Shared care is where many CMS disputes start. A few nights either way can change the amount by a third, and in some families it decides who pays at all. This guide explains how nights are counted and how to prove them.
What counts as a night
A night counts when the child stays overnight with the paying parent and that parent is looking after them. It does not matter whether the child is collected at 4pm or 8pm, only where they sleep and who is responsible for them that night.
- If a child is at boarding school or in hospital, the night counts for the parent who would otherwise have been looking after them.
- Nights with grandparents or other relatives count for the parent who arranged it, if that parent is still responsible for the child that night. Be ready to explain this.
The 12-month period
The CMS looks forward. It asks how many nights the child is expected to stay with the paying parent over the 12 months from the effective date. To decide this it looks at:
- Any court order about the children’s arrangements.
- Any agreement between the parents, written or spoken.
- If there is no order or agreement, the pattern over the previous 12 months, or another period that fits the case.
If the parents agree there are at least 52 nights but do not agree the exact number, the CMS assumes 52.
The bands
| Nights a year | Band | Reduction |
|---|---|---|
| 0 to 51 | No shared care | None |
| 52 to 103 | 1 | One-seventh |
| 104 to 155 | 2 | Two-sevenths |
| 156 to 174 | 3 | Three-sevenths |
| 175 or more | 4 | Half, plus £7 a week for each child |
Parents only need to report a change in care if it moves the number of nights into a different band.
When parents disagree
This is common: one parent says 104 nights, the other says 90. If both figures fall in the same band, the CMS does not need to decide. If they fall in different bands, the CMS will ask both parents for evidence and decide on the balance of probabilities: what is more likely than not.
DWP’s own guidance gives the strongest kinds of evidence as:
- a current court order setting out the arrangements
- a formal written agreement, such as one drawn up by solicitors or through mediation
- official documents such as a Cafcass or social services report
Where there is a court order, the guidance says decision makers should use it as the basis for the level of shared care, unless there is good evidence it is not being followed.
Other evidence that helps
If you do not have an order, you build a picture from several sources. None is decisive on its own, but together they can be persuasive:
- A contemporaneous diary or calendar of nights (written at the time, not reconstructed later)
- Messages between the parents arranging handovers, holidays and swaps
- School or nursery records showing who drops off and collects
- Letters from the school, GP, childminder or clubs confirming arrangements
- Travel or fuel records, booking confirmations for trips
- Photos with dates, if they show the child at your home on specific nights
- A written statement from someone who sees the arrangements first-hand
Make your evidence easy to check
Send a one-page summary: the pattern, the total nights for each 12-month period, and a list of the documents that prove it, with page numbers. Decision makers and tribunal judges are busy. The easier you make it to follow, the more weight it is likely to carry. The evidence index template helps.
Do not overstate it
If your diary says 130 nights but your messages show regular cancellations, your credibility suffers on everything else. Be precise, include the nights that did not happen, and explain any changes.
Equal care
If the children spend the same number of nights with each parent, the CMS has to decide who provides more day to day care. If neither parent does, there may be no paying parent. This is a separate and important rule with its own guide: equal care and day to day care.
When the paying parent is on benefits
If the paying parent gets one of the benefits that puts them on the flat rate and any child stays with them for 52 nights or more, the amount is reduced to nil. If they are on the flat rate only because of low income, shared care does not change the £7.
Challenging the number of nights
- Check the letter. It should say how many nights were used for each child and why.
- Ask for a mandatory reconsideration within one month. Explain the correct number and send your evidence. See mandatory reconsideration.
- Appeal if it is not changed. The tribunal decides the facts afresh. See appealing to the tribunal.
- Report later changes separately. If arrangements change after the decision, that is a change of circumstances, not a ground of appeal.
Common questions
The other parent keeps cancelling. Do cancelled nights still count?
The CMS looks at what is expected to happen. If an agreement or order says one thing but a different pattern is actually happening, either parent can provide evidence of what is happening in practice.
We agreed shared care verbally. Is that enough?
A spoken agreement counts, but it is easier to dispute. Confirm it in writing, for example in a message, as soon as you can.
Does the CMS count school holidays?
Yes. It looks at the whole year. Long holiday periods can make a big difference to the total, so include them.
Our arrangement changed partway through the year. Which figure is used?
The decision is based on what was expected at the time it was made. A change later on should be reported as a change of circumstances from the date it happened.
Sources and law
- Child Support Act 1991, Schedule 1, paragraphs 7 to 9 (shared care)
- SI 2012/2677, regulation 46 (counting nights) and regulation 47 (the 52-night assumption)
- GOV.UK: How child maintenance is worked out
