In New York, the amount of child support a non-custodial party pays to the custodial parent is established through a formula. The formula is known as the “Child Support Standards Act” or “CSSA.”
The formula is based upon a percentage of the “combined adjusted gross income” of the parents. "Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return". There are required deductions from gross income for social security and New York City and Yonkers income taxes. The law contains provisions for additions to "income" and deductions from "income".
Provisions of the Child Support statutes require application of certain percentages to the first $80,000 of combined parental income, depending upon the amount of children involved. The applicable percentages are:
1 Child 17%
2 Children 25%
3 Children 28%
4 Children 31%
5 or More Children 35%
For amounts above $80,000, the court may use its discretion as to how much of that additional amount shall be paid as child support.
Parents are also responsible for their pro-rata share of non- reimbursed medical expenses and child-care expenses.
The parties may negotiate their own agreement for support in accordance with the child support guidelines, or they may “opt out” of the guidelines and agree to a higher or lower percentage of support under certain circumstances.
A custodial parent has the right to request that child support be deducted directly from the non-custodial parent’s income or paycheck.
Courts are not allowed to deviate from these guidelines except in situations when applying the guidelines would be unjust or inappropriate.
Either parent has the right to seek a modification of child support, but a change of circumstances must be alleged and must be proven to grant a modification.
If you would like to schedule an appointment for a free initial consultation concerning a child support matter, please contact us.
If you would like more information about the law and practice of child support, please continue reading.
How Can I Obtain Child Support?
Child support is obtained through a “child support order,” which is a legal document issued by a Court that states when, how often, and how much a parent is to pay for child support and other related expenses such as non-reimbursed medical expenses and child care expenses. A child support order is typically issued when two parents divorce or separate and one parent retains custody. One parent can also be ordered to pay child support even if he or she never married the other parent, once paternity has been established. In a situation where the custodial parent and the non-custodial parent live in different states, there is a federal law, which allows the custodial parent to file a petition for child support in the state where they reside, called the petitioning state. The petition is then sent to the state where the non-custodial parent lives, called the responding state. The responding state then issues a child support order binding upon both parents. Often, in this situation, the non-custodial parent makes payments to a child support agency, and not directly to the custodial parent.
A parent can seek child support through the Family Court where there is no pending divorce or separation case, or in the Supreme Court if there is a current divorce or separation action.
When Does the Obligation to Pay Child Support Terminate?
A parent’s obligation to support a child generally ends when the child reached 21 years of age. If the parents agree otherwise, that period can be extended.
A child support obligation may end before the child becomes 21 years old under certain circumstances, such as:
1. The child works full time and is self-supporting.
2. The child resides away from the person receiving child support.
3. The child enters active duty military service.
4. The child refuses to have a relationship with the parent paying support despite the parents reasonable and good faith efforts to have that relationship.
5. The custodial parent alienates the child from the other parent.
6. The custodial parent substantially and willfully interferes with the other parent’s visitation and access to the child.
If these circumstances change and are no longer applicable, the obligation to pay support may be imposed again.
How Can I Enforce a Child Support Order?
There are many ways to enforce a child support order. Once a support order is made, if it is not paid you may take action to enforce the order. The most common way to collect child support payments is through a wage garnishment order. This order directs the non-custodial parent’s employer to deduct the child support payment from earnings and make payment directly to the custodial parent. Another option is to have the non-custodial parent pay the support to a state agency called the Support Collection Unit or Child Support Enforcement Bureau, which then cashes the check and sends their own check to the custodial parent. This agency keeps records of payments received and made. If a non-custodial parent owes back child support, known as "arrears" and the child support order is payable through the agency, the agency has the authority to intercept any tax refund the non-custodial parent is entitled to receive and have those funds paid to the custodial parent for the purpose of paying off the arrears. Should the custodial parent claim that the non-custodial parent is in violation of the child support order, and the court finds that the violation was willful, and then the non-custodial parent can be held in contempt of court, with potential consequences being a money judgment in favor of the custodial parent or, in some cases, incarceration up to six months. Other remedies that the court or the agency can take against a parent who does not pay support includes the suspension of professional and driver’s licenses.
How Can I Modify My Child Support Order?
A request to change or modify a child support order can be made when there is a material change in circumstances from the time the existing order was issued. If there are substantial changes in a parent’s financial situation, such as a substantial increase or decrease in wages or loss of a job, a child support order can be modified. Unexpected expenses for the child such as large medical bills or a need for special education are also grounds for modifying child support. Some changes in child support can be temporary, for example, if one parent loses his or her job, the amount of child support he or she pays may decrease until a new job is found. Then child support payments may increase again based on the parent’s new salary. Both parents must submit tax returns, paycheck stubs, and any other evidence of employment as well as expense statements so that, if warranted, appropriate modification of child support may be determined. Where the parties previously entered an agreement of support, the parent seeking a change or modification may have to establish certain threshold showings to be entitled to a modification.