The Child Support Maintenance Calculation Regulations 2012 include rules for cases where parents share a child’s care.
If the CMS accepts that both parents provide equal day-to-day care, no child maintenance is payable for that child.
However, an equal number of overnight stays does not automatically mean that care is equal for child maintenance purposes.
What Does 50/50 Equal Shared Care Mean?
The key issue is whether one parent provides day-to-day care to a lesser extent than the other.
If both parents provide day-to-day care equally, there may be no main carer for child maintenance purposes.
In that situation, the paying parent does not have to pay child maintenance for that child.
However, deciding whether care is genuinely equal is not always straightforward.
Equal Shared Care vs the 175+ Nights Band
The CMS treats overnight shared care separately from equal day-to-day care.
If a child stays with the paying parent for 175 nights or more each year, this falls into the highest shared care band.
For Basic, Basic Plus and Reduced rate cases, this normally gives a 50% reduction plus an additional £7 weekly reduction for that child.
However, this does not automatically mean that the child maintenance liability becomes zero.
That is because the CMS also considers who provides most of the child’s day-to-day care.
What If the Parents Disagree?
If the parents disagree about the care arrangements, the CMS may ask both of them for further information and supporting evidence.
The CMS can consider a court order or an agreement setting out the shared care arrangements.
However, a formal court order is not always required.
Where there is no court order or written agreement, the CMS can also consider whether an established pattern of shared care exists.
If both parents agree that care is shared but cannot agree on the number of nights, the CMS may make an assumption about shared care in certain circumstances.
What Evidence Can Help?
Clear evidence can be important where there is a dispute about equal shared care.
Depending on the circumstances, this may include:
- An overnight care log.
- A Child Arrangements Order or other court order.
- Written agreements between the parents.
- School and nursery records.
- Medical and dental appointments.
- Evidence of school runs and regular transport.
- Details of clubs and extracurricular activities.
- Evidence showing responsibility for clothing and everyday essentials.
- Messages or emails showing how the parents divide care.
- Other evidence of regular day-to-day responsibilities.
The aim is to demonstrate how each parent actually cares for the child.
How Child Benefit Fits In
Child Benefit may form part of the evidence the CMS considers when deciding who is the main carer.
However, it is not the same as proving who provides the greater level of day-to-day care.
Where the care arrangements are disputed, evidence of the child’s actual routine and each parent’s responsibilities can therefore be important.
Regulations 46, 47 and 50
Several regulations may become relevant in shared care cases.
Regulation 46 concerns how the CMS determines the number of nights of shared care.
It allows the CMS to consider the terms of an agreement or court order. If neither exists, it can consider an established pattern of shared care.
Regulation 47 applies in certain cases where both parents agree that care is shared but there is insufficient evidence about the number of nights.
In those circumstances, the CMS may assume one night of shared care per week until sufficient evidence supports a different decision.
Regulation 50 is relevant where both parents provide a home for the child and share day-to-day care.
These rules are important when distinguishing between overnight shared care and genuinely equal day-to-day care.
How CMSAS Can Help
We help clients prepare evidence about their actual care arrangements.
This can include an overnight log and evidence of day-to-day responsibilities.
We can also help you present your position where you believe the CMS has treated genuinely equal care as ordinary overnight shared care.
Our consultants understand the shared care regulations and the CMS decision-making process.
If you need help with a 50/50 equal shared care dispute, contact CMSAS to discuss your case.