Do you have a New York City child support case? Perhaps you and your former spouse both had attorneys for your divorce case, but you are now in family court on a request to modify the nycchildsupport order. Do you need a child support attorney for that?
Did you have a child support agreement, but circumstances have changed and you can no longer afford the amount of your child support payments?
If you are a father or a grandparent with custody of a child or children, you may wonder if fathers and grandparents can get child support?
Do fathers still have to pay child support if they are being completely denied visitation?
I am a family law attorney with over 25 years experience. However I am not taking new cases at this time and do not expect to be taking new cases in the foreseeable future.
This article is intended to give general information only about NY child support law. Child support laws vary in different states. It is not intended to give legal advice on your particular case or matter.
CSSA Support Payment Guidelines & Calculations
For many years, New York State Courts have used child support guidelines in most situations in order to fix the amount for child support payments. In New York, child support payments are based upon income, not expenses.
Guideline orders under the Child Support Standard Act or “CSSA” for child support are based upon the calculation of Adjusted Gross Income (“AGI”), which is gross pay or income minus deductions for social security, Medicare, and city taxes, but not for Federal or State Income Tax.
The Judge or Support Magistrate will typically fix a child support amount based upon a percentage of adjusted gross income (17% of adjusted gross income for one child, 25% for two children, 29% for three children, etc.) There can also be additional amounts added to cover child care or daycare expenses, as well as health insurance and unreimbursed medical expenses.
There is, however, a “Cassano Cap” which means that where combined adjusted gross income is above $154,000.00 the Child Support Standard Act guidelines may or may not be applied to amounts of combined adjusted gross income which are over the “cap”.
There are numerous factors that the courts can take into consideration in a Cassano situation. Perhaps the most important ones would be the financial needs of the child or children and disparity of income between the parents.
Also, when a New York court is asked to fix an amount of child support, the fact that the non-custodial parent is supporting other children that live with him is usually not taken into account.
The non-custodial parent can get credit for payments he makes to another child not living in his household if there is a prior child support order or a written agreement requiring him to make payments against the prior order and child support payments are actually being made.
Despite the guidelines formula, New York child support law can be very complex and is fraught with pitfalls for a pro-se party or even for an attorney who is unfamiliar with the special law and procedures of child support cases.
Complex Child Support Cases In New York City
Simple child support cases involve a non-custodial parent who has steady, full-time employment, on the books, and does not work overtime or have a second job.
Cases where the non-custodial parent has his or her own business are more complex and both parties should have experienced child support attorneys or family law attorneys who are fully familiar with all aspects of child support law to assure that their rights are protected.
Other recurrent and often-times complex and problematic issues involve overtime pay, child care expenses, private school and college tuition, upward and downward modification cases (see discussion below), Cost of Living (“COLA’) cases, so-called “imputed income”, and child support enforcement.
Child support is an area where the law is both complex and changes frequently. Therefore, it is important for you to have an NYC child support lawyer who has years of experience handling these types of cases represent you to reduce the risk of unfair or even disastrous results.
NYC High Net Worth / High Income Support Cases
“High income” or “high net worth” child support cases are invariably much more complex, difficult, and expensive than cases where the combined adjusted gross income of the parents is below the Cassano cap. There are several reasons for this.
Under New York Law, the court has wide discretion about deciding whether or not the child support guidelines should be applied to income which is above the Cassano cap.
High net worth people tend to have much more complicated financial affairs, including pensions, charitable contributions, all kinds of investments, tax shelters, nannies, private schools, and the like. Their child support cases usually involve multiple boxes of documents. For these reasons, legal costs will always be higher.
New York Support Modification Cases And Support Agreements
The majority of child support cases that I have gotten over the years are modification requests where one or both parties seek to modify prior nyc child support orders. For many years, courts have applied different standards to child support modification cases depending on whether the prior order was reached by agreement or if it was entered after a contested trial.
In October of 2010, the Legislature passed a statute that significantly changed the legal standards for nyc child support modification cases. Depending on when prior child support orders were entered, courts will apply either the “old law” or the “new law” when deciding whether or not to increase or decrease child support orders.
The “new” statute changes the legal burden for a change in the order, but it also provides for the parties “opting out” of almost all of its new provisions, if the prior nyc child support order was by agreement between the parties, and there is a valid “opt out” clause in the order.
Private School And College Expense Obligations
According to New York case law, a non-custodial parent (usually the father) is not automatically responsible for paying for private school or college education. Instead, the court is supposed to first determine that there are “exceptional circumstances”, and even then the court has to find that the noncustodial parent can afford to pay for the private school or college.
Exceptional circumstances are most often found when one or both of the parents themselves went to private high school or went to college. Another important factor that the courts look at is the academic aptitudes or abilities of the child.
Courts in the wealthier boroughs of Manhattan, Brooklyn and Long Island are more likely to order payments for college than in upstate cities like Buffalo, Syracuse, Albany, or Rochester.
Interstate Child Support Cases And Obligations
Interstate cases are cases which involve parents who reside in different states. These cases sometimes raise the most difficult, complex, and novel legal issues of all child support issues.
For example, sometimes paternity and child support is resolved with an order in one state, and then one of the parents moves to another state, and one of the parents files a child support modification petition.
There may be complex issues about which state has jurisdiction, and child support may go to 21, or even 23 under the law of one state, while child support ends at 18 under the law of the other state.
Enforcement cases and the Support Collection Unit
What happens if the non-custodial parent stops paying child support?
If you are a non-custodial parent, can you terminate or suspend the order?
If child support payments are being made through the Child Support Collection Unit, the Unit has the power to enforce the order by wage garnishment, attachment of bank accounts, suspension of driver’s licenses, professional licenses, and passports, without any court order.
If the child support collection unit is unable to locate any employer or bank account, the custodial parent will have to bring a child support action to enforce the child support order.
The Family Court has the power to grant a money judgement, and can also put the non-paying parent on probation or even order jail time of up to six months, if it finds that the failure to pay was “willful” (court believes respondent is a “deadbeat”) which can be considered contempt of court.
In addition to alimony, the Family Court can also hold a respondent in contempt of court for failing to pay court-ordered alimony payments.
A Few Words About Vacating Arrears
In New York, it is extremely difficult to vacate arrears unless you were never served with the child support order and never appeared in court, or some other very special situation exists.