In New York, under the Child Support Standards Act (CSSA), the non-custodial parent usually pays for the support, maintenance and education of the children. Certain payments for the benefit the child, such as gifts, clothes, transportation, vacation expenses or rent, may not be considered "child support." Further, the custodial parent in New York is not required to provide an accounting with regard to the child support payment.
For the purposes of the CSSA, child support is calculated on "adjusted gross income". "Adjusted" gross income is defined as gross income less certain deductions that are permitted. These permitted deductions are as follows: (a) certain unreimbursed employee business expenses; (b) maintenance paid to a spouse not a party to the current action for child support, but only if there is a court order or a properly written agreement; (c) maintenance paid to a spouse who is a party to the current action, but only if there is an existing order or a properly written agreement; (d) child support paid pursuant to a court order or a properly written agreement to a child who is not part of the pending action; (e) public assistance; (f) Supplemental Security Income; (g) New York City or Yonkers income taxes actually paid; and (h) Federal Insurance Contributions Act (FICA) taxes.
In order to determine the amount of child support to be paid the "adjusted" gross income amount is multiplied by the guideline percentage for the number of children. The "child support percentage" is fixed as follows: a) 17% of the combined parental income for one child; b) 25% of the combined parental income for two children; c) 29% of the combined parental income for three children; d) 31% of the combined parental income for four children; and e) no less than 35% of the combined parental income for five or more children. The law provides a combined limit of $141,000 in income for calculating child support, although this limit, depending on the circumstances, may be disregarded by the court. The non-custodial parent must pay his or her pro-rata share of the child support.
In addition to the child support as calculated above, the non-custodial parent also pays his or her pro-rata share of child care, medical and educational expenses. For example, if the non-custodial parent's share of the combined income is 70%, then the non-custodial parent will be responsible for paying 70% of these expenses.
The CSSA states that the court has the option of not following the guidelines if it determines that doing so would be unfair under the circumstances. The court seldom uses its discretion to deviate from the guidelines.
The parents of the child can "opt out" of the CSSA by agreeing to a higher or lower amount of child support. To "opt out," the parents must sign a written agreement that states that they have been advised of the provisions of the CSSA, the amount of child support that it would require, and the reasons why they have agreed to an amount other than that called for under the CSSA. Please note that the judge must approve any deviation from the CSSA.
Due to a change in circumstances, either party may request in Family Court a modification upward or downward to an order for child support. Usually, a change of circumstances is defined as a change in income of at least 15%. A change in child support can also be sought if it has been at least three years since the child support order was made or agreed to in a written agreement.
If the non-custodial parent applies for a downward modification due to a decline in income, the court will be very conservative in changing the order. Any voluntary reduction in income by the non-custodial parent will be frowned upon, resulting in the denial of the request to reduce the child support. Even a reduction in income due to a refusal to work overtime will most likely result in the denial of an application for a downward modification of an order for child support.
Child support stops when a child reaches the age of 21 or earlier if the child becomes emancipated. In New York, a child becomes emancipated when he or she marries, joins the armed services, lives on his or her own and is working fulltime. The non-custodial parent must apply for the termination of child support upon the emancipation of the child.
A custodial parent can enforce child support payments in New York or anywhere else in the United States. If the non-custodial parent refuses to pay child support, a court order or judgment for support may be enforceable by means of a wage deduction. Refusal to pay child support may also result in a lien being placed on the non-custodial parent's property. A party who refuses to pay child support may even be held in contempt and lose his or her driver's license or be imprisoned. Child support payments are not discharged in bankruptcy.
Once an order has been made for child support, it is very difficult, if not impossible, to change. Although there is a thirty-day right to appeal a decision, the appeal is limited to the facts of the case. Accordingly, if a party said something that was not in his or her best interest or did not say something that the party should have said, such an error cannot be corrected on appeal. In New York, under the Child Support Standards Act (CSSA), the non-custodial parent usually pays for the support, maintenance and education of the children. Certain payments for the benefit the child, such as gifts, clothes, transportation, vacation expenses or rent, may not be considered "child support." Further, the custodial parent in New York is not required to provide an accounting with regard to the child support payment.
If you need an attorney in regard to a child support matter call us at (718) 625-0800 to schedule a consultation. For Family Court matters we charge $100 for a consultation. The $100 may be applied to our fee in the event you retain our office to represent you.