The husband and wife after a bitter and acrimonious divorce trial were granted equal amounts of parenting time with the child, however the husband due to the fact that the parties cannot communicate was awarded "sole legal custody" with the right of decision making. The trial court awarded the father child support to be paid by the mother whose income was over $100,000 less than the income of the father.
An upstate appeals court reversed the determination of child support and instead sent the case back for a determination as to what amount of child support the father should pay to the mother.
For many years the law has been clear that where parents have joint legal custody and equal parenting time the court is to "presume" that for purposes of the
child support calculation the parent with the higher income is the non-custodial parent and that the child support formula should be utilized to calculate child support. Thereafter, the court can, in its discretion, modify the amount of child support for "other factors" which can include the shared parenting schedule. The concept was that the child should not have a complete disparity in living conditions in the two residences due to the absence of child support from the parent with the greater income.
What makes this case unique is that the concept was applied to a determination of "sole custody". The court stated that even though there was a proper determination of sole custody, the child is still spending an equal amount of time with both parents and therefore the practical reality of the child's residence with both parents was the critical factor. The amount of child support remains to be decided by the trial court after the appeal.
Since custody and child support issues are major issues for all parents involved in a custody dispute, it is critical to obtain legal advice from an experienced matrimonial attorney. This is especially true since the law continues to develop and be interpreted every day. Please contact my office so that I may assist you in resolving these very important issues.