In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)

Under the law, the court may depart or vary from the statutory formula based on a finding that the noncustodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate. In order to deviate from the formula, the court must specifically set forth the statutory factors it considered and the reasons that it did not order the basic child support obligation.

Judge Aronson found the mother’s arguments compelling. The parties’ incomes were similar; the father’s net income for child support purposes was $72,033; the mother’s was $66,578.

However, the mother had student loans totaling $35,865, requiring a monthly payment of $300; and a $9,000 credit card balance requiring a monthly payment of $420. (The mother testified that her husband was employed, but did not contribute to the expenses listed in her financial disclosure affidavit.) On the other hand, the father was able to bank 10 percent of his earnings in a 401(k) plan and had a 401(k) balance of $210,000, a DMA account balance of $29,000, and an IRA balance of $20,000.

According to the CSSA, here, the 17% total parental support obligation for one child, based on the combined parental income, was $23,563.87. The father’s 52 percent share of that total obligation was $12,253.21 per year, or $471 biweekly. The father provided health and dental insurance coverage for the child at a cost of $159.18 per month. The mother’s 48 percent share of that expense was $76.40 per month or $35 biweekly. Thus, the father’s net CSSA biweekly support obligation was $436.

In this case, the only disputed testimony related to the time each parent spent with the child. This issue was fully developed by the testimony and evidence submitted by the parties. Judge Aronson elected to make new findings of fact and issue an order without holding a new hearing.

The parties’ 2011 consent agreement establishing custody and visitation provided for primary physical residence to mother. The father’s basic visitation schedule consisted of three weekends per month, one night during the week (as agreed), and holidays and vacations (as agreed). For the 2015 calendar year, the evidence showed that the child spent about 33.74 percent of all hours with the father, and thus the child spent about 66.26 percent of all hours with the mother. The child spent 40.27 % of all days with the father, but this percentage is skewed because some of the “days” were not overnights. Courts have declined to accord greater weight to the custodial days as compared to the overnight custodial periods.

Judge Aronson noted that it was well settled that the costs of maintaining suitable housing and providing food and clothing for the child during the non-primary custodian’s time with the child do not constitute extraordinary expenses that would justify a deviation from the statutory formula. Expenses incurred in exercising visitation for housing, food and clothing are not considered a basis for authorizing a deviation. The cost of entertainment is not an extraordinary visitation expense for purposes of calculating child support.

Judge Aronson noted that the Court of Appeals in Bast v. Rossoff, 91 N.Y.2d 723 (1998), considered and rejected the notion of adopting a “proportional offset” formula under which each parent’s pro rata share of the basic child support obligation would be multiplied by the percentage of time the child spends with the other parent. The two resulting amounts would then be offset against each other, and the net paid to the parent with the lower amount.

Although, here, the support magistrate did not state that he employed a proportional offset formula, Judge Aronson thought it was clear from the magistrate’s findings of fact that he based his decision solely on the ground that the child spends 35 to 40 percent of the time with the noncustodial parent.

In my view, in shared custody cases, the amount of time the child spends with the noncustodial parent is not the driving force for a deviation.

Therefore, Judge Aronson concluded that in the absence of some other compelling factor, where the child spends 33 to 40 percent of the time with the noncustodial parent, a deviation in child support from the presumptively correct amount is not warranted.

Susan S. Cooney, Esq., represented the father. The mother represented herself.