Divorce Mediation and the Parent’s Support Obligation During COVID

During these pandemic times where some noncustodial parents are able to spend more time with their children a question I am increasingly asked is: If I am spending perhaps 40% of time with the children, should I not be entitled to a reduction in child support?

The short answer is no. While there is an apparent logic to the suggestion, in the leading case of Bast v. Rossoff, 91 N.Y.2D 723 (1998), New York’s highest court evaluated and rejected the argument that there should be a proportional offset formula under which a parent’s pro rata share of the basic child support obligation. The idea was that the share would be multiplied by the percentage of time the child spends with the other parent. The two parents’ resulting amounts would then be offset against each other, and the net paid to the parent with the lower amount. In 1998 and thereafter the courts have stated that, in the absence of some other compelling factor, no deviation from the presumptively correct amount will be entertained.

I suspect that the pandemic, which has brought so many other changes to our society, will result in new challenges to this holding.