Our goal is to assist clients in resolving child support issues equitably. We can effectively negotiate your interests out of court or represent you during litigation. We can advocate for the rights of the custodial parent, to ensure that he or she receives adequate support, or for the non-custodial parent to ensure that he or she is not unfairly burdened with an excessive award under the law.
We also assist with modifications of support obligations if your child developed special needs following the initial determination of support, if the expenses of raising a child has increased in an unanticipated or unreasonable manner, if you have lost your employment or if your income has greatly reduced as a result of the economic downturn, changes in your industry or your own personal health resulting in an extreme hardship.
To contact one of our attorneys with any questions please call us at 716.636.7600. All inquiries and consultation are confidential.
- How does the Court determine how much child support a parent must pay?
- What if the non-custodial parent is unemployed or underemployed?
- What happens if the non-custodial parent works off-the-books?
- Can the parents agree to a different amount?
- Does the judge have any discretion when establishing a child support obligation?
- What other forms of support will the Court direct?
- How do I file for child support or spousal support?
- When will the child support obligation become effective? Can I get child support retroactive to the birth of the child?
- At what age does child support cease?
- What can I do to collect past-due child support or spousal support?
- If the non-custodial parent earns more (or less) now, will his/her child support obligation increase (or decrease)?
- I have a child support order against me, but now my child has moved in with me. Can I stop paying child support?
- What can I do if I disagree with the decision of the Support Magistrate?
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The New York law which governs the support of children is referred to as the Child Support Standards Act ("CSSA"). According to the CSSA, the basic child support obligation is determined as a percentage of the non-custodial parent's income less certain deductions, most commonly FICA (Social Security and Medicare taxes). The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children and at least 35% of five or more children. However, the formula is adjusted for parents with income below the self-support reserve or the poverty income guideline amount. There is also currently a "cap" on the combined parental earnings of both parties at $130,000.00 for determining the initial amount of support to be paid.
Unemployed and underemployed individuals will usually be directed to pay child support based on their earning capacity as a result of the court "imputing" income to that party based on what the court believes that individual should be earning. An individual who has honestly fallen on hard times must establish diligent efforts to find the former level of income. If unemployment is the result of a disabling injury, expert testimony may be needed to establish both the disability and its effect on the person's ability to earn. If there is an existing order, it will continue to govern at least until a modification petition has been filed.
Proving actual income can be difficult in situations where the custodial parent is not familiar with the finances of the non-custodial parent. However, if the custodial parent can prove the actual expenses of the non-custodial parent, the court may impute income based on what the non-custodial parent is spending each month to support his/her lifestyle.
The parties are free to enter into a stipulation (agreement) in which the child support agreed upon is more or less than the CSSA basic child support obligation. The agreement must contain certain language showing that the parties were aware of what the support would have been had they used the CSSA percentages, and the "deviation" from this CSSA amount must be adequately explained.
Contrary to what many believe, the courts are free to determine an amount of child support that is different from the CSSA basic child support obligation, if that amount is "unjust or inappropriate." To do so, the court must issue a written order explaining the deviation from the basic child support obligation by listing the factors it considered and the reasons that the court did not order the presumptively correct amount of child support. The law contains a list of enumerated factors, one or more of which can be the basis of the deviation. In practice, however, it is rare for a court to consider the CSSA basic child support obligation to be "unjust or inappropriate."
In addition to periodic payments of child support, the Court can direct the parents to pay a share of the cost to provide medical insurance for the child, the child's uncovered medical expenses, as well as child care and education costs.
If you do not have a matrimonial action pending in the Supreme Court, you can file for child support in Family Court. If you are in the midst of a divorce or separation action, child support should be determined in that action.
When will the child support obligation become effective? Can I get child support retroactive to the birth of the child?
Child support is retroactive to the date that you filed your request with the Court, not the birth of the child. However, if the custodial parent was receiving public benefits, the County Department of Social Services can sue the non-custodial parent for child support retroactive to the date that the child became eligible for services.
Under the CSSA, parents are responsible for supporting their children to the age of twenty-one years, unless sooner "emancipated." A child may become emancipated prior to turning twenty-one if he/she is employed full time and is self-supporting if the child joins the military, gets married, dies, or leaves the custodial parent's residence to live elsewhere on a permanent basis. A parent may also be relieved of his/her obligation to support a child if the child unjustifiably refuses parental control and guidance and refuses communication, called "constructive emancipation." These determinations are made on a case-by-case basis.
There are many methods by which past due support can be collected. The most commonly used method is the income execution, sometimes referred to as a garnishment. This is a mandate that directs an employer to withhold a certain sum of money from the payor's paycheck. The amount withheld is the full current support obligation, plus a certain amount to be paid towards satisfying any established support arrears. Another common method to collect support arrears, a money judgment, can be enforced by the seizure of bank accounts, and other assets. Getting a money judgment for support arrears requires a petition alleging a violation of support, commonly brought in the Family Court.
If the non-custodial parent earns more (or less) now, will his/her child support obligation increase (or decrease)?
Perhaps. There are two basic approaches to upward modification of child support. The first method is only available to a custodial parent who receives services of the NY Support Collection Unit (SCU). If the custodial parent receives child support through SCU, the non-custodial parent may be required to pay a cost of living adjustment (COLA), equal to approximately 10% of the existing obligation, added to it. Either parent may file objections to the COLA adjustment, which causes a Family Court hearing to be held to determine a new child support obligation employing the percentage of income method of the CSSA if the court believes this adjustment to be "appropriate." The other method by which child support is modified - upward or downward — is by petitioning the court based on a change of circumstances. If the obligation was the result of a stipulation or a separation agreement, the custodial parent will also have to show that the change of circumstances was unreasonable or unanticipated.
I have a child support order against me, but now my child has moved in with me. Can I stop paying child support?
Yes, but legally only once the court has terminated your obligation by a subsequent order. You should not stop paying court-ordered child support without also seeking court intervention.
You have thirty days to file objections to the order, which means that a Family Court judge will review the decision. If the judge denies your objections, you can appeal this denial to the Appellate Division of the Supreme Court.