Fourth Department Rejects Child Support Offsets
Sara Stout Ashcraft
In a recent Decision, the Fourth Department Appellate Division addressed an issue that has been lurking around child support calculations for many years. Livingston Co. Support Collection Unit o/b/o Yusko v. Sansocie, 180 CAF 21-01261 (4th Dept., 2022). That is, the issue of how to calculate appropriate child support when each parent has the children for half of the time.
When the Child Support Standards Act (CSSA) [Family Ct. Act §413] became law in the 1980s, social circumstances were very different: When possible, mothers with younger children often stayed home to care of them, while the fathers commonly saw the children on alternate weekends. The very language of the CSSA refers to the “custodial parent” and the “non-custodial” parent, with the “non-custodial” parent paying child support to the other parent. However, times have changed: Often both parents are in the workforce, many children are in child care, and the amount of time the children reside with each parent may differ significantly from “every other weekend” for the “non-custodial” parent. Additionally, in many divorce and Family Court cases since the 1990s, the parties are awarded joint legal custody as opposed to “custody” awarded to one party, and “visitation” awarded to the other. Further, over the past few years, there has been an increase in cases in which each parent is awarded significant residency time with the children—“shared residency.” At times, in these cases the parties will agree to do a “net out,” with the higher income parent paying the other one the difference between what each would owe the other under the CSSA calculations. However, this does not mean that the court can simply direct that be done.
In Yusko, the issue before the Appellate Court was whether the Livingston County Family Court Support Magistrate “erred in deviating from the presumptive support obligation calculated pursuant to the [CSSA].” In this case, the parents had an approximately 50/50 shared residency arrangement for of the children, with the father being designated the “primary custodial parent.” The Support Magistrate determined that as the mother had the children with her essentially half of the time, and “because the mother incurred expenses for the children's ‘food, clothing, shelter, utilities, cell phones, transportation, and extracurricular activities during the times they were with her, she should be granted a variance from the presumptive support obligation.”
The Fourth Department found that the Support Magistrate's determination was erroneous, stating that, “It is will settled that ‘[s]hared custody arrangements do not alter the scope and methodology of the CSSA.' Bast v. Rossoff, 91 NY2d 723 . Further, “Indeed, the Court of Appeals has ‘explicitly reject[ed] the proportional offset formula' whereby the noncustodial parent's child support obligation would be reduced based upon the amount of time that he or she actually spends with the child. (Id.) To the contrary, a court must calculate the basic child support obligation under the CSSA, and then must order the noncustodial parent to pay his or her ‘pro rata share of the basic child support obligation, unless it finds that amount to be ‘unjust or inappropriate.'” (Id.), and referencing Family Ct. Act §413 [f][g].
“Although ‘extraordinary expenses incurred by the non-custodial parent in exercising visitation' with a child not on public assistance may support a finding that is unjust or inappropriate, ‘[t]he costs of providing suitable housing, clothing and food for [a child] during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount.” citing, Matter of Ryan v. Ryan, 110 AD3rd 1176 [3d Dept. 2013], and Matter of Firenze v. Firenze, 181 AD3d 1198 [4th Dept. 2020].
The Appellate Court did not render a decision that the “presumptive support obligation is unjust or inappropriate,” because the record lacked an “evidentiary basis for doing so.” The Court did vacate the child support amount set by the trial court and remitted the case to the Family Court to determine the mother's appropriate support obligation. This case should cause litigants and attorneys to consider whether they can continue to assume that in a shared residency arrangement there will be a reduction in the amount of child support paid by the higher earning parent.