Emanuel Keane, petitioner pro se. Andrew Kossover for respondent.
Marianne O. Mizel, J.
Emanuel Keane filed a petition against Elizabeth Boone regarding the order of support for the parties' children, Daniel Keane and Hannah Keane. The petition alleged that a change in circumstances had occurred in that custody of Daniel was now with his father where formerly both children had resided with their mother. Hannah still remained with her mother.
The Hearing Examiner issued a decision determining that Baraby v Baraby (250 A.D.2d 201 [3d Dept. 1998]) applied and calculated Daniel's support utilizing Ms. Boone's income, which is higher than Mr. Keane's, and did not calculate a support amount for Hannah.
Mr. Keane objects that the Baraby approach utilized by the Hearing Examiner is inappropriate to a split custody arrangement. Baraby was decided in a situation where each parent exercised equal custodial time with the children, i.e., shared custody. In the instant case, each parent has custody of one child, i.e., split custody. Baraby declared that the court should determine which parent has the greater adjusted gross income for child support purposes, denominate that person the noncustodial parent, and compute support accordingly. Baraby declared that this methodology fulfilled the primary purpose of the Child Support Standards Act (Family Ct Act § 413; Domestic Relations Law § 240 [CSSA]) in that it ensured that the children " w[ould] realize the maximum benefit of their parents' resources and continue, as near as possible, their preseparation standard of living in each household" (at 204). Baraby in essence determined which parent would be the financial clearinghouse for the expenses related to the children. Although some expenses were necessarily equally duplicated (such as the cost of maintaining suitable shelter) or equally divided (such as the cost of food) in each household, one parent needed to be designated to be responsible for the unique expenses. It enures to the benefit of the children to have the moneyed parent paying the nonmoneyed parent in a 50% situation the full amount which would have been ordered as child support under the requirements of Bast v Rossoff (91 N.Y.2d 723 ) if the children were primarily in the custody of the nonmoneyed parent 51% of the time, unless that produced a result which was unjust or inappropriate.
In this case, each parent is both a custodial parent and a noncustodial parent. Each provides the day-to-day parenting of one child and visits with the other child. Bast v Rossoff explicitly rejected the proportional offset method in shared custody situations. However, split custody is different from shared custody and it is appropriate to utilize a net offset when two parents' children are split between households. The Child Support Standards Act presupposes that each parent, the custodial and the noncustodial, will spend the same percentage of their income on child support. (Matter of Cassano v Cassano, 85 N.Y.2d 649, 653 .) In the situation of a single child, the
custodial parent will spend 17% of the custodial parent's income to support the child in that parent's custody and the noncustodial parent will also spend 17% of the noncustodial parent's income for the support of that child by payment to the custodial parent as the financial clearinghouse. Where a parent already is under court order to support a noncustodial child, support for a second noncustodial child in a different household before the court is computed by deducting the amount paid pursuant to court order for the first child before computing the amount which the noncustodial parent must pay for the second child (Family Ct Act § 413  [b]  [vii] [D]).
Here, Mr. Keane asked that the Court compute the support for both his custodial child, Daniel, and for his noncustodial child, Hannah. The Hearing Examiner issued an order which directs that the amount paid by Ms. Boone is paid for the support of Daniel and ignores the issue of Hannah's support. In reality, the issue of support for each child has reached the Court in a tie race. Strict application of Baraby in such a situation and allocating support as if there were only one child of the parties entitled to support ignores the reality that there are two children for which each parent is equally responsible.
The Child Support Standards Act recognizes the existence of other children in two situations. First, the CSSA allows deduction from income for support actually paid pursuant to court order or written agreement " on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action" (Family Ct Act § 413  [b]  [vii] [D]). This clause presupposes that the child whose support is being paid under section 413 (1) (b) (5) (vii) (D) is a noncustodial child of only one of the parents whose support obligation is presently being determined. Mr. Keane has a legal obligation to support Daniel and Hannah and Ms. Boone has a legal obligation to support Hannah and Daniel, but Daniel and Hannah are not children " who [are] not subject to the instant action" : they are the children subject to the instant action. Facially, this provision would seem inapplicable to the present case.
The second situation in which the court can consider the support of another child is in Family Court Act § 413 (1) (f) (8), under which the court may consider whether to deviate from the amount produced by strict application of the ...