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Decades Of Litigation Experience


by | Jun 2, 2021 | Firm News |

By Jennifer L. Garber, Esq.

In New York State, only the “custodial parent,” i.e., the parent who has the child(ren) for the majority of time (counting overnights), is entitled to receive child support. But what happens in situations where the parties share the children equally?

It is a common misconception (and sometimes a misguided litigation strategy) that when parents share equal time with the child(ren), no child support will be exchanged between them. In New York, even if parental access to the child(ren) is equal, the greater monied spouse is liable for the payment of child support to the lesser monied spouse (who is then deemed the residential/physical custodian for child support purposes).

In the Matter of Conway v. Gartmond, the Appellate Division, Second Department, reaffirmed that “[w]here neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support.” Matter of Conway v Gartmond, 144 A.D.3d 795, 796 (2nd Dept. 2016). The Court further explained that this is true regardless of whether one party has sole legal custody of the child(ren). See also Matter of Mitchell v Mitchell, 134 A.D.3d 1213 (3rd Dept. 2015); Leonard v. Leonard, 109 A.D.3d 126 (4th Dept. 2013).