Many parents assume that equal nights means no maintenance. Sometimes it does. But the law asks a different question: who provides day to day care to a greater extent? Understanding that question is the key to any equal care case.
The rule in plain English
The rule is in regulation 50 of the Child Support Maintenance Calculation Regulations 2012. It applies where:
- one parent applies to the CMS, and
- the other parent also provides a home for the child, in a different household, and shares the day to day care of the child.
In that situation, the parent named in the application is treated as the paying parent only if they provide day to day care to a lesser extent than the applicant.
So if day to day care is genuinely equal, the named parent is not a paying parent under this rule and there is no maintenance liability between the parents for that child.
The Child Benefit presumption
Regulation 50 also says that if the applicant gets Child Benefit for the child, they are assumed to provide more day to day care, unless there is evidence to the contrary. In practice this means the parent without Child Benefit has to show that care is at least equal. A parent who has chosen not to be paid Child Benefit because of the High Income Child Benefit Charge is still treated as getting it.
Nights are not the whole story
Equal overnight care is strong evidence of shared care, but the Upper Tribunal has said that day to day care is more than the counting of days and nights. A decision maker or tribunal looks at the whole picture of who does the parenting.
DWP’s guidance to decision makers lists the kinds of factors that are relevant. They include:
- who arranges and pays for childcare
- who the child is registered with at the GP and dentist
- who the school contacts, and who attends parents’ evenings and appointments
- who buys clothes, school uniform and equipment
- who takes the child to activities, medical appointments and social events
- who looks after the child when they are ill
- where the child keeps their belongings
None of these is decisive. A parent can be at the school gate less often and still provide equal care. The point is to show the overall pattern.
Build a “day to day care” table
Make a simple two-column table, one column for each parent, with rows for school, health, childcare, activities, clothing, illness and holidays. Fill in who actually does each, and attach a piece of evidence for each row. It turns a vague argument into something a judge can check in two minutes.
Evidence that helps
- Your care diary or calendar showing nights and handovers
- School records: both parents as named contacts, emails from school to you, attendance at events
- GP and dentist registration, appointment letters addressed to you
- Receipts for uniform, clothing, trips, clubs and childcare
- Messages showing the children’s needs being handled by both parents
- Any court order or written agreement that says care is shared equally
- Letters from people who see the arrangements, such as a childminder or club leader
Raising equal care with the CMS
- Tell the CMS at the start that care is shared equally and that you do not accept you are the paying parent. Put it in writing.
- If the decision treats you as the paying parent, ask for a mandatory reconsideration and refer to regulation 50 in plain words: “Day to day care is shared equally, so I should not be treated as the non-resident parent.”
- Rebut the Child Benefit presumption with evidence of the overall pattern of care, not just nights.
- Appeal if necessary. The tribunal can decide that neither parent is a paying parent. If you only realise the point after appealing, you can ask the tribunal for permission to add it as a ground.
Common questions
We have exactly half the nights each. Is the case over?
Not necessarily. Equal nights moves the question to day to day care. If the other parent gets Child Benefit, you will need evidence that day to day care is at least equal.
Can I switch the Child Benefit claim to me?
Child Benefit can only be paid to one person for a child. If parents cannot agree, HMRC decides using its own rules. Changing who claims it can affect the CMS presumption, but it should not be done tactically: talk to an adviser first.
What if I provide more day to day care than the applicant?
Then you may be the parent with care, and the other parent could be the paying parent. You can raise this with the CMS.
Does a court order for equal care decide the CMS case?
It is important evidence. DWP guidance says decision makers should base the level of shared care on a court order. It does not automatically decide who provides more day to day care, but it carries significant weight.
Sources and law
- SI 2012/2677, regulation 50 (parent treated as non-resident in shared care cases)
- DWP decision makers’ guidance on day to day care
- Upper Tribunal (Administrative Appeals Chamber) decisions on day to day care
