The purpose of this discussion is to explain how the courts look at shared custody and payment of child support. Initially, we are going to define shared custody as a child or children spending equal time with each parent. That is to be contrasted with the legal term of joint custody, which refers to joint decision making even if a child or children reside primarily with one parent.
First of all, the notion that child support is waived in a shared custody arrangement, should be immediately dispelled. There is a presumption in the law that children are entitled to be supported by the natural parents and more specifically, with support paid by the non-custodial parent. In a shared custody arrangement, unless the parties are earning substantially equal incomes, some support is usually paid. Since most cases are resolved by way of a settlement or stipulation, that will be addressed first.
It is often the case that when considering child support, two calculations will be made. First, with the higher earning parent paying the statutory amount of income to the other parent based on that parent’s share of combined parental income, and a second calculation by the second parent paying child support to the first parent based on the second parent’s share of combined parental income. Then, the lower amount is subtracted from the higher amount, and the difference is then paid from the higher earning parent to the lower earning parent. It should be emphasized that this is subject to negotiation, and is not set forth in the Child Support Standards Act (CSSA).
In the event that the parties initially agree on an equal shared custody arrangement, but cannot agree on child support, the issue will be determined by the court. In this scenario, it should be understood that the court is not in any way obligated to perform the calculations as set forth above. In fact, some court decisions state that even in equal and shared custody arrangements, the parent that earns the greater income will be deemed the non-custodial parent, and directed to pay child support to the lower income parent in any manner that the court determines.
Initially, there will be a calculation utilizing the formula in the Child Support Standards Act (CSSA), which will result in what will be referred to as the full amount of child support. The higher earning parent would then attempt to persuade the court to deviate from the presumptively correct, or full amount of child support pursuant to the Child Support Standards Act (CSSA). Although deviations do occur, it is risky for the higher earning parent to first agree in writing to a 50/50 shared custody arrangement, and then allow child support to be determined by the court. Rather, it would be preferable to negotiate a shared custody agreement and a child support agreement simultaneously, in order to avoid the court making a determination that one party may feel is unfair.