You are here: / / WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE...

WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes:

We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that “neither can be said to have physical custody of the children for a majority of the time” … . In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes … . * * *

.. [W]hile counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time … , the reality of the situation must also be considered where there is a closer division of parenting time. * * *

… [T]his is a case in which the “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” … . Thus, “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” … . Matter of Smisek v DeSantis, 2022 NY Slip Op 05210, Second Dept 9-21-22

Practice Point: In a matter of first impression in the Second Department. the appellate court determined that where neither parent has custody of the children for a majority of the time, the parent with the greater resources should be deemed the noncustodial parent for child support purposes.

 

You might also like
THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT). ​
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).
PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
RENTAL PERMIT REQUIRED BY TOWN CODE WAS A CONDITION PRECEDENT TO THE LEASE; CODE PROVISION CREATED A PRIVATE RIGHT OF ACTION TO SEEK RESCISSION OF THE LEASE AND RETURN OF RENT PAID.
ATTEMPTED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE IS NOT A LESSER-INCLUDED OFFENSE OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE FOURTH DEGREE; SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE.
INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1).
Duty to Defend Broader than Duty to Indemnify.
NOTICE OF DEFAULT DID NOT ACCELERATE THE MORTGAGE DEBT; THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN IN THIS FORECLOSURE ACTION (SECOND 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

DEFENDANT DID NOT ADEQUATELY EXPLAIN HER FAILURE TO RECEIVE THE SUMMONS AND... DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING...