The "new normal" for child custody is parents sharing custody 50/50. The exact arrangements may vary case-to-case (alternating weeks, 2-2-3 schedule, etc), but the overall principle of equal time with each parent is probably the most common outcome for divorce cases these days, at least in Manhattan.
This raises interesting issues as far as the child support statute, which is based on the outdated assumption that one parent has "custody" and the other parent has "visitation." (Even those terms are outdated, as the courts now prefer that we say "parenting time" or "parental access.")
The reality is that the statute often leads to unfair results. Despite being aware of this fact for many years, the legislature has failed to act, and so we are left with a bad law.
The first case - Bast vs. Rescoff ("shared custody")
The first case somewhat on point was a 1998 dispute titled Bast vs. Rescoff.
This case dealt with what the court called "shared custody." What the court meant was that both parents had significant access to the children - though not necessarily 50/50. Nowadays, the notion that at a minimum, both parents will have substantial access is simply taken for granted. As recently as 1998, though, this was considered something of a novelty.
The question for the court was: Should the father's child support obligation be reduced, in consideration of the amount of time that he is spending with the children?
The idea is that the statute orders the non-custodial parent (in Bast it was the father, so I will use the masculine pronoun) to pay a certain percentage of his income in support. The statute does not differentiate between Father A who never sees his child (and therefore, never incurs any day-to-day expenses on behalf of the child) and Father B, who has his child for say, 3 nights a week. The reality is that Father B incurs increased expenses due to the time he has the child. Not only is he paying for the child's food and other daily expenses when the child is in his care, but he presumably needs to have a larger residence so that the child has suitable quarters in which to stay at his father's house.
Notably, the first type of expense (food, routine day-to-day expenses) reduces the Mother's needs by a corresponding amount because she is freed from that expense on the days that the Father has the child. However, under the statute she receives the same amount of money as a parent who has the child 7 days a week.
It may seem obvious that Father B should pay less child support than Father A.
However, the court ruled that they pay the same.
The rationale is that if Father B pays less than Father A, then every father would go into court asking for as much time as possible with the child, in order to reduce the expenses. I am not convinced that is how things would actually play out in real life, but the rationale does have a certain logic to it.
The second case - Baraby v. Baraby (50/50 custody)
A few months later, along came the case of Baraby v. Baraby, which presented the question of what to do when the parents share custody equally, 50/50.
In this situation, it stands to reason that the parents will spend the same amount of money on the child's day-to-day expenses, since the child is in each parent's care for an equal amount of time. Further, both parents obviously need to provide adequate quarters for the child to reside, since the child is spending equal time at each parent's house.
It also stands to reason, however, that if one parent's income is much higher than the other parent's, that some child support ought to be paid, since the child's expenses are a greater burden upon the parent with the lower income.
So, it should not be entirely surprising that the court in Baraby ruled that the higher-earning spouse would pay child support to the lower-earning spouse. However, one might have expected that the court would fashion some sort of rule that would mitigate the heavy weight of the statute (17% for one child, 25% for two) upon the higher-earning spouse.
That was not to be. The court ruled that under the New York child support statute, the higher-earning spouse is deemed to be the non-custodial parent, and the child support statute is applied without any adjustment whatsoever.
It is a very harsh decision for the higher-earning spouse.
An Example Which Demonstrates the Absurdity of the Law
The absurdity of the Baraby rule of law in certain situations (namely, where the parties have similar incomes) can be easily demonstrated.
Consider the following (this ignores tax considerations):
- The Mother's annual income is 75,000.
- The Father's annual income is $100,000.
- They have two children.
- They share custody 50/50.
Now apply the Baraby rule of law:
- The Father pays the Mother 25% of his salary = $25,000 per year.
- Now, the Mother's income is $75,000 + $25,000 = $100,000.
- Now, the Father's income is $100,000 - $25,000 = $75,000.
See what happened? The child support statute accomplished no purpose other than to reverse the parties' annual incomes.
In other words, financially, now the Mother is the Father, and the Father is the Mother.
That is all the statute did.
This situation, or something close to it, is not at all uncommon; and you can see how utterly absurd the result would be.
So how should a case with 50/50 custody be handled?
The best way to handle this situation is for you and your spouse to recognize the absurdity of the statute and to agree upon something that actually makes sense.
Nine times out of ten, the case can be handled this way because both parties are wiling to be at least somewhat reasonable on this issue, even if they may be fighting over equitable distribution of marital assets, or other issues.
In the rare case where the lower-earning spouse refuses to negotiate on this point, the higher-earner still has a couple of options.
First, he/she can decline to stipulate to 50/50 custody. The other parent's interest in avoiding the time, expense, and risk of litigating the custody issue may encourage him/her to agree upon a reasonable amount of child support at the same time that they agree on 50/50 custody.
Second, the higher-earner can make the best argument possible that as applied to this case, the statute is fundamentally unfair and the Court should deviate from the statute (which it has the discretion to do.) The higher-earner can make it known that he/she will press this argument in the interest of fairness. Indeed, it is hoped that in a situation like the one given above (where the statute serves no function other than to reverse the parties incomes), the Court would be forced to acknowledge the patent absurdity of the statute. Indeed, there is a well-known legal principle that a statute may not be interpreted in a way that leads to an absurd result. I would argue that the example given is a working definition of an absurd result.
So what would should you propose in the example given (100,000 vs. 75,000)?
In my view, it make senses for the parties' incomes to be somewhat equalized - though I believe it would be unfair to fully equalize. Taking into account tax considerations, namely that the 100,000 & 75,000 are gross income amounts, but child support is paid with net income, I would probably propose a child support figure of about 5,000 per year = about $400 per month.
In any event, if you find yourself in this situation, consult with your lawyer about how to approach this issue, with an eye toward reaching an amicable agreement that makes sense under the circumstances.