You are here: / / Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the...

Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant

The motion court awarded child support from the father to the mother, who, by virtue of the motion court’s schedule, did not have custody of the child the majority of the time.  In a full-fledged opinion by Justice Richter, including a dissent, the First Department reversed the motion court, finding that the award of child support, in a shared custody arrangement, must be based solely on the amount of time the child spends with each parent, and not on their respective financial situations.  Therefore, the parent who has custody the majority of the time is deemed the “custodial parent “who cannot be ordered to pay child support to the “noncustodial” parent.  The First Department wrote:

Under the CSSA’s [Child Support Standards Act’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 (emphasis added)” … . The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction. * * *

…[T]he father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes… . * * *

 In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff [91 NY2d 723], allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal. Rubin v Della Salla, 2013 NY Slip OP 02681, 6669, 1st Dept 4-18-13

 

You might also like
PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT LANDLORD’S BUILDING, DID NOT RAISE A QUESTION OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER, WHO ENTERED THROUGH AN ALLEGEDLY BROKEN DOOR, OR A TENANT OR AN INVITEE; IF THE ASSAILANT WERE A TENANT OR INVITEE, THE ALLEGEDLY BROKEN DOOR WOULD NOT BE A PROXIMATE CAUSE OF PLAINTIFF’S INJURY (FIRST DEPT).
Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court
DEFENDANT’S EMPLOYER (TOMS) WAS NOT LIABLE FOR THE ACTS OF DEFENDANT EMPLOYEE (ROSNER) WHICH WERE NOT DONE WITHIN THE SCOPE OF ROSNER’S EMPLOYMENT OR TO FURTHER TOMS’ BUSINESS (FIRST DEPT). ​
DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT).
Apportionment of Damages Between the City and the Contractor Who Negligently Set Up Lane Closures for Its Highway Work Was Not Supported by the Weight of the Evidence—New Trial for Apportionment of Damages Ordered/Two-Justice Dissenting Opinion Argued that Plaintiffs’ Counsel’s Vouching for His Own Credibility and Attacking the Credibility of Defense Witnesses In Summation Warranted a New Trial
DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE.
People Were Not Required to Disclose (Prior to Trial) Confession Made by Defendant to Health Care Worker
DEFENDANT’S SLOW MOVING TRUCK FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE CAUSE OF THE COLLISION, DIFFICULTY SEEING BECAUSE OF SUNLIGHT DID NOT CONSTITUTE A NON-NEGLIGENT EXCUSE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure to Record Testimony Relied Upon by Hearing Officer Required Annulme... Question of Fact About Whether Driving to or from Work Constitutes an Act Within...