For starters, different rules apply to these situations and you need to be sure which of the two apply to you.
“Split” custody is the situation where there is more than one child and each spouse has custody of one or more of them. That is, the custody of the children is spread out, or split, between the two parents.
“Shared” custody is “where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year”. This is a new term for family law lawyers and it is not yet clear how this will be interpreted. For example, there is considerable uncertainty over how the courts will be figuring out what “40 per cent of the time over the course of a year” means. Does this include time when the children are in school or away at summer camp? Is there a difference if the camp is a day camp or an overnight camp? If the camp is paid for jointly, will the time there be counted equally?
For practical purposes where there is split custody the courts will figure out how much each parent would have had to pay for child support if the child was in the custody of the other and then subtract the smaller payment from the larger one to figure out the difference. The parent who would have had to make the larger payment will then pay the “difference” to the other as the proper amount of child support. Once this is calculated, the court will then look at the “add ons” to see who should be paying whom for those.
So the first step is to figure out the difference in child support each parent would pay if the child was in the custody of the other parent and then figure out who should pay how much to whom for the special or extraordinary expenses (“add ons”).
Where there is shared custody the situation is different and more complicated. The Guidelines provide as follows:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
- the amount set out in the applicable tables for each of the spouses;
- the increased costs of shared custody arrangements; and
- the conditions, means needs and other circumstances of each spouse and of any child of the marriage for whom support is sought.”
As a result, where there is shared custody the court must determine what each parent would have had to pay for child support if the child was in the care of the other, then determine what the “increased” costs would be because of the “shared custody arrangements” and then take into consideration the “condition, means, needs and other circumstances of each spouse and of any child for whom the support is being sought.” It is this last step which will create the greatest amount of uncertainty because it seems to put the courts back into the position before the Guidelines of looking into the “conditions, means needs and other circumstances of each spouse” as well as for the child. The specific wording makes it definitive that in the case of shared parenting. The court will analyze to a lot more than the gross income of the non-custodial parent and will analyze the income and circumstances of the other spouse.