Child Support

Child support is an issue that can be addressed within a divorce proceeding filed in the Supreme Court or can be addressed as a separate and distinct issue in the Family Court, typically in the county where the children reside. Family Court is an option available to parents, caregivers and guardians who seek an initial order of support or enforcement or modification of an existing order of support, typically when divorce is not an issue. The Family Court cannot issue a judgment of divorce or decide issues regarding distribution of marital property.

Child support and the obligation of one or both parents to provide support for their children is taken very seriously by the Courts. Unless the parties agree on the issue of child support it will be governed by and decided under the Child Support Standards Act, (known as the CSSA) and the laws interpreting such statute. New York enacted the CSSA to provide consistency throughout the state as to the payment of child support, and it attempts to provide children with the same standard of living if their parents were together.

What types of child support are covered under the CSSA? There are three classifications of support; basic child support, mandatory add-ons and discretionary add-ons.

Basic Child Support Obligation

Basic child support consists of a sum of money that must be paid by the non-custodial parent based upon a percentage of the combined parental income, minus certain deductions until the children are 21 years old or sooner emancipated. The term non-custodial parent typically refers to the parent with whom the children do not primarily reside. The percentage that is awarded is increased based upon the number of children as follows:

The basic child support award is based upon the combined parental income up to $136,000.00 per year. The award applies to income from all sources, not just from employment. Each parent is entitled to deduct FICA (Medicare and Social Security tax), New York City and Yonkers taxes from their respective incomes prior to applying the percentages. Other deductions also exist for unreimbursed business expenses and other existing obligations to pay child and/or spousal support. If the parental income exceeds $136,000.00, the Court can choose to cap the amount, apply the percentages, or determine another basis to address such additional income.

Below is an illustration of how the percentages are applied under the CSSA with the mother being the custodial parent of one child:

• The father’s annual adjusted gross income (minus deductions) based upon his most recent earnings is $50,000.00 per year (Gross $53,000.00 – FICA $ 3,000.00) and the mother’s annual adjusted gross income based upon her most recent earnings is $60,000.00 (gross $64,000.00 – FICA & NYC Tax $4,000.00) per year.
• The combined adjusted parental income is $ 110,000.00, and the applicable child support percentage is seventeen (17) percent based upon one child.
• The father’s proportional share of the combined parental income is 45 percent and the mother’s proportional share is 55 percent.
• Based upon the foregoing calculation, the “basic child support obligation is $18,700.00 annually on the combined parental income up to $136,000.00.
• The child support obligation of the father is 45 percent of the basic child support obligation of $ 18,700.00, which is $ 8,415.00 per year or $ 701.25 per month, plus his pro rata share of 45 percent of child’s un-reimbursed medical expenses and child care expenses.
• The child support obligation of the mother is 55 percent of the basic child support obligation of $ 18,700.00, which is $ 10,285.00 per year or $ 857.00 per month, plus her pro rata share of 55 percent of the child’s un-reimbursed medical and child care expenses.
• The father’s child support obligation as the non-custodial is $ 8,415.00 per year or $ 701.25 per month payable to the mother as the custodial parent.

The CSSA calculates the support obligation of both parents, but only the non-custodial parent is obligated to pay the calculated percentage. There is no obligation outside of daycare and medical expenses, requiring the custodial parent to demonstrate that the child was actually provided with the amount of support attributed to such parent under the formula. Nor for that matter is the custodial parent required to account for the monies received from the non-custodial parent.

Mandatory Add-Ons

Under the CSSA there are two mandatory additional child support obligations that must be addressed. They are medical expenses, including the cost of insurance premiums and unreimbursed medical expenses and daycare expenses if applicable.

If health insurance is considered available to a parent, either through employment or otherwise, he or she will be required to enroll the child in such plan. Should the parent incur additional premium costs to enroll the child in his or her plan, the cost will be shared between the parents on a pro-rata basis as demonstrated in the above example. Additionally, should either parent incur unreimbursed medical costs, they too will be shared proportionally. Should a non-custodial parent be obligated to provide health insurance, then he or she would be allowed to deduct the non-custodial parents share of such cost from any basic child support obligation.

Daycare expenses are also a consideration under the CSSA. Daycare expenses will be ordered if it can be demonstrated that the custodial parent requires daycare to allow him or her to work or attending school. As demonstrated in the above example, such expenses will also be shared between the parents on a pro-rata basis.

Non Mandatory Add-Ons

The basic non-discretionary child support obligations have been outlined above. However, if it can be demonstrated that one or both parents have sufficient assets and/or income, a court can and will direct both parties to pay, typically on a pro-rata basis, the costs for schooling, camp and/or other activities, in addition to the basic support obligation. A court will base such determination not solely on the ability to pay, but rather on a determination whether the child has been accustomed to such standard of living and whether such activity or school will be in the best interest of the child.

If a non-custodial parent is paying child support and is also directed to pay for college expenses which include room and board, such parent is typically entitled to a credit from the basic child support obligation in the amount of the room and board actually paid.

