Bast v. Rossoff

• Decision Date: 27 November 1995
• Citation: 635 N.Y.S.2d 453,167 Misc.2d 749
• Parties: Michael BAST, Plaintiff, v. Shelley R. ROSSOFF, Defendant.
• Court: New York Supreme Court

Page 453

635 N.Y.S.2d 453

167 Misc.2d 749

Michael BAST, Plaintiff, v. Shelley R. ROSSOFF, Defendant.

Supreme Court, New York County.

Nov. 27, 1995.

Howard Felcher, Felcher & Felcher, New York City, for Plaintiff.

Mark S. Helweil, New York City, for Defendant.

LEWIS R. FRIEDMAN, Justice.

This case raises the question of how much child support should be paid when there is "shared" or "joint physical" custody. A review of the New York decisions on the subject reveals that their stated analyses neither answer the question nor provide any guidance. This opinion, therefore, seeks to discern whether there is a rule which should be applied to joint physical custody cases. The court concludes that the application of the Child Support Standards Act percentages is inappropriate in cases of shared physical custody.

These parties were married in September 1986. Their child, Morton Elizabeth, was born March 15, 1989. The parties separated in July 1990. In February 1992, the custody and visitation issues were resolved by stipulation before a justice of the court. The parties agreed that they would have joint custodial decision making. There was also a "shared time allocation." Plaintiff ("Father") is to have his daughter with him from Wednesday evening to Sunday evening during alternate weeks and from Wednesday evening to Thursday morning during the other week. There is no pre-set schedule for vacations; the parties deal with that issue on an ad hoc basis.

The threshold question is whether the Child Support Standards Act ("CSSA"; Domestic Relations Law § 240[1-b] ¹ applies to cases of joint physical custody. The language of the CSSA would lead to a conclusion that it does not apply. The substantive provisions of the statute that governs support use the terms "custodial parent" and "non-custodial parent." It is clear from a linguistic and structural analysis that the CSSA does not address a joint custody situation, involving a sharing of physical custody of the child or children, where there is no designated "custodial parent" (see 1 Tippins, New York Matrimonial Law & Practice, § 5A:57 at 110-111). If there is no "custodial parent" to receive payments there is also no "non-custodial parent" to make the payments. The concept of shared parenting time simply does not appear anywhere in the statute. Despite the statutory language the Third Department has consistently held that the CSSA applies to joint custodial arrangements (Nicholas v. Cirelli, 209 A.D.2d 840, 619 N.Y.S.2d 171 [3rd Dept.1994]; Matter of Holmes v. Holmes, 184 A.D.2d 185, 592 N.Y.S.2d 72 [3 rd Dept.1992]; cf. Matter of Kerr v. Bell, 178 A.D.2d 1, 3, 581 N.Y.S.2d 879 [3rd Dept.1992]; Matter of Smith v. Smith, 197 A.D.2d 830, 602 N.Y.S.2d 963 [3rd Dept.1993].

Matter of Kerr v. Bell appears to be the seminal authority on the subject. That case actually dealt with a "split custody" arrangement, where one parent had custody of four children and the other had custody of one child; it was not a "shared" custody case. The court noted that both parents were "simultaneously" "custodial and non-custodial" parents. The court, therefore, concluded, without extended discussion, that it would not hold the CSSA inapplicable. In Matter of Holmes v. Holmes, a shared custody case, the mother had physical custody of the children 60% of the time. The majority of the Third Department would not designate her the "primary custodian" rather the court found the parents to be both custodial and non-custodial simultaneously. The Third Department majority relied on Matter of Kerr v. Bell and again refused to conclude that the CSSA should not apply. The two-justice dissent noted that in joint, or "shared", custody the designation of "custodial parent" shifts with the child's location. Therefore the dissent would look for the parent who had the majority of custodial time and designate that parent as the "custodial" parent for the purposes of the support statute. In both Holmes and Kerr the matter was remanded for further calculations. In Kerr the court required the fact finder to look at each individual household rather than apportioning one-fifth of the CSSA amount to one child. That of course followed from the parties' split custody arrangement (see Riseley v. Riseley, 208 A.D.2d 132, 622 N.Y.S.2d 387 [3rd Dept.1995], applying the CSSA percentages to each household in a split custody case). In Holmes the Appellate Division offered no guidance on how the CSSA should apply (see Florescue, Allegations of Waste, NYLJ May 10, 1993, p. 3, col. 1).

