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Articles: Divorce and Matrimonial Law

How to Calculate Child Support under New York Guidelines in Special Situations:
Deviation from the Guidelines, Joint Custody, Split Custody, Failure to Disclose Income

By J. Douglas Barics
Revised August 2019

Several common situations arise which often cause confusion in calculating child support. The first is when the parents have joint custody. Second is when when a non custodial parent has more than one child with multiple custodial parents. The third is when one set of parents have multiple children and at least one child lives with each parent. A fourth common case is when parents agree to use a different amount of support which differs from a calculation under the guidelines. Fifth, is child support when one party fails to properly disclose income.

1. Mandatory Requirements when Child Support Deviates from the Child Support Standards Act

Parties may voluntarily agree to a different amount of child support, and the Court also has the authority to award child support that differs from CSSA guidelines. In order to do so, CSSA guidelines must be calculated and the reason for the deviation must be stated. This requirement cannot be waived by the Court or by the parties. Any order or agreement which deviates from guidelines which does not first state guidelines is a nullity and unenforceable. See DRL 240 (1-b)(f). Failure to meet these two requirements can be reversible error, or otherwise make the support order unenforceable by the non custodial parent. (i.e. the non custodial parent cannot rely on a defective agreement to prevent the custodial parent from seeking a new order of support).

This is a key concept in understanding the special situations listed below.


2. How to Calculate Child Support when there is an order of Joint Custody for Decision Making

Joint custody in this section refers to joint decision making, and applies when there is a residential and non residential parent. With joint custody becoming more and more popular, the statutory scheme enacted in 1989 has not been modified and is silent as to joint custody.

When there is a custodial and non custodial parent for custody, following the child support statute is clear. However, for the first ten years after the guidelines were put in place, it was not clear how they would apply to joint custody cases.

This issue was resolved in 1998 by the Court of Appeals in Bast v Rossoff, which held that when there is a residential and non residential parent who share joint custody, the residential parent is deemed to be the custodial parent for child support and the non residential parent is deemed to be the non custodial parent.

The trial court in Bast v Rossoff, the trial court agreed that statutory guidelines apply to joint custody arrangements, but held that the facts of the case required the court to determine child support outside of the statutory percentages and calculated child support under DRL 240 1-b(f) without calculating a guideline amount first.

An appeal was taken, and appealed again to the Court of Appeals, which rejected this approach. Instead, the Court of Appeals held that none of the mandatory steps under the child support statute cannot be waived by the court, and held that to comply with the statute, a calculation of guideline percentages must first be determined, and only then can a deviation from the guidelines can be considered under Domestic Relations Law 240 1-b(f). The court determined that the parent who has the child the majority of the time will be considered the custodial parent for purposes of complying with DRL 240, and the parent who has the child the lesser amount of time is deemed the non custodial parent. This ruling is only to comply with the requirements of DRL 240, and has no bearing on any order of custody's provision for decision making or parental access. The court in Bast also rejected any adjustment of child support based on the time the child spends with each parent, noting that the legislature considered this is a factor but rejected it when enacting DRL 240 and FCA 413.



3. How to Calculate Child Support when Parenting and Access Time is Exactly Fifty-Fifty with Each Parent

Bast v Rossoff dealt with the issue of joint custody, but did not address how child support should be calculated under the statute when the child spends equal time with both parents.

This issue was addressed by the Third Department case of Baraby v Baraby and remains good law today,. It held that when the child spends exactly fifty percent of the time with each parent, compliance with CSSA guidelines is still required, as there is no exception for shared custody. Therefore, in order to comply with these mandatory steps under Domestic Relations Law 240, the parent with the greater income shall be deemed the non custodial parent, while the custodial parent shall be the parent with the lesser income. The court continued that a deviation from the guidelines may very well be appropriate, but that such a calculation is required under the holding of Bast v Rossoff and the language of DRL 240.

