One of the many topics discussed during divorce mediation is parenting time with the children. My clients often ask whether an equal, or 50/50 parenting schedule, eliminates the child support obligation. The short answer is NO; but because mediation gives clients the flexibility and power to create their own agreement, there are options to consider. This article will look at some of those options and help the reader understand the nuances of an equal parenting schedule and how this arrangement could offer the parents flexibility.
Under New York law, the parent who has more parenting time with the children is considered the residential custodial parent and has “residential custody” of the children. This is different from “legal custody” which refers to decision making. In mediation, legal custody is almost always joint meaning that each parent has equal decision making in regard to all decisions affecting a child’s growth, development, education, and well-being.
The question arises when parents want to create a truly equal parenting schedule where each parent spends the same amount of time with the children. Who then is the residential custodial parent? In New York, despite the equal parenting arrangements, the parent whose annual gross income is greater will be the child support payor and the recipient of child support (the lesser earning spouse) will be considered the residential custodial parent. If the parents are each making an annual gross income that is perhaps not exactly equal, but fairly close to being equal, the parents may feel that it may not be equitable to require the slightly higher earning spouse to pay child support. In those instances, my mediation clients explore the possibility of waving child support and instead, agree upon an expense sharing arrangement.
Arrangements for expense sharing can be crafted in many ways. If the parents’ annual gross incomes are nearly identical, then sharing expenses for the children equally (50/50) may be the right choice. In an expense sharing agreement, the parents typically cover the cost of living for their children when the children are living with them. In other words, the cost of food and housing is borne by each parent, respectively. Other expenses for the children, such as clothing, medical insurance premiums and unreimbursed medical expenses, extracurricular activities such as sports, music or dance, day care, summer cap, cell phones and computers, tutoring or private lessons, etc. are shared by the parents pursuant to the percentages that they negotiate, which is often 50/50.
For this type of arrangement to be successful, there does need to be a fairly healthy and cooperative co-parenting relationship. If one of the parents is notoriously late with making payments and/or is not living up to their end of the bargain, expense sharing may not be successful. Sometimes parents agree to keep a joint bank account open for the sharing of such expenses and to make a small investment in a parenting app, such as 2 Houses or Family Wizard, to help them coordinate and keep track of the expenses. Shared calendars are also a great way to keep track of not only parenting time, but also the expenses for the children.
What happens then if the parenting arrangements change in the future and one parent is spending more time with the children than the other parent? This could happen due to a change in a parents’ work schedule or for other reasons. It’s important that your divorce settlement agreement addresses this potential change and that it has language that will trigger a child support obligation for the parent spending less time with the children. In these situations, my clients will come back to mediation so that child support can be calculated and the child support amount is agreed upon. Of course, clients always have the option of going to court if mediation is not successful; but in these types of situations, where the parents have a healthy and cooperative co-parenting relationship, all is typically resolved during mediation.
As always if you have any questions about this article, mediation, or the mediation process, I welcome your questions and would love to hear from you.
Peacemaker Divorce Mediation 