Child support is money the non-custodial parent pays to the custodial parent to allow the child to maintain the standard of living he would have had if his parents had not divorced. The law states that child support is paid for the “care, maintenance and education of any un-emancipated child under the age of twenty-one years”. Child support can include money for health care not covered by insurance and money for a child’s educational expenses.Summary of Child Support Law in New York
Child support is the duty of both parents. Support is defined broadly and includes things such as shelter, food, and clothing.
Child support law is a detailed body of law which mandates that parents who have divorced or never married must provide for their children. Child support generally takes the form of money and is paid by the non-custodial parent to the custodial parent. The custodial parent’s support obligation is usually met through providing food, clothing, and other things for the child.
The custodial parent or the child may apply for child support. The child support law requires that the parents contribute a set percentage of their combined income to the child’s expenses. When a petition is filed, the parents will be required to provide financial information to the court. The court will then determine the income of the parents. Once the income is determined, the court will multiply that income by a set percentage which is determined by the number of children. This amount will then be divided between the two parents according to their individual incomes. “Child support” is the amount of money the non-custodial parent will be required to pay according to the calculation.
The law provides for many ways to enforce child support orders, including garnishment of wages, suspension of business and professional licenses, and incarceration.
Applying for Child Support in New York
If the paternity of the child has not been legally established, such as when a child is born to unmarried couples, the custodial parent must seek an Order of Filiation. Child support payments may only be collected from the child’s legal father. The order will designate the legal father of the child. After the legal father of the child is determined, the party seeking support should file a petition for child support in family court. A sample petition may be found here:
http://www.nycourts.gov/forms/familycourt/pdfs/4-3.pdf
The parent filing for support may be required to file a financial statement indicating what the parent has spent money on.
Once the child support petition has been filed, the custodial parent must serve process on the non-custodial parent. The service is usually made by a third party service provider. Service must be made at least eight (8) days before the hearing. Service can be made:
· by leaving the notice with a person of “suitable age and discretion” at the non-custodial parent’s home or business;
· By giving the notice to the non-custodial parent directly;
· through certified mail; OR
· If reasonable efforts have proven unsuccessful, the court may provide for a substitute form of service.
After the necessary paperwork is filed and the non-custodial parent is served with notice of the petition, the court will hold a hearing where the court will hear evidence from both parents and then determine the amount of child support due.
After the child support order is signed by the court, the custodial parent may choose how to receive the support payments. The custodial parent may be paid directly by the other parent or the custodial parent can request the assistance of the Support Collection Unit (SCU). The SCU will collect the support from the non-custodial parent and distribute it to the custodial parent.
Liability for Child Support in New York
According to Family Court Act § 413, one or both parents may be liable for child support. The law imposes a duty on both parents to support their children. Family Court Act § 513 extends the duty to support children to include children born out of wedlock. A step-parent can be ordered to pay child support only if the support would prevent the child from needing public assistance. A step-parent’s duty to support a child is extinguished if the step-parent divorces the child’s biological parent.
Eligibility to Receive Child Support in New York
In New York, child support is the legal obligation of both parents. In most cases the custodial parent will receive the child support and then spend the funds to maintain the standard of living of the child.
Calculation of Child Support in New York
In order to determine the amount of child support due, the court must first determine the income of each of the parents. In this context, income has a special definition which is found in Family Court Act § 413(1)(b)(5) and Domestic Relations Law § 240(1-b)(5). Once the income for each parent is calculated, the court combines the two to calculate the “combined parental income”. The combined parental income is then multiplied by the “child support percentage” which is found in the statute and depends on the number of children the parent will support. Finally, the amount of money calculated by the previous step is multiplied by the proportion of “combined parental income” which was earned by the parent.
For example, if both parents have incomes of $90,000, the combined parental income is $180,000. If there are three children, the child support percentage is 29%. With this information, the amount of child support the non-custodial parent must pay is $2,175 per month. This amount is reached by taking the combined parental income multiplied by the child support percentage, which results in a value of $52,200. Since both parents contributed equally to the combined parental income, the amount is reduced by 50% to $26,100. This amount is then divided by 12 to reach the monthly child support obligation for a single, non-custodial parent.
The statutory amount will be the amount of support the non-custodial parent will be required to pay unless one of the following two conditions are met:
· The court examines the factors set forth in Family Court Act § 413(f) and finds that the statutorily required amount of support is “unjust or inappropriate”; OR
· Payment of the required amount of support will place the parent below the poverty line.
