No two custodial arrangements are the same. They are as different as the children and parents themselves. As a result, the application of a presumptive child support award to the “deemed” custodial parent is inherently arbitrary.

Take the May 5, 2011 decision of the Third Department in Riemersma v. Riemersma. The issues in the parties’ divorce concerning support of their twins had been referred to Family Court Support Magistrate Jonathan A. Heussi. The Magistrate determined in his October, 2009 order that the mother was the custodial parent.

The mother was a State Trooper working seven 7:00 p.m. to 7:00 a.m. shifts out of every 14 days. She earned $87,857 annually. The father, an urban forestry program manager, worked weekdays from 8:00 a.m. to 4:30 p.m. He earned $50,392 annually.

The parents crafted their parenting plan so that each parent would care for the children while the other was at work. Overnights were divided equally. However, because of the mother’s night-shifts, the court determined that the children spend 65% of the time with their mother. As a result, Magistrate Heussi’s finding that the mother was the custodial parent for C.S.S.A. purposes was affirmed a year and a half later in this appellate decision.

Strictly applying the C.S.S.A. formula would have resulted in the father paying $442 bi-weekly as his base support obligation. The magistrate had determined that such an award would have been unjust and inappropriate. Instead, he awarded the mother $200 bi-weekly.

With joint or shared arrangements the identification of the deemed custodial parent should be based upon the “reality of the situation.” The appellate court agreed the mother should be deemed the custodial parent. While a mechanical comparison of hours was not countenanced, the overall time spent with each parent was to be considered. Here, presumably because the mother worked while the children slept, she spent more time “with the children.”

The appellate court also approved the monetary result, but criticized the Magistrate for his reliance upon each parent’s need to maintain a suitable residence for the children. The “Support Magistrate failed to specify the factors relied upon to deviate from the presumptively correct child support amount or the extent, if any, of the expenses justifying such a deviation . . . . Indeed, at the fact-finding hearing, defendant testified that he had not incurred any unusual or extraordinary expenses related to the care of the children.”

Furthermore, we have previously held that the costs of maintaining suitable housing and providing food and clothing for the children during custodial periods do not constitute extraordinary expenses that would justify a deviation from the statutory formula.

Nonetheless, based upon the appellate record, the Third Department was able to determine that the application of the presumptive formula would have been unjust and/or inappropriate based the non-monetary contributions of the father and the fact that the father’s income was substantially less than the mother’s.

Did the Court truly plan for the reality of these twins’ situation? A rule of law that shelter, food and clothing expenses of the “non-custodial” parent do not warrant a departure from the application of C.S.S.A. formula does make certain sense when considering the alternate-weekend dad. However, here, the parenting plan was a sharing arrangement, with each parent covering for the other. Each parent had clothing, toys, etc., for the children. Neither relied on the other to provide them.

In noting that the Magistrate did not specify the expenses of the father which justified a reduction of “his” basic support obligation, the court also did not mention what extraordinary expenses the mother was incurring which the father was also not facing and which would have warranted an award of support to the mother.

Indeed, in the arrangement chosen by the parties, with its likely variables for work-shift changes, school and activity schedules, etc., it might also be suggested that it was the mother, in light of her superior income, who now should be paying child support to the father. Perhaps the goal of the support award should have been to tend to equalize the residences which the twins will share as they grow.

Indeed, such is the effect of applying the three-step C.S.S.A. process detailed in Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998) and applied to equally-shared arrangements in Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998):

Nevertheless, 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 . . . .

The presumptive formula has a worthy goal of providing increased resources to the single parent raising children. However, here, the rules and precedents relied upon by the Third Department appear to miss the marks of dealing with the “reality of the situation,” keeping these parents out of court in the future, and promoting the parenting involvement of both parties. Such is in the best interests of the children.