Equal Shared Care
Child Maintenance might not be payable where care of the child is shared equally between parents. But the rules are complex and there is a difference between Shared Care Band Equal and Equal Shared Care.
As with previous schemes, child maintenance payments are reduced where the child spends more than 52 nights per year with the paying parent. The more nights spent with the Paying Parent, the greater the reduction.
Where the number of overnight stays exceed 175 nights per year, the case is set as “Shared Care band equal”. Maintenance remains payable, but significant reductions are applied.
The 2012 scheme of child maintenance introduced legislation to recognise those cases where parents have “Equal Shared Care”, of the child. Where Equal Shared Care is proven, CMS have no jurisdiction to calculate child maintenance and the case can be closed.
Regulation 50 (2) Child Support Maintenance Calculation regulations 2012 states:
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant. [our emphasis]
Often, CMS will not investigate the circumstances sufficiently to identify if one parent gives care to the lesser extent. They rely heavily on the assumption that the Primary Carer of the child is the parent in receipt of child benefit, although that assumption can be challenged if there is evidence to prove equal care of the child is provided by each parent.
It is not appropriate to cease child maintenance payments simply because you may share the care of the child. It is important that you submit the relevant information to CMS and wait for the decision to be made and notified.
If the CMS decision is disputed by either party, that parent may raise a Mandatory Reconsideration request and lodge an appeal with HM Courts and Tribunals Service if necessary.
NACSA has a Regulation 50 specialist who will be happy to discuss your individual circumstances and guide you on the potential success of any dispute or appeal. Book now for a preliminary consultation
