Who is the “Custodial” Parent?

Nowadays most couples I work with want some type of shared parenting so that each parent spends a significant amount of time with the children each week. I often see couples who divide time with their children equally week to week or share parenting so that each of them spends 3 or 4 days each week with the children. So who then is the “custodial” parent when determining child support under the Child Support Standards Act (CSSA)?

Most couples are aware that there is a formula in New York that determines the “presumptively correct amount” of child support and that the “non-custodial” parent must pay child support to the “custodial” parent if the parents separate or divorce.

The problem is that when the CSSA was adopted it did not define what was meant by the term “custodial” parent. And that lack of clarity has caused problems today when more and more couples are sharing parenting duties.

Since custody was not defined in the statute, the courts have developed a rule that it is based upon the amount of time each parent spends with the children. The parent who has the children even slightly more than the other parent is considered the custodial parent. And if parents spend exactly the same amount of time with the children, the courts have created a presumption that the parent who earns less money is the custodial parent, thereby causing the wealthier parent to pay child support to him or her.

This is a critical issue since, under the CSSA, child support is an “all-or-nothing” proposition. That is, there is no offset for the amount of time each parent spends with the children. You are either the custodial parent and receive child support or you are the non-custodial parent and you pay it!

In my next posting I will discuss a recent case where a court allowed a father with a net worth of over 20 million dollars to avoid paying any child support to the mother who was unemployed. While the result may have complied with the letter of the law, it is a perfect example of why parents should mediate family matters and stay out of court.

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