Deviation from the CSSA

Once the parents are made aware of the statutory child support obligation under the CSSA they can agree on a different amount. The agreement unless placed on the record in open court must be in writing. The agreement must contain the following:

• A statement that both parents are aware of the provisions of the CSSA.
• A statement showing the amount of basic child support as calculated under the CCSA.
• If either, or both parents are unrepresented by counsel, the agreement must contain a statement that they have been given a copy of the CSSA chart detailing the formula amount;
• If the parents decide to pay more or less than the basic child support obligation as calculated under the CSSA , then the agreement must include a statement identifying the reason(s) why the agreed upon amount deviates from the statutory formula.

Just as the parties can agree to deviate from the statutory amount under the CSSA, Courts can also deviate from such formula based upon their discretionary powers so long as they identify in the decision or order the reason for the deviation. The Court will identify one or more of the following ten (10) factors should it decide to deviate from the presumptive amount of child support under the CSSA:

• The financial resources of the parents and the child.
• The physical and emotional health of the child and his/her special needs and aptitudes.
• The standard of living the child would have enjoyed if the marriage or household was not dissolved.
• The tax consequences to the parents.
• The non-monetary contributions the parents will make toward the care and well-being of the child.
• The educational needs of the parents.
• The fact that the gross income of one parent is substantially less than the gross income of the other parent.
• The needs of the other children of the non-custodial parent for whom the non-custodial parent is providing support, but only (a) if Line 23 is not deducted; (b) after considering the financial resources of any other person obligated to support the other children; and (c) if the resources available to support the other children are less than the resources available to support the children involved in this matter.
• If a child is not on public assistance, the amount of extra­ordinary costs of visitation (such as out-of-state travel) or extended visits (other than the usual two to four week summer visits), but only if the custodial parent’s expenses are substantially reduced by the visitation involved.
• Any other factor the court decides is relevant.

Modification of Child Support

Once child support is set by agreement or mandated pursuant to an Order of the Court, it is possible for either parent or both to seek modification of the amount of support and/or the type of support. If the parties do not agree on the modification they will have to file a petition in Court, (typically the Family Court) requesting a modification.

Modifications usually fall into two categories: 1) an upward modification, where a parent is seeking additional support and 2) a downward modification, where a parent is seeking to reduce the amount of support paid. Another instance of a modification is where a parent is now seeking college expenses because the original order or agreement did not address same. A change in custody may also be a basis for seeking a modification.

There are many crucial factors that must be considered prior to requesting a modification of child support. Different legal standards apply to child support obligations based upon an agreement as compared to an award of support made by the court. It’s not enough to just say “I need more support” or “I can no longer pay such amount”. The duration and amount of the existing child support agreement or court order must be taken into consideration along with the existence of a genuine increase or decrease in income and/or expenses.

If you are a non-custodial parent who can no longer afford to pay child support or seek to reduce the amount you are paying because of sickness, disability, loss of employment or otherwise, you must seek an immediate downward modification of your support obligation as you will be charged with amount of support previously ordered until a court approves your modification notwithstanding your inability to pay. Failure to timely request a downward modification has caused many individuals to accumulate substantial child support arrears which cannot be waived by the court.

Defenses to a Child Support Proceeding

A parent who is the subject of a child support proceeding, typically the non-custodial parent, also referred to as the respondent, can successfully defend against such action on many different grounds. One common defense is lack of jurisdiction of the court, and is often used when a proceeding is brought in the wrong court, or where the petitioner has failed to properly serve the summons. Typically these defenses only serve to delay an action until the petitioner files in the proper court or properly serves the summons on the respondent.

Another defense to a child support proceeding is paternity. Paternity establishment is the process of determining the legal father of a child. Every child has a biological father, but if the parents are not married, the child has no legal father, and the biological father has no rights or responsibilities to the child. In order for the biological father to be the legal father, the parents must establish paternity for the child.

Unmarried parents can establish paternity by signing a voluntary form called an Acknowledgment of Paternity and filing a petition to have the court determine paternity. However, If there is any doubt about the identity of the biological father, parents should not sign a voluntary Acknowledgment of Paternity form.

If paternity is contested in a support proceeding, the court will order the mother, child, and alleged father to submit to certain genetic tests. Based on the results of the test, the court will determine whether the alleged father is the legal father of the child.

If the alleged father is shown to be the biological father, the court will issue an order of filiation, declaring that the man is the father of the child. After the order of filiation is issued, either parent can seek an order for child support.

Interestingly, even if there is a legal determination that the father is not the biological parent , he can still be directed to pay support if there is a determination that the he has “held himself out” as the father of the child.

Another defense invoked in support cases is lack of visitation. If it is determined that the custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access to the child support payments can be suspended. Similarly, support payments can be forfeited when it is determined that the child is of employable age and the child actively abandons the noncustodial parent without cause by refusing contact. Typically the non-custodial parent must demonstrate that the child’s refusal of contact is totally unjustified.

Other defenses exist, including but not limited to, emancipation of the child due to employment, marriage or enlistment in the armed forces. Proof of payment is also a strong defense and one must be sure to scrutinize the terms of any existing child support agreement for a possible defense of invalidity.

As reflected above, child support proceedings are not always straight-forward. To be successful, a factual analysis under the numerous legal standards that govern such proceedings must be considered prior to entering into a child support agreement or filing or responding to a petition for support in court.

At the Law offices of David Smoren, PLLC from negotiating a fair and reliable child support agreement or litigating cases for support and modification, we have successfully handled all aspects of child support for our many clients. Whether it is related to a divorce proceeding, separation agreement or Family Court matter we have the experience to help you.

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.