- Statute law: Under the NY CSSA, child support obligations are always paid from the noncustodial to the custodial parent.
- The CSSA does not establish a clear and fair way to determine child support obligations when custody is truly equally shared and there is no obvious custodial and non-custodial parent.
- Case law: New York courts have affirmed that the noncustodial/custodial framework must be applied even in shared custody cases, but have established two different and apparently conflicting methods for determining how to designate the custodial and noncustodial parent:
- Bast (1998): When custody is truly equally shared, by default the higher income parent will be designated as the noncustodial parent for the purpose of determining child support obligations.
- Riemersa (2011): The court must find a noncustodial parent based on the reality of the children’s living situation. If custody seems otherwise equal, it can consider details such as which parent spends more waking hours with the children.
1: Statute law
Under the New York Child Support Standards Act, the noncustodial parent pays child support to the custodial parent – always. The base payment is calculated by a formula applied to the parents’ incomes, and on top of that the noncustodial parent will contribute to the custodial parent’s childcare expenses, as well as certain other expenses.
For example, if the custodial parent earns 75k while the noncustodial parent earns 25k, by default, the noncustodial parent would have to pay the custodial parent $4,250 per year. If the custodial parent pays $10,000 per year in child care, the noncustodial parent would have to send them an additional $2,500 per year.
That might make sense if the noncustodial parent has the child every other weekend plus two weeks in the summer. But what if the custody arrangement is split 60%/40%? Or even 51%/49%? In that case, the noncustodial parent is almost certainly paying child-related expenses, including childcare, out of pocket. Their childcare expenses alone may be nearly as high as the custodial parent’s. Under the default CSSA calculation, a poorer parent with 49% custody would end up being responsible for paying the entirety of her own childcare costs while also being obliged to contribute to the childcare costs of the richer parent with 51% custody.
Some other states deal with this apparent injustice by using a “proportional offset” method that factors the proportion of custodial time into the calculation of the child support obligation, but the CSSA offers no such solution. Thus, it has been up to the courts to find a solution. Despite the fact that it has now been over thirty years since the enactment of the CSSA, no clear answer has emerged.
2: Case Law
In 1998, the New York Court of Appeals in Bast v. Rossoff affirmed that the proportional offset method could not be applied in New York, and that the CSSA’s basic steps for calculating support apply: Even in an apparently shared custody arrangement, the court must somehow find a custodial parent in order to calculate the noncustodial parent’s default support obligation. The court may find that obligation unjust, in which case it must order a deviation, but it must justify the deviation according to the factors listed in Domestic Relations Law § 240[1-b][f].
Bast did acknowledge that the court will only be able to identify which parent has more physical custody in “most,” as opposed to all, instances, and did not provide further guidance.
Two later cases rely on Bast to offer two different approaches to the question.
Baraby v. Baraby (1998, 3rd Department), decided only months after Bast, rules that in a case of shared custody, the best interests of the child suggest that the parent earning the greater pro rata share of the total child support obligation be deemed the noncustodial parent for the purpose of calculating a default child support order. (The 4th Department upheld Baraby and applied this method in Carlino v. Carlino, in 2000). 277 AD 2d 897 – NY: Appellate Div., 4th Dept. 2000
Riemersma v Riemersma (2011, 3rd Department), in contrast, implies that with enough ingenuity, it is possible to find the greater physical custody of one parent even in an apparently equally shared situation: it tabulated the parents’ custody times against the children’s sleeping times in order to find that the parent with more ‘awake’ hours is the custodial parent. In an outcome apparently the opposite of what would be ordered under Baraby, it ordered the father, who had more ‘sleeping’ hours, to pay child support to the mother even though he earned significantly less income and cared for the children for seven days out of every fourteen.
 The financial resources of the parents and the child, the standard of living the child would have had if the marriage had not ended, nonmonetary contributions of the parents toward the child, extraordinary expenses incurred in exercising visitation and “any other factors the court determines are relevant.”
 “We interpret Bast as requiring application of the CSSA to such situations to assure that children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their pre separation standard of living in each household. In order to effectuate this goal, where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support regardless of the labels employed by the parties.”
 The parents worked opposing shifts, and each parent would care for the children while the other was working. The court decided that since the mother worked night shifts, and thus had the children while they were awake, and the father worked day shifts, and had the children while they were sleeping, the mother spent more time with the children and was the custodial parent, and the father would pay support to her despite her higher salary. (Riemersma v Riemersma, 2011 NY Slip Op 03702 [84 AD3d 1474])