Why Parents with Joint Custody May Still Pay Child Support

In our family law practice, our clients are often surprised to find out that they’ll have to pay child support even if they share custody with their ex. While it might be true that you will pay less in child support when you have joint custody, joint custody does not eliminate the child support obligation. If you are the high-earning parent, you're responsible for supporting your children under your own roof and maintaining a certain standard of living when they reside with their other parent.

How Does Child Support Work With Joint Custody?

We have to tackle this question from the beginning. Before you were divorced, you and your spouse supported your children together. That support came in the form of monetary contributions and in-kind contributions of essential services, i.e., parenting. If you were the high-earning spouse in your marriage, it is assumed that you paid a greater portion of the support. You might also have made less of an in-kind contribution because of work obligations.

Now you are divorced, and you are sharing custody with your ex. You are making a greater in-kind contribution because you are acting as the primary caretaker of your children for roughly half the time. That should certainly count for something. But unfortunately, your greater efforts as a parent do not reduce the fixed costs of raising your children.

Take the family home, for example. Having your children live with you in your new residence half the time does not reduce the mortgage, homeowner’s insurance, heating bills, and other fixed costs. It doesn’t reduce the costs of private school tuition, sports, and enrichment activities. It doesn’t reduce the cost of clothing. In fact, paying to house your children part-time at another residence has added to the total cost of raising them. Of course, you are feeding your children when they are with you, so that’s a cost your ex doesn’t have to bear, and for that, you should get an appropriate reduction in your child support obligation.

How Child Support Works in New York

The bottom line is that New York lawmakers want to see children maintain the standard of living they would have enjoyed if their parents had stayed married. The state has adopted guidelines based on the income shares model to achieve that end. Briefly, here is how the calculation works:

  • Determine the total income of both parents — Combine the gross income of the two parents.
  • Subtract all permissible deductions from the total — Deductions can include alimony and/or child support from a previous marriage and state, local, and federal taxes. The result is total net income.
  • Determine the amount to allocate for total child support — Based on the number of children to be supported, a percentage will be applied to the total net income, as follows:
    • One child: 17 percent
    • Two children: 25 percent
    • Three children: 29 percent
    • Four children: 31 percent
    • Five or more children: 35 percent

    The result is the total child support obligation.

  • Determine the proportion of total support each parent will pay — We return to total net income. The court determines how much each parent has contributed and applies that percentage to the total child support obligation.

Consider a couple with two children. After deductions, the husband earns $70,000, and the wife, working part-time, earns $30,000 for a total of $100,000. Because they have two children, they would pay 25 percent of $100,000 or $25,000 in total child support. Since the husband makes 70 percent of the total income, he would pay 70 percent of $25,000 or $17,500, while the wife would pay 30 percent of $25,000 or $7,500. (This is basic child support, but the court can order additional expenses to be added.)

In this scenario, the husband’s obligation is $10,000 higher than the wife’s. If he has custody of the children for 20 percent of the time or more, he can deduct what he’s paying out of pocket when the children are living with him, but that’s not going to make a tremendous difference.

There are two ways to eliminate child support altogether for two parents with joint custody. The first is to show they earn the same amount of money. The second is for them to negotiate an agreement that eliminates child support. However, since child support is the child’s right, the court must be satisfied that the child will be adequately supported even without a support order.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 35 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, Crain's New York Business magazine, and New York magazine.

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