        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

594
CAF 14-01955
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF LUCILLE A. SOLDATO,
COMMISSIONER, ONEIDA COUNTY DEPARTMENT OF
SOCIAL SERVICES, ON BEHALF OF JOHANN BENSON,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RAYMOND BENSON, RESPONDENT-RESPONDENT.


RICHARD P. FERRIS, UTICA, FOR PETITIONER-APPELLANT.


     Appeal from an order of the Family Court, Oneida County (Randal
B. Caldwell, J.), entered February 26, 2014 in a proceeding pursuant
to Family Court Act article 4. The order denied the objections of
petitioner to an order of a Support Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the objections are
granted, the petition is granted, and respondent is directed to pay
child support in the amount of $26 per week retroactive to September
12, 2013.

     Memorandum: Petitioner commenced this proceeding on behalf of
the mother of the children at issue seeking an order directing
respondent father to pay child support. The Support Magistrate
calculated respondent’s presumptive support obligation at $26 per
week, but determined that respondent was not obligated to pay support
because he had physical custody of the children for a majority of the
time under his custody arrangement with the mother and was thus not a
noncustodial parent within the meaning of Family Court Act § 413 (1)
(f) (10) (see generally Rubin v Della Salla, 107 AD3d 60, 67-68).
Family Court denied petitioner’s objections to the order of the
Support Magistrate, and petitioner appeals.

     We conclude that, contrary to the determination of the Support
Magistrate, the custody order between respondent and the mother is
intended to divide physical custody of the children equally (see
Redder v Redder, 17 AD3d 10, 13; cf. Rubin, 107 AD3d at 68-71).
Respondent, as the parent with the higher income and greater pro rata
share of the child support obligation, is therefore the noncustodial
parent for support purposes (see Leonard v Leonard, 109 AD3d 126, 128-
129; Matter of Moore v Shapiro, 30 AD3d 1054, 1055), and should have
been ordered to pay child support to the mother. In addition, we
agree with petitioner that the children’s receipt of public assistance
                                 -2-                           594
                                                         CAF 14-01955

precludes respondent from obtaining any reduction of his support
obligation based on expenses incurred while he has custody of the
children (see Family Ct Act § 413 [1] [f] [9]; Matter of Pandozy v
Gaudette, 192 AD2d 779, 780). Consequently, we reverse the order,
grant petitioner’s objections, grant the petition, and direct
respondent to pay child support in the amount of $26 per week
retroactive to September 12, 2013, the date on which the children
became eligible for public assistance (see § 449 [2]; Matter of Davis
v Swain, 281 AD2d 545, 545; Matter of Commissioner of Social Servs. of
City of N.Y. v Daryl S., 235 AD2d 126, 130).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
