Child support lawyer with over 20 years experience
Are you looking for a New York child support lawyer? Do you even need one? Perhaps you and your former spouse both had attorneys for your divorce, but you are now in family court on a request to modify the child support order. Do you need a lawyer 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 payment?
If you are looking to get representation on your case, can you just hire a general practice attorney, or an attorney who does family law, but is not an expert in child support issues? Is your case really screwed up and you desperately need help?
This website is designed to provide some basic information and to answer some very basic generic questions, but is not intended to give you legal advice on your particular case or situation. However, you can contact me by phone, and not just during weekday 9 to 5 hours. I have appeared in all the NYC family courts on child support matters at one time or another.
New York child support guidelines
For many years New York State Courts have used child support guidelines (i.e. 17% of Adjusted Gross Income for 1 child) in most situations in order to fix an amount for child support payments. Guideline orders under the Child Support Standards Act or “CSSA” for child support are based upon calculation of Adjusted Gross Income (“AGI”), a legal term which starts with gross pay or income and includes deductions for social security, Medicare taxes, and New York City income taxes, but not for Federal or State Income Tax.
The same guidelines are used in both a divorce and in a family court child support cases involving unmarried parents.
Guidelines are not used where the income of the parent who does not have child custody is very low (below the Federal poverty level or the so-called “self-support reserve”). There is also something called a “Cassano Cap” which means that where the combined adjusted gross income is above around $148,000.00 the 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 would be the needs of the child or children. Without an agreement