“There is a gap in New York’s child support statutes. They do not contemplate a custodial parent paying support to a non-custodial parent.

The Family Court Act does declare that both parents are chargeable with the support of their children. Moreover, the Family Court Act does not make a distinction between the “custodial” and “non–custodial” parents when declaring that parents of a child under the age of 21 years ,“if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.” F.C.A. §413(1)(a). (The Domestic Relations Law contains no such preamble to its section providing for an award of child support within matrimonial actions.)D.R.L. §240(1-b).

However, those same Family Court Act and the Domestic Relations Law provisions provide that awards of child support “shall″ be made “pursuant to the provisions” of those subdivisions. The subdivisions, then, set out the presumptive formula to determine awards of child support. The presumptive formula is to be varied only in the event the court finds, based upon factors specified, that the “non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate.” In all events, the statutes only contemplate support being paid by the non-custodial parent to the custodial parent.

Although the statutes carefully define many of the terms used, “non-custodial parent” is never defined. Thus, in ever-increasing scenarios, the courts have had to decide who is the “non-custodial.”

In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals recognized that in most instances, the court can determine the custodial parent by identifying which parent has physical custody of the child for a majority of the time. In cases where the child’s time was divided approximately equally between the parents, the more-monied parent has been deemed the non-custodial parent because such a rule maximizes the benefits realized by the child at both homes. Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998).

Nonetheless, the best interests of a child may require an award of child support from the custodial parent to the non-custodial parent.

Take, for example, New York County Supreme Court Justice Ellen Gesmer’s February 29, 2012 decision in M.R. v. A. D. In that case, the court denied a father’s motion for summary judgment dismissing a mother’s claim for child support. In a painstaking decisionmade earlier in the case, Justice Gesmer (32 Misc.3d 512, 928 N.Y.S.2d 429) awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer gave the father primary custody during school year, and gave the more permissive and disorganized mother primary custody during summer and other school breaks.

These parents were never married to each other. Justice Gesmer noted that neither parent communicated well with other parent. The court had low expectations of both parents’ abilities to communicate effectively with each other, or to make decisions jointly.  Accordingly, given that each parent had shown strengths in decision-making for their son in different areas, and in light of the considerable level of acrimony between the parties, Justice Gesmer defined subject areas, or “spheres,” in which each party would be the final decision maker. The father was given decision-making authority in education and medical areas; the mother in the choice of summer camp or activity, extracurricular activities, and religion (the mother was Jewish and always celebrated Jewish holidays with the child; Justice Gesmer specifically enabled the father [described as not particularly religious] to celebrate with the child Christian holidays and other family church-based occasions).

As a result, the child would be with the father 56% of the time. It was the father who would be responsible for structuring the life of this special-needs child during the school year. In contrast, the child was with the mother for most of the weekend- and vacation time.

Nevertheless, the circumstances of this case clearly warranted an award of child support from the father to the mother.

The father was worth $20 million; earning millions of dollars each year. On the other hand, the mother, a licensed real estate agent, had a negative net worth and claimed no recent income other than support previously awarded.

Here. this child was entitled to a comfortable home when spending time with his mother. Moreover, and without judging the ability of the mother to earn a living or to take care of herself, the father could easily afford to pay child support, providing his child with the surroundings to which the child was entitled year-round.

In order to reach that result, Justice Gesmer was required to label the mother as the custodial parent. Whether or not this was a matter of fitting a square peg into a round hole, it was the right result for this child.

However, for the law to require Justice Gesmer to declare why, in this case, the father was the non-custodial parent was, simply, wrong and unnecessary. The child support statutes should have as a starting point an award of child support from the custodial parent to the non-custodial parent in accordance with the presumptive formula. However, if such an award would be unjust or inappropriate, as determined with reference to the enumerated statutory factors, the court should simply be empowered to make the appropriate award from one parent to the other, custodial or not. The statutes should be amended to give our judges the power to do make such decisions without having to defy logic and rules of statutory construction.