Baraby is often misunderstood to mean that in shared custody, the parent who earns more must pay guidelines. It does not. It says that since there is no exception spelled out for shared custody, it must be addressed by a deviation, and in order to issue an order which deviates from CSSA guidelines, a guideline award must be calculated first.


4. Child Support is not Dependent on the Amount of Time the Child Spends with Each Parent

The question as to how to determine the amount of time a child spends with each parent was addressed in Rubin v Salla. In Rubin, the Appellate Division First Department held that it was the number of overnights that determine which parent is the custodial parent. The Court in Rubin rejected using the number of hours the child spends with each parent while the child is awake.


5. How to Calculate Child Support when the Non Custodial Parent has Children with More than One Custodial Parent

When one non custodial parent has children with two or more custodial parents, each support case calculated separately, with the non custodial parent deducting any existing support orders from any new support orders. Domestic Relations Law 240 (1-b) includes child supports as mandatory deductions in determining adjusted gross income. Therefore, the custodial parent who files first will be entitled to support based on the full amount of the non custodial parent's income. A second order of support will be based on the non custodial parent's adjusted gross income, less the amount of the first order.


Parent "A" has two children, one living with Parent "B" and the other with Parent "C." When parent "B" obtains an order of child support, the order will be 17% of parent A's adjusted gross income. Assuming parent "C" obtains an order of support after parent "B," the order will be 17% of parent A's adjusted gross income less the support order involving parent "B."


5. How to Calculate Child Support with Split Custody

Sometimes one family will have multiple children with each parent having custody of one or more child. In those cases, child support will be calculated normally for each parent. The parent paying less support will have that amount deducted from the parent paying more support.


Assume three children, with one child living with the mother and two children living with the father. The mother's child support will be based on one child; 17% of the father's adjusted gross income. The father's child support will be based on two children; 25% of the mother's adjusted gross income. Assuming the support due the father is more than the support due the mother, the final result will be a payment from the mother to the father in the amount of 25% of the mother's adjusted gross income less 17% of the father's adjusted gross income.


6. How to Determine Child Support when Faced with Hidden or Undisclosed Income

Calculating the proper amount of child support under the guidelines is based on the assumption that both parents have fully disclosed their incomes. Unfortunately, some parents attempt to hide, artificially reduce or otherwise fail to disclose their true income. When this occurs, there are several options available to the other party.

(a) Discovery

Both parties to a child support proceeding are required to make certain financial disclosure. Mandatory disclosure includes financial affidavits, tax returns, pay stubs and W-2 forms. If either party believes the other party failed to disclose additional income, that party is free to engage in additional discovery for information. This includes an examination before trial (also called a deposition), interrogatories, and a request for documents. In some cases, this type of discovery may lead to additional clues as to actual income. The retention of a private investigator is also an option.

(b) Imputed Income

When a court determines that one party is earning less than they are capable of, such as when a party intentionally reduces his or her income, the court is empowered to impute additional income to that party and base child support on actual earning capacity. When the actual earning capacity is unknown, the court may impute income to a party if the proven expenses are greater than the stated income.

(c) Preclusion orders

In addition to the above, whenever a party fails to disclose required financial information, another penalty the court may impose is to preclude (prohibit) that party from offering any evidence at trial.

(d) Failure to Disclose needs based award of support

Domestic Relations Law 240 (1-b)(k) and Family Court Act 413(k) gives the court an additional remedy to deal with the failure to disclose. When one side, usually the non custodial parent, defaults or has presented insufficient evidence to determine income, the court may order child support based on the greater of either the needs or the standard of living of the child. In addition, if the income of the non custodial parent is later determined and the guidelines would have given a higher award, the custodial parent may obtain an upwards modification, retroactive to the date of the first petition, without a showing of a change in circumstances.

About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.

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Disclaimer: The article "How to Calculate Child Support under New York Guidelines in Special Situations: Deviation from the Guidelines, Joint Custody, Split Custody, Failure to Disclose Income" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.