What is “shared custody?”

On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

I. Introduction:
Many parents in Family Court or Supreme Court matrimonial cases ask for “shared custody,” or equal time with their children. Until recently, the response was consistent: “Children need one place to call home” or “Children need stability.” However, more courts are now approving “shared custody” arrangements. This article will discuss: (1) what shared custody looks like, (2) when it is appropriate, and (3) how it affects child support.

II. What does a “shared custody” schedule look like?
When people come to my office asking for equal time, they often ask to alternate weeks:
One week with the mother, one week with the father. However, most people do not like this schedule in reality, because it means that each parent has to go every other week without seeing the children at all. In most “shared custody” arrangements, each parent has two weekdays apiece, plus alternating weekends. For example:

Week one: Monday (Father), Tuesday (Father), Wednesday (Mother), Thursday (Mother), Friday (Father), Saturday (Father), Sunday (Father.)

Week two: Monday (Father), Tuesday (Father), Wednesday (Mother), Thursday (Mother), Friday (Mother), Saturday (Mother), Sunday (Mother.) When the parents alternate Friday to Monday, and each parent gets two weekdays, the result is a shared custody schedule.

III. When is shared custody appropriate?
Parents with shared custody have to: (1) communicate, and (2) live reasonably close to each other. When children go from one parent’s home to the other’s during the week, the parents have to communicate frequently. For example, if one of the children has a school project, the child will begin the project at one home, and finish it at the other, thus  requiring the parents to talk to each other about it. Therefore, if one parent is afraid of the other, or if the parents cannot have a conversation without cursing at each other, then shared custody is impractical.

In contrast, if the parents can talk to each other civilly for purposes of co-parenting, then shared custody may be a feasible option. Simple logistics require that parents with shared custody live relatively close to each other. Each parent will be responsible for transporting the children to the same set of schools twice per week. If it is impossible for one parent to take the children to school twice per week, then shared custody is not possible.

IV. How does shared custody affect child support?
Many people assume that there is no child support if the parents share custody. This is incorrect. In Bast v. Rossoff, 91 N.Y.2d 723 (1998), the Court of Appeals found that the Child Support Standards Act applies to shared custody arrangements. In effect, this means that where the parents share custody, the spouse who earns more money pays child support. However, many people will shared custody can argue that they should pay less in child support than they would have to if they only had parenting time on alternating weekends.

The Family Court Act states that in determining an order of child support, the Court can consider “expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof,” so long as the child is not on public assistance. N.Y. Family Court Act §413(1)(f)(9)(ii). In other words, if one parent spends so much time with the children that it reduces the expenses of the other parent, then child support can be reduced so long as the child is not on a public assistance budget. However, this decision is within the Court’s discretion, meaning that the Court generally has the ability to do whatever it determines is best for the children.

V. Conclusion
Shared custody has many benefits. It can allow the children to grow up equally bonded to both parents, and it allows each parent to avoid being “labeled,” to both the children and to society, as the “non-custodial parent.” At the same time, parents seeking shared custody have to ensure that such an arrangement is practical. More importantly, it cannot be used to avoid child support. Like every application made during custody proceedings, a request for shared custody should only be made if it is truly in the children’s best interests.

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