In a divorce, one of the most contentious issues can be custody of the children. It is important that both parties fully comprehend the types of custody that exist and what each of them entails so that they can determine what will suit them and what will benefit their children most. Sometimes clients have questions about how the various types of custody affect child support, and it is vital for parties to understand this as well so they do not choose a custody plan based on false expectations. An example would be that no one will have to pay child support if there is joint custody.
In New York, there are several types of custody – true joint custody, joint custody with a residential parent, and sole custody. True joint custody, while possible, is unusual. In this case, the child would spend an equal amount of time in both homes. Logistically, this is only possible if both parents live near each other and have schedules that allow for each of them to care for the child in equal proportions. The two parents also need to be able to work together to ensure that although the child lives in two homes, all homework is completed, appointments are scheduled and kept, etc. This kind of coordination is difficult when parents live together, never mind in separate homes, possibly with new spouses. While it can work, I have found in my practice that even with the best of intentions, the amount of time spent at each parent’s home can eventually become disproportionate. Another method gaining popularity is “nesting.” “Nesting” is where the children remain in one home and each parent moves in for their parenting time. This require a lot of money, as each parent needs a home in addition to the home for the children.
Joint legal custody with one parent being the “residential” parent is the more usual, and frankly, the more practical scenario. This type of custody entails the child regularly living with one parent and the other parent having liberal visitation or “parenting time”. Both parents share equally in making decisions about the child’s health, education and welfare. Normally in an emergency, whichever parent the child is with at the time will make any decisions and then inform the other parent.
Sole custody is when only one parent has the authority to make decisions regarding the child’s health, education and welfare. This is usually put in place when the parents cannot get along well enough to make joint decisions about and for their child, or if one parent is incapacitated for whatever reason. In this scenario, one parent would be able to unilaterally choose a school, choose a caregiver, etc.
In terms of custody in relation to child support, New York State law makes it almost impossible to get out of paying. In the case of sole custody, the non-custodial parent would certainly have to pay child support. When there is joint custody with one parent being the residential parent, the non-residential parent pays child support to the other parent, and the custodial parent is expected to pay their share of expenses for the child as well.
Here is the kicker – even in a scenario of true joint custody, the law in New York courts has held that child support must be paid. There are two cases on this point, Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 [3d Dept. 1998], and Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]. Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent,” and Baraby made clear that the parent with the substantially higher income does have to pay child support.
So to sum up, if you feel that your children would benefit from joint custody, and that you and your ex can get along well enough to have that arrangement, I see no reason why you should not. An attorney can help you make an informed decision so that you can create the best possible outcome for you and your family.

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
901 Harvard Court, Suite A
Woodmere, New York 11598
Phone: 516.374.0074