The other Departments have not spoken directly on the issue. (Cf. Harmon v. Harmon, 173 A.D.2d 98, 110, 578 N.Y.S.2d 897 [1st Dept.1992]; Matter of Isaac v. Clay, 202 A.D.2d 1047, 610 N.Y.S.2d 922 [4th Dept.1994]. The reported cases offer little guidance. In Harmon a "joint custody" case, the First Department did not discuss the theoretical problems by the application of the CSSA; the court merely noted that the mother was "primary caretaker and de facto custodian of the children." It is interesting, but not informative, that without any description of the time sharing arrangement, other than to note that the child "resides" with the mother, the Third Department in Nicholas v. Cirelli, supra found the mother to be "the primary caretaker and de facto custodian" since there was no "actual shared or split physical custody of a child" (209 A.D.2d at 840-1, 619 N.Y.S.2d 171). The Fourth Department shed little light on the subject when it held that child support was not due to the parent with the substantially greater income because "both parties have extensive custodial rights under the stipulated joint custody order" (Matter of Isaac v. Clay, supra ). In Harrington v. Harrington, NYLJ July 18, 1991, p. 27, col. 3 [Sup.Ct. West. Co.] [Colabella, J.] the court awarded joint custody but awarded child support to the mother as the "primary caretaker" relying on Matter of Kester v. Kester, 151 A.D.2d 815, 542 N.Y.S.2d 404 [3rd Dept.1989], a pre-CSSA case. In Sally R. v. Stewart R., 151 Misc.2d 307, 309, 573 N.Y.S.2d 231 [Fam.Ct. Dutchess Co.1991] the court criticized the application of the CSSA to a joint shared custody situation where the mother had "primary physical custody" and apportioned reduced child support based on the needs of the children and the proportion of needs provided by each parent. In Roy v. Roy, 188 A.D.2d 274, 590 N.Y.S.2d 468 [1st Dept.1992] the First Department in a split custody case rejected the application of the child support percentage of the CSSA and found the statutory formula "unjust and inappropriate".

The legislative history provides little guidance. The shared custodial situation was discussed at the federal level when the Family Court Support Act of 1988 [Pub L 100-485, 102 U.S. Stat. 2343], which mandated the CSSA, was adopted (see, e.g. US Dept. of Health & Human Services Office of Child Support Enforcement, Development of Guidelines for Child Support Orders [Sept.1987]. There was apparently no discussion of the issue at the state level.

"Joint custody" is a concept that developed in the 1980's in response to pressure from father's rights groups. In 1978 three states authorized joint custody (see M. Roman & W. Haddad, The Disposable Parent [1978], while by 1991 all but 8 states provided for joint custody by statute and the other 8 by case law (Joint Custody Statutes and Judicial Interpretations [App A], Joint Custody and Shared Parenting [J. Folberg, ed., 2d ed. 1991] 297-331). The meaning of "joint custody" varies from state to state. For example, California, which preferred joint custody in all cases, had a statutory definition: " 'joint custody' means joint physical custody and joint legal custody" (Calif Civ Code § 4600.5[d][1] [repealed Stat.1992, ch 162]. In New York the term "joint custody" generally is used to refer only to joint legal custody, or joint decision making (see e.g., Matter of Braiman v. Braiman, 44 N.Y.2d 584, 589- 90, 407 N.Y.S.2d 449, 378 N.E.2d 1019 [1978]; Matter of Venable v. Venable, 122 A.D.2d 374, 504 N.Y.S.2d 588 [3rd Dept.1986]; Voelker v. Keptner, 156 A.D.2d 1014, 549 N.Y.S.2d 297 [4th Dept.1989]. It is not the purpose of this decision to make the policy decision that results from the debate about joint custody. Some scholars find joint custody either to be harmful to women's interests or supportive of them (see e.g. K. Bartlett, Gender & Law Theory Doctrine, Commentary [1993] 372-7; B. Stark, Divorce Law, Feminism, and Psychoanalysis: In Dreams Begin Responsibilities, 38 UCLA L.Rev. 1483, 1525 [1991] and others wonder whether joint custody properly takes the best interest of children into consideration (see e.g. M. Brotsky, S. Steinman & S. Zemmelman, Joint Custody through Mediation: A Longitudinal Assessment of the Children, in Joint Custody & Shared Parenting, 26 Conciliation Ct Rev 53, 167 [1988]; E. Maccoby, C. Depner & R. Mnookin, Co-Parenting in the Second Year After Divorce, in Joint Custody & Shared Parenting, 52 Marriage & Fam, at 132, 151; Singer & Reynolds, "A Dissent on Joint Custody," 47 Md.L.Rev. 497, 506-7 [1988]. Suffice it to note that the scholarly debate shows, as the Court of Appeals noted in Braiman, 44 N.Y.2d at 589, 407 N.Y.S.2d 449, 378 N.E.2d 1019, that there is substantial dispute about the "wisdom of joint custody". The question before this court is to interpret the New York support statute in a fashion that makes sense of a situation not considered by its drafters.

It is clear to this court that in New York the mere designation of the parents as "joint custodians" should not affect the outcome of the case. There is obviously no reason why the sharing of legal decision making should have any impact on the need for or amount of child support. Also as noted above even the courts which apply the CSSA to shared custody do not have any theoretical concerns when there is a clearly designated "primary physical custodian" (e.g., Nicholas v. Cirelli, ...