Courts Bending Over Backwards To Help Parties Settle Custody And To Avoid Making Real Decisions

Judges have stated, privately, that when it comes to custody disputes it is often difficult for them to really make decisions since they do not “live with the parties.”  Their decisions are based on the testimony of the parties; character witnesses; witnesses that have been present during certain occurrences; together with opinions of experts, the recommendations of an attorney for the child(ren); and the medical, educational and legal/procedural history of the case.

All things considered, courts do not like to make decisions in custody matters.  Most often, custody matters are characterized by no clear “winner”.

In matters where both parents are good candidates for custody (neither parent is a drug addict or a “bad parent”) it becomes increasingly challenging to award custody to one parent over the other.  Courts do not like to litigate cases where there are two good parents and they must determine which one is the “best” parent.

These are the most difficult cases because they often hinge on the availability of one parent versus the other to be home to provide care for the child(ren).  Availability is most applicable for children under twelve (12) years of age, and less relevant as the children become older than twelve (12) years of age.  Although availability might initially seem to be a good basis for awarding custody, it can also potentially appear to be sending a converse message to parents as well, since it punishes one parent for being an earner or a hard worker.

Other cases center the custody determination on school districts.  Some Judges have joked that it is no longer about which parent is better, when there are dueling “good” parents, it is often going to depend upon which parent resides in the best school district.  If both parents are willing to reside in the same school district, then you have the fight for joint parenting (joint shared parenting 50%-50% of the time).

Joint parenting is a very difficult decision.  In prior years, New York State has determined that in situations where one spouse was earning $50,000.00, and the other spouse was earning $60,000.00, both parents have been awarded equal, 50-50 joint parenting, and both parents also reside within the same school district, the parent with the higher income would still have to pay the applicable percentage of child support, derived from the difference between the dueling  parents’ salaries- ($60,000 annual salary minus the $50,000 annual salary = $10,000).  For two children, he/she would pay approximately $2,500.00 in child support per year as his/her income is $10,000 more and 25% of $10,000 is $2,500.00.

Under prevailing modern law, the parent who earns $60,000 in the above scenario, pays 25% of the entire $60,000 or $15,000.00 per year to the other parent.  This is so, even though they have an exact joint shared parenting.  This has caused a lot of people to believe that it is unjust or inappropriate to charge the person earning just a small amount more with the full amount of child support.   In theory, under the prevailing law, (which is the law that will be applied) if one parent earns $50,000 and the second parent earns $51,000, the person who earns $51,000, will pay full child support (25% for two children) on the entire $51,000, even if they share joint parenting and they share the exact same parenting time.

In addition to the above scenarios, there is often disagreement as to what constitutes exactly fifty (50%) percent of the parenting time.  For example, a person who works until 9:30 pm, to pick up the children every single night just to put them to bed at 10:00 p.m. and have every single overnight, they have less than five (5) hours waking time during the week, but if that person’s spouse is a school teacher (home by 3:00 p.m.) that person could have 35 hours of waking time, but no overnights during the week.

Does joint shared parenting equal fifty-fifty (50-50%) percent of the time, when most of the waking time is with one parent, and most of the sleeping time is with the other parent and is it appropriate to vie or to posture for fifty-one (51%) percent of the time, or sixty (60%) percent of the time, just to get child support?

The answer lies in whether it is joint shared custody/parenting with no residential designation.  What if the parent is designated to be a residential parent and gives fifty five (55%) percent of the parenting time to the other parent.  Under the law, the parent with the residential custody would receive the child support.

Courts want child(ren) to designate a residence  by age 5.  At age five (5) the Courts encourage the child(ren) to declare a specific residence, from which they can subsequently register with its corresponding school district.  As much as the “shuffle,” made popular by several forensics and many cases handled by this firm, is appropriate; it does shuffle children and may also have an unfavorable ancillary ping pong effect. For example, the child(ren) might be assigned to spend three days with one parent, then four days with the other parent one week, and then four days with the first parent and three days with the second parent on the second week.  Although this is often not an ideal schedule for a child, divorce is often not the ideal family lifestyle for a child.  In any event, many Courts are doing one week on and one week off as joint shared parenting.  A residential designation should be specified.

As if the above is not confusing enough, Courts are now posturing to hammer out settlements by giving one party residential, and the second party the vast majority of all parenting time.  It is up to the parties to work out a “break” on the child support.  If there is no break, then the residential parent receives all of it (full boat).

The Courts have even gone further to assist and avail parties of the option to work out their cases without Court intervention.

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