The court may also reduce the amount of child support due if it finds that the payment of child support reduces the parent’s income to an amount below the “self support reserve”. The reserve is defined in statute as 135% of the federal poverty income guidelines. If the payment of child support would leave the parent with an income below the self support reserve, the court may decrease the amount of child support due to the greater of:
· The difference between the non-custodial parent’s income and the self support reserve; OR
· $50 a month;
If the court imposes the statutory amount of child support, it will then be increased by an amount for the child’s education expenses and unreimbursed healthcare expenses. The court may also impose a requirement that the non-custodial parent obtain health insurance coverage for the child. The court may:
· Require the parent to extend his current health coverage to cover the child; OR
· Require the parent to purchase insurance for the child
The court will include health insurance as part of a child support order when the insurance is available at a reasonable cost. Reasonable cost is defined as having a cost which is no more than 5% of the combined parental income. Cost is defined as the amount of premiums and deductibles.
The court will examine the circumstances of the particular case and the best interests of the child when deciding whether to impose education expenses on the non-custodial parent. In particular, the court will consider:
· The educational background of the parents;
· The academic ability of the child; AND
· The parent’s ability to pay for the expenses.
Courts have held that child support may be modified if the child attends and lives at a school. The court may also divide the costs of education unequally.
Child Support Coverage in New York
Child support covers many of the costs incurred by the custodial parent when raising a child. Child support has been found to cover food, shelter, educational expenses, health care expenses and expenses caused by the child’s disability. The statute holds that child support is used to pay for the “care, maintenance, and education” of a child.
Deviation by Court from Child Support Guidelines in New York
The formula for enforcing child support is strictly enforced. Courts are required to apply it for all income up to an amount specified in Social Services Law § 111-i. This amount is to be set at $130,000 at the end of January, 2012. The amount is then adjusted every two years based on the Consumer Price Index. In this document, the statutory limit will be presumed to be $130,000.
The income which is subject to the statutory limit is the “combined parental income”. If the combined parental income is greater than $130,000, the court may treat the excess differently, but it is not required to. If the court decides to treat the excess differently, it must consider the factors listed in § 413(f) of the Family Court Act. The final factor listed in §413(f) gives the court the ability to consider “any factor the court deems relevant”.
The statute grants the court discretion over whether to require child support payments in the amount determined by the formula. The court must impose the amount of child support determined by the statutory formula unless it finds that the results of the formula are “unjust or inappropriate”. In order to determine if the statutorily imposed support amount is unjust or inappropriate, the court is required to consider the factors listed in Family Court Act § 413(f).
The court may also exercise discretion over what is considered income for purposes of determining the amount of child support due.
Income for Purposes of Child Support
Domestic Relations Law § 240 and Family Court Act § 413 divide income into several different categories. They are:
· The parent’s gross income from their most recent tax return. If the parent’s most recent return was filed jointly with a spouse, the parent will be required to prepare an individual one under penalty of perjury;
· Investment income that would otherwise not be reported on tax returns, after subtracting the costs associated with the investments;
· Income received from sources such as Workers Compensation, Veteran’s benefits, Social Security Benefits, and Annuity Benefits;
· Any income imputed to the parent (such as free room or board);
· Any resources the parent gains from assets which don’t produce income;
· The amount of any deductions gained by the parent because they are self employed.
In order for a court to impute income to a parent, the court must expressly state the reasons why it is imputing income and the court’s calculations must be supported by the record.
If the court finds that the parent has engaged in transactions with the goal of lowering his income to avoid child support, the court could treat those transactions as having not occurred.
The parent’s income is then reduced by the following:
· Any child support or alimony paid to individuals not a part of the current proceeding (such as child support for children from another relationship);
· Unreimbursed business expenses;
· Alimony paid to the ex-spouse if the alimony order includes a provision to adjust child support after the alimony order expires;
· Any FICA taxes paid;
· Any public assistance or SSI received; AND
· New York City or Yonkers taxes paid
Enforcement of Child Support in New York
In cases where the child support obligation is due to a stipulation between the parties, the custodial parent should bring an action in court to enforce the contract.
A child support order can be enforced by filing a violation petition in family court. The custodial parent seeks to hold the non-custodial parent in contempt for failing to follow the court order. If the non-custodial parent is found to be in contempt of court, the non-custodial parent may face penalties including incarceration for up to six months. Other penalties can include sequestration and, if the violation is willful, payment of the custodial parent’s attorney fees.
The court will schedule a hearing once a violation petition is filed. At the hearing, both parents will be able to provide evidence to the court. The custodial parent must first present evidence that the non-custodial parent has committed a violation of the support order.
The custodial parent makes a prima facie showing of willful violation of the order if he can show:
· A valid support order is in force; AND
· The non-custodial parent failed to comply with the order.
In order to rebut this finding, the non-custodial parent must provide competent, credible evidence of his inability to pay. If sufficient evidence is presented, the court will find that the violation was not willful.
The custodial parent can request that the wages of the non-custodial parent be garnished to pay the child support obligation. The garnishment can be used to pay both current obligations and arrears. The garnishment cannot exceed 60% of the non-custodial parent’s disposable income. This limit is lowered to 50% if the non-custodial parent is supporting a second spouse or other children who are not being supported by the garnishment. The court may garnish the parent’s wages or order a third party to turn over income that had been earned by the parent.
Failure to pay child support may also result in penalties from the state’s administrative agencies. The DMV can suspend a driver’s license for failure to pay child support and the court can suspend other licenses given to the parent, including professional or business licenses.
Modification of Child Support Order in New York
A court has jurisdiction to modify a visitation order until the child reaches 21 or is emancipated. In order to petition for a modification of child support contained in a court order, the party seeking the change must show a “substantial change in circumstances”.
A substantial change in circumstances may include:
· Increased needs of the children;
· An increase cost of living if it increases the costs of raising the children;
· A loss of income or assets by the parent; AND
· A substantial increase in the financial condition of the parent
Merely alleging that the non-custodial parent has increased his income is generally insufficient to show a substantial change in circumstances. A parent alleging a substantial change in circumstances is required to provide more than general statements about the change in conditions. Specific facts must be provided.
If the child support is provided by a stipulation between the parties instead of by a court order, modification is permitted if there has been an “unanticipated and unreasonable” change in circumstances. The parents may include a provision in the stipulation which states that they will not be bound by this standard. If the parents opt out of this standard, the court will determine if the requested modification meets the “substantial change in circumstances” test applicable to court ordered child support.
Unless the parents have entered into an agreement which specifically states that the following options will not be enforced, the court may modify a child support order:
· If at least three (3) years have passed since the last time the order has been entered, modified, or adjusted; OR
· One parent has had a change of income of 15% or more since the last time an order was entered, adjusted or modified. If the change in income has been a decrease, a modification will not be granted unless the reduction of income was involuntary AND the parent has made diligent efforts to secure employment commensurate with his education, ability, and experience.
Child Support by Agreement in New York
If the parents enter into a separate agreement which provides for support of children from their relationship, that agreement can be enforceable. Domestic Relations Law § 240(1-b)(h) permits a private agreement when:
· The Agreement states that both parties are aware of the Child Support Standards Act;
· The Agreement determines how much child support would be required under the formula contained in the Child Support Standards Act (found in Domestic Relations § 240(1-b));
· States that the amount determined under the statute is presumed to be the correct amount; AND
· If the private agreement awards a different amount than would be required by the statute, the agreement must provide reasons why there is a deviation from the statutory amount of support.
If the agreement does not contain the statements above, the agreement will not be enforced by the court. If the agreement is found not to be unenforceable, the court will impose child support in the amount required by statute.
These requirements apply in cases where the agreement would only deviate from the statutorily required support amount in limited circumstances. In one case, the parents agreed to stipulate child support and included the stipulation in their separation agreement. The agreement provided for a set amount of support and a cost of living adjustment. None of the required clauses were in the agreement.
The court upheld most of the agreement. The court found that the amount of support required by the agreement was similar to the amount the statute would require. This meant that the parents were not attempting to “opt out” of the statutory framework.
The court disallowed the cost of living adjustment, finding that the adjustment would require a larger amount of support than the statute would impose. The court held the adjustment invalid because the agreement did not include reasons why the parties had agreed to depart from the statutory framework.
Determination of Parental Income
A parent’s income is usually determined from tax documents and other official disclosures. The court will require the filing of a financial affidavit detailing the income and assets of the parent. A sample affidavit can be found here:
http://www.nycourts.gov/forms/familycourt/pdfs/4-17.pdf
The parent is required to attach several forms to the affidavit, including:
· W-2s
· Tax returns
· Insurance Policies AND
· Check Stubs
The disclosure affidavit must be signed by a notary public.
During the child support hearing, the other parent may bring in witnesses to challenge the information disclosed by the other parent.
Effect of Joint Custody on Child Support
In this jurisdiction the statutory formula for child support is used in all cases. The statute contains the terms “custodial parent” and “non-custodial parent” but the use of these terms does not prevent the statute from being used in cases of joint custody. In many cases the custodial parent is the parent who has primary physical custody of the child.
In the rare case where the parents have agreed to equally share physical custody, the non-custodial parent is defined as the parent who would have the larger child support obligation according to the statute’s formula.
Child Support Attorney in New York
A child support attorney can help in many ways. The attorney can draft a stipulated agreement which the courts will enforce. If an agreement is not feasible, the attorney can help the parent prepare for the child support hearing. This can ensure that the parent provides all the relevant information to the court and allow the child support order to be sufficient to provide for the child’s needs while not being unduly burdensome on the parents. A child support attorney can be helpful in seeking modifications to child support orders as well.
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