Just wanted to provide a quick update as to where my case is with the Child Maintenance Service.
The new court order is not in place and the non-paying parent (mum) has our child 20 days more however, while in the court hearing the courts told me that shared-equal care doesn't necessarily go on the number of days you have your child. They said that it could be considered shared-equal care because in the court order, my child can choose to spend more time at mine when she chooses and also, the paying parent can still provide care to the child when its not their day i.e. picking them up and taking them to a doctors appointment etc.
With that, I am now challenging CMS and referring to the following regulation:
Child Support Maintenance Calculation Regulations 2012, Chapter 4, Special Cases which 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".
CMS have responded and said in a nutshell that I should still pay because the non-paying parent has our child 20 days more so its not shared-equal care but then I have a different understanding from the courts in that 'day to day care' does NOT refer to who physically has the child more.
I'm still speaking with CMS on this topic but I'm wondering if its worth taking legal action on this one (if my chances of success are high).
In a nutshell, the court order has the specified days between both parents and that if our child chooses to spend more time with me then she can do so and shouldn't be stopped. Their is also a few additional things.
It doesn't state numerically the number of nights but all in all it is 172 nights per year. I don't I can really base it on the number of nights per 28 days because it differs. For example, I've just had my child for 3 weeks and now the mother will have our child for 3 weeks but when our child goes back to school ill have my child about 12 days out of 28 days.
Because you have 12 nights out of 28 during school term time you would still have to pay maintenance .Its not classed as 50-50 by child maintenance. courts are right in saying it is shared care as you not far off half at all . to not pay child maintenance you would need to have a court order stating your child stayed at yours 14 nights out of 28