Do the Shared Custody Arrangements Alter the Scope and Methodology of Child Support Standards Act ?
In Baraby v. Baraby (250 AD2d 201 [3d Dept 1998]), the court held that "it is now settled that shared custody arrangements do not alter the scope and methodology of the Child Support Standards Act (CSSA)." (See Baraby, 250 AD2d at 203-204.)
The court further held that "the three-step statutory formula of the CSSA for determining the basic child support obligation must be applied in all shared custody cases." (Id. at 204.)
In doing so, the court held, the noncustodial parent must be directed "to pay a pro rata share of that obligation unless the court finds that amount to be 'unjust or inappropriate'." (Id.)
In determining how to identify the "non-custodial parent" in cases where the parties split evenly the physical custody of the child, the court in Baraby held as follows:
"We interpret Bast as requiring application of the CSSA to such situations to assure that children will realize the maximum benefit of their parents' resources and continue, as near as possible, their preseparation standard of living in each household.
In order to effectuate this goal, where, as here, the parents' 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, 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 for the purpose of support regardless of the labels employed by the parties." (Id.)
This Court finds that Hearing Examiner Wood improperly applied Baraby in this case when determining that respondent was the "non-custodial parent" for child support purposes.
In Baraby, the court had before it a fact pattern where the parents shared custodial periods with the child on an equal basis by alternating weeks thereby creating a true 50/50 split which made it impossible to identify a custodial parent on the basis of the respective time the parties spent with the child.
In Bast v. Rossoff (91 NY2d 723), the Court held that "In most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of the time." (See Bast, 91 NY2d at 728.)
The Court in Bast found further that "even though each parent has a custodial period in a shared custodial arrangement, for purposes of child support, the court can still identify the primary custodial parent." (Id. at 729.)
Accordingly, this Court finds that Baraby applies only to shared custodial arrangements where neither parent can be identified as having the child a majority of the time.