Equal Parenting Time, Child Support, and Counsel Fees in New York Divorce
When parents agree to true fifty–fifty parenting time in a New York divorce, many assume that child support should disappear or at least be drastically reduced. The Third Department’s December 2025 decision in Aiken v Aiken, 2025 NY Slip Op 06944, is a sharp reminder that equal parenting time does not, by itself, eliminate or neutralize guideline child support or the risk of a counsel fee award.
For New York parents negotiating shared custody or equal parenting schedules, this case is a roadmap of what courts actually do with child support and attorney’s fees when there is a joint legal and equally shared physical custody arrangement.
Background: Equal Shared Custody, One Issue Left
In Aiken v Aiken, the parties married in 2008 and had three children, born in 2011, 2012, and 2014. The father commenced a divorce in 2022. By 2023 they had agreed to joint legal custody and equally shared physical custody of the children, and by 2024 they had resolved every issue except child support. That single remaining issue required a two–day trial.
After trial, Supreme Court (Montgomery County) awarded the mother child support under the Child Support Standards Act and granted her an award of counsel fees. The father appealed, arguing that applying the CSSA guidelines in a shared custody situation was unjust and that counsel fees should not have been awarded.
The Appellate Division, Third Department, affirmed in full.
How the Court Calculated Child Support in a Shared Custody Case in New York
The trial court first determined each parent’s income. The father’s adjusted gross income was found to be 130,618 dollars, and the mother’s 99,182 dollars. The court applied the Child Support Standards Act to their combined income up to the statutory cap and calculated the father’s pro rata share of basic child support for three children at 2,386 dollars per month. For income above the cap, the court considered the Domestic Relations Law 240 (1-b) (f) factors and found that every relevant factor favored the mother. As a result, the court applied the statutory percentage above the cap as well, producing an additional 645 dollars per month. The father’s total guideline obligation became 3,030 dollars per month, plus arrears of 54,754 dollars.
Critically, the father did not challenge the math. His argument was that applying the CSSA in an equal parenting–time case was unjust and that the court should have deviated downward because he was paying the children’s expenses half the time in his household.
The Third Department rejected that argument and leaned on well–settled principles. The Court reiterated that shared custody arrangements do not change the methodology of the CSSA. The presence of equal or nearly equal parenting time does not alter the basic rule that one parent is treated as the “noncustodial” parent for support purposes and is required to pay his or her pro rata share of the basic child support obligation unless a deviation is warranted based on the statutory factors.
The decision also underscores that the day–to–day expenses of maintaining a home for the children in your parenting time, such as housing, food, and clothing, generally do not count as “extraordinary expenses” that justify a deviation. The Third Department repeated its prior view that these are ordinary costs of custodial time, not a basis to reduce guideline support simply because time is shared.
The “Destitution” Argument and Financial Reality
The father attempted to argue that the guideline child support amount would leave him destitute. That sounds compelling in theory, but the record kills that argument if it is not backed by real evidence.
The Third Department pointed out that the father did not actually present financial proof at trial showing that he could not meet his own basic needs if he paid the ordered support. There was no detailed household budget, no proof of unavoidable obligations, no concrete demonstration of extreme hardship. Without evidence, the “destitute” argument was just rhetoric, and the court treated it accordingly.
The Court also rejected the suggestion that the income disparity between the parties was “nominal.” The father earned roughly 25 percent more than the mother. That gap was meaningful, not minimal. The law does not require a huge disparity before the less–monied spouse receives guideline support.
Finally, the father argued that the mother was living extravagantly and would therefore be able to provide things for the children that he could not. The Court found those claims speculative and without merit.
Taken together, the message is clear. If you want a deviation from CSSA guidelines in a shared parenting case, you cannot rely on vague assertions about hardship or lifestyle. You need hard evidence of actual financial strain and extraordinary circumstances. Equal parenting time and general complaints about the other parent’s spending are not enough.
What Aiken v Aiken Means for Equal Parenting Time and New York Child Support
For New York parents who share equal time, this case confirms several important realities.
Courts will still start with the CSSA formula, even when there is a true fifty–fifty physical custody arrangement. One parent will still be treated as the payor, usually the higher–income parent, and that parent will generally be ordered to pay his or her pro rata share of basic child support.
The fact that you cover food, clothing, and housing costs while the children are with you is not, by itself, an “extraordinary” expense that allows the court to deviate downward from the guidelines. Those obligations are inherent in exercising parenting time.
If you want to argue that the presumptive amount is “unjust or inappropriate,” you must be prepared to present detailed, credible financial evidence. You need to show the court exactly how the guideline obligation would leave you without sufficient resources to meet your own needs or why specific, documented factors under Domestic Relations Law 240 (1-b) (f) justify a deviation.
The Appellate Division is signaling that it will support trial judges who apply guidelines as written and decline to deviate when a party’s objections are speculative, unsupported, or simply based on disagreement with having to pay support in a shared custody scenario.
Counsel Fees and the “Less Monied Spouse” Presumption
Aiken v Aiken is also a textbook example of how counsel fees are being handled under Domestic Relations Law 237 in modern New York practice.
In a divorce action, there is a rebuttable presumption that counsel fees should be awarded to the less–monied spouse. That presumption is not just a slogan; it has bite when you look at how appellate courts review fee awards. The standard of review is abuse of discretion, which is highly deferential to the trial judge, particularly when the court has carefully considered the “totality of the circumstances.”
In Aiken, Supreme Court awarded the mother 21,505 dollars in counsel fees, significantly reduced from the roughly 34,448 dollars she requested. The Third Department affirmed. The decision highlights several points that matter for any litigant worried about fee shifting.
The trial court considered needless delay caused by the father, including his unexplained two–year delay in signing an agreement regarding equitable distribution of the marital residence. That delay forced the mother to refinance later, at a higher interest rate. The court also weighed the father’s unreasonable position that, despite being the higher–earning spouse, he should pay no child support at all. That stance directly caused the matter to go to trial on child support instead of resolving by agreement.
The court noted that the mother’s attorney was experienced, that her hourly rate was reasonable, and that the amount requested had been carefully reduced. On that record, there was no abuse of discretion.
The practical takeaway is straightforward. If you are the higher–earning spouse and you adopt aggressive, unrealistic positions, or if you cause avoidable delay and unnecessary litigation, you are handing the court ammunition to hit you with a counsel fee award in favor of the other side. The less–monied spouse presumption, combined with documented litigation behavior, becomes a powerful tool.
Strategic Lessons for New York Divorce and Custody Cases
For New York parents and spouses contemplating divorce, Aiken v Aiken is more than just another appellate case. It is a warning and a guide.
If you are considering a joint legal custody and equally shared physical custody structure, you need to go into settlement talks with realistic expectations about child support. Shared time may be emotionally fair, but it does not automatically wipe out guideline support. If you want a different outcome, you need a strategy grounded in the statute, the case law, and your actual finances.
If you are the monied spouse, you must also think carefully about how your litigation conduct will look when the other side requests counsel fees. Delay, refusal to sign agreed documents, and absolutist positions on support or property division can all become part of the court’s justification for awarding fees against you.
On the other side, if you are the less–monied spouse, cases like Aiken strengthen your position. They show that appellate courts will support trial judges who apply the presumption in your favor, particularly where your attorney’s work was necessary and your spouse’s conduct prolonged or complicated the case.
Talk to a New York Matrimonial Lawyer Who Understands These Cases
Cases like Aiken v Aiken are shaping how New York judges think about equal parenting time, child support, and counsel fees in real, day–to–day practice. If you are negotiating a shared custody plan, fighting about child support, or worried about paying (or receiving) counsel fees, you should be planning based on what the appellate courts are doing right now, not on outdated assumptions or informal advice.
The Law Offices of Mindin & Mindin, P.C. focuses exclusively on New York divorce and family law and stays on top of new appellate decisions across the state, including uncorrected slip opinions like Aiken. We translate those rulings into practical strategies that protect your financial future, your relationship with your children, and your leverage at the negotiating table.
If you want to understand how a case like Aiken v Aiken applies to your situation, contact Mindin & Mindin, P.C. to schedule a confidential consultation. Call 888.501.3292 or reach out through our online form so we can help you navigate child support, custody, and counsel fees with clarity and a plan.