It is no longer a given that custody disputes will end with the mother having primary physical custody of the child(ren) and the father having parenting time every other weekend. There is a growing trend that custody disputes are being resolved with equal or nearly equal custodial arrangements. A common example of an equal custodial arrangement is each parent having the children on an every other week basis.
This begs the question: is either party required to pay child support in these equal or nearly equal custodial arrangements? Well, that depends. If one parent has the child(ren) more than the other parent, even if it is 60/40, then the parent who has the child(ren) for the greater amount of time has the right to receive child support from the other parent.
However, to the dismay of many, if the custody schedule is exactly 50/50, then the parent with the greater income is required to pay child support. This rule is often referred to as the Baraby rule as it originated from a Court decision entitled Baraby v. Baraby. The rationale behind this rule is that it maximizes the resources of the children. While there may be some truth to that, I believe the negatives of Baraby outweigh the positives.
Under Baraby rule the parent with the greater income does not receive a reduction of any kind in his/her child support obligation. He/she pays child support as if he did not have the children at all. This rule, to me, is inherently unfair. I believe the law should recognize the substantial financial contributions each parent is making while the subject child is in his/her care. I believe that the parent in this scenario should receive a reduction in child support.
Perhaps, the biggest problem with the Baraby rule is that it deters settlement. This is illustrated by the following example:
Mother and Father have two children and have decided to separate on an amicable basis. Mother earns $60,000 annually and Father earns $50,000 annually. Mother and Father both have flexible schedules and are both very involved and caring parents. The children have met with their law guardian (the court appointed attorney for the children) and they told the law guardian that they wish to reside with each parent equally.
If the Baraby rule did not exist, this case would likely be resolved very quickly. I think most anyone would agree that this case should end with the children residing with each parent evenly or close to evenly. However, due to the Baraby rule, the Mother likely would not agree to such an arrangement because she would be required to pay child support to the Father. And, she has a point. The Mother’s child support obligation would amount to 25% of her income, or $15,000 annually. Why should the Mother pay $15,000 per year in child support to the Father where she earns only slightly more income than the father and where she has the children half of the time?
The Mother would likely fight to have the children more than 50% of the time. This could and often does cause a prolonged custody dispute. These unnecessary custody disputes in large part are caused by the Baraby rule. That is one of the reason I believe Baraby is bad law.