A Manhattan?Appellate court was recently asked to decide whether a parent who has primary physical custody of a child in a shared custody arrangement can be ordered to pay child support to the other parent. The court concluded that the plain language of the Child Support Standards Act (CSSA), as interpreted by the Court of Appeals (New York State’s Highest Court), left trial courts with no discretion to order the payment of child support to the non-custodial parent. The court held that the CSSA, as well as prior rulings of the Court of Appeals, has unambiguously held that a custodial parent who has a child a majority of the time cannot be directed to pay child support to a non-custodial parent.

The case Rubin v. Della Salla involved an unmarried couple with a 9-year-old son. The couple met in the early 1990s. They became romantically involved in 1998. They never moved in together. In November 2003, the mother gave birth to the couple?s son. They continued to live separately. The relationship ended in 2007. Shortly thereafter, the father met his current girlfriend and became involved in a committed relationship. Subsequently, the time spent with his son progressively increased. The mother had not been employed since 2001. By 2009, the father was spending more time with the son. In April 2009, the mother commenced a lawsuit seeking sole custody of the child and an Order compelling the father to pay child support. The case was tried in May 2011. After a ten day trial, the court ordered primary physical custody to the father during the school year with the mother having parenting time on alternate weekends. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday over nights and alternate weekends with the father. The court ordered that the father have final decision making authority after consultation with the mother over educational and medical issues. The father argued that due to the judgment of the trial court, he could not be ordered to pay child support to the mother who was the non-custodial parent. Due to the disparity in the income between the father and the mother, the trial court found that he could be ordered to pay child support.

The father then filed an appeal and on appeal the appellate division found that the father, as the custodial parent, could not be directed to pay child support to the mother. The court cited the plain language of the CSSA, which states

The court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.

The appellate court also cited the 1998 Court of Appeals decision,?Bast v. Rossoff, which addressed how child support awards should be calculated in cases involving shared custody. In the Bast case, the high court found that the CSSA applies to shared custody cases and that,

child support in a shared custody case should be calculated as it is in any other case.

The court instructed that after determining the child support obligation

the trial court must then order the non-custodial parent to pay.

The Bast case made clear that, even in shared custody cases, courts are required to identity the ?primary custodial parent.? In most instances, the parent with physical custody the majority of the time is deemed the custodial parent for child support purposes. Only where the parent?s custodial time is truly equal have courts taken into consideration the higher income of one of the parents for child support purposes. In the Rubin case, the appellate division noted that since the father clearly had custody the majority of the time and was the primary custodial parent, his income could not be taken into consideration and he could not be ordered to pay child support.

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