755 (2nd Dept. 2015), the court reviewed the parties’ child care costs and determined allocation of the costs. The court held that

where the custodial parent is working . . . and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated [and] [e]ach parent’s pro rata share of the child care expenses shall be separately stated and added” to the parent’s basic child support obligation (see Matter of Scarduzio v Ryan, 86 AD3d 573, 574 (2nd Dept. 2011)). Here, the Supreme Court properly determined that the mother incurred $425 in child care expenses each week. However, the court erred in calculating the amount of child care expenses to be paid by the father. Since the child care provider cared for both the subject child, as well as the mother’s son from a previous relationship, the child care expenses should be divided equally between the two children. Consequently, the cost of caring for the subject child is $212.50 per week, and the father’s pro rata share of the child care expenses is $191.25 per week.

Thus, when the need and the costs of child care are disputed, both of these issues need to be analysed and the parties need to be able to offer evidence either in support or opposition. Parenthetically, unless the costs of child care are grossly excessive, courts do not tend to deny parties reimbursement in situations where the child care was needed.

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

One of the issues that occurs in cases where a party is ordered to make spousal maintenance or child support after the judgment of divorce is entered, is that party may fail to make such payments. This brings up a question of what remedy should be utilized under those circumstances.

A recent decision of Keller v. Keller, 2015 N.Y. Slip. Op. 02453 (2d Dept. 2015) demonstrates how the court approaches a contempt application based upon payor’s failure to pay child support and related expenses. In Keller, a contempt application was brought after the money judgment for child support went unpaid for a number of years, and 6 Family Court orders were apparently ignored by the payor. In discussing the remedies available, the Appellate Division stated that

Pursuant to Domestic Relations Law § 245, a spouse may be punished for contempt for failing to make payments pursuant to [a judgment of divorce], but it must appear presumptively, to the satisfaction of the court,’ that payment cannot be enforced pursuant to Domestic Relations Law §243 (sequestration), Domestic Relations Law §244 (money judgment), CPLR §5241 (income execution) or CPLR §5242 (income deduction)” (Jones v. Jones, 65 A.D.3d 1016, 1016; see Klepp v. Klepp, 35 A.D.3d 386; Higbee v. Higbee, 260 A.D.2d 603). Thus, contempt may be warranted where the record demonstrates “that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual” (Capurso v. Capurso, 61 A.D.3d 913, 914; see Jones v. Jones, 65 A.D.3d at 1016; Rosenblitt v. Rosenblitt, 121 A.D.2d 375).

While discussing the specific circumstances of the case, the Appellate Division stated that plaintiff repeatedly failed to pay child support as directed in the parties’ judgment of divorce, or to abide by the court orders and money judgments subsequently entered against him on account of child support arrears and related expenses. The record further showed that the defendant either exhausted all enforcement remedies other than contempt, or that such further attempts “would have been futile”. The court further held that the plaintiff had the burden of going forward with evidence of his inability to make the required payments. After reviewing the facts and applicable law, the Appellate Division found that holding plaintiff in contempt of court was the correct remedy.

If Keller was brought in Family Court, the court’s would apply a different set of rules. In Family Court, under Family Court Act §454(3), there is a presumption that a parent’s failure to pay court ordered child support is willful. Payee’s sworn testimony as to nonpayment of ordered child support payments from payor is a prima facie evidence of a willful violation. Once the violation is shown, the burden shifts to the payor to demonstrate inability to make the required payments.  Upon the court’s finding of willful violation, the court may grant attorneys’ fees, enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license. Further, the court may direct incarceration of 6 months as a remedy as well. Thus, defendant would not have to make a showing that all available remedies were exhausted.

The above discussion illustrates that other remedies should always be considered before seeking a finding of contempt since a finding of contempt may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted or, alternatively, if nonpayment of child support, a willful violation petition should be filed in Family Court.

Constructive Emancipation and the Child’s Conduct

I have previously written about constructive emancipation issue and also addresses some of the applicable law in another post.  Generally, a child can become emancipated through his actions when the child either refuses to have contact with the parent or voluntarily abandon’s parent’s home. However, what happens when a child engages in abusive conduct directed toward the non-residential parent?

In a recent decision, Cornell v. Cornell, 2015 NY Slip Op 25030 (Sup. Ct. Monroe Co. 2015), the court held that where a child’s conduct directed at the parent is abusive and inappropriate, the court can construe such conduct as abandonment. In Cornell, the evidence presented to the court established that the child engaged in communications that established “a substantial hatred and/or disrespect for the mother”. In the court’s view,

a child who utters such terms about their parent cannot realistically expect this court to ignore such conduct and order the maligned parent to pay any form of support for the child. A child over the age of 18, seeking reimbursement for college expenses, cannot use such language toward a parent and then, either directly or through his other parent, seek child support, and/or payment of college expenses. No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

Thus, the court emancipated the child and the mother was no longer obligated to contribute toward support of the child or pay a portion of his college expenses.

This decision is particularly interesting because of the court’s emphasis on the child’s negative conduct directed at the mother. The court also mentioned that the child refused subsequent contact with the mother. While refusal to have contact is significant, according to the controlling cases, the court also has to analyze the parent’s efforts to reestablish contact with the child. Unfortunately in Cornell, the court did not discuss what specific actions the mother undertook to reestablish contact with the child.

Ultimately, I think that the court has reached result.  It will be interesting to see if this decision will be appealed and what the Appellate Division’s decision will be.

Shared Custody and Child Support – Number of Overnights Controls

I have previously written about the case of Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), where the Appellate Division held that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of child support. This has been the rule in shared custody cases for the last 15 years.

However, in a recent decision, Rubin v. Salla, 107 A.D.3d 60 (N.Y.A.D. 1 Dept. 2013), the Appellate Division held that based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”

In Rubin, the parties were the unmarried parents of a 9–year–old son. The mother and father always lived separately. After trial, the court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each winter vacation, and the other vacations were evenly divided. Additionally, each parent had two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father sought to dismiss the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father established that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods amounted to the child being with the father 56% of the time and with the mother 44% of the time.

The trial court denied the father’s motion for summary judgment, holding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

The Appellate Division reversed, holding that under the Child Support Standards Act, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. According to the decision, the CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.”

After analyzing the applicable case law, the Appellate Division stated that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. Where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—forced the court to make a finding that the mother was the non-residential parent.

Unlike the trial court which counted the waking hours each parent spent with the child, the Appellate Division decision held that the number of overnights, not the number of waking hours, is the most practical and workable approach. The court stated that:

Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing (see e.g. Higgins v. Higgins, 50 A.D.3d 852 (2d Dept. 2008) [food, clothing and shelter costs are inherent to the basic child support obligation]). Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child’s activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties’ parenting time and possibly modify the custodial parent designation. Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”.

Thus, Rubin makes it clear that even in shared custody situations, the courts will seek to determine who is the residential parent for child support purposes.  In some respects, counting overnights makes it easier for the courts, however, under certain circumstances, counting overnights only does not represent a true picture of parental involvement.  At the same time, this decision introduces much needed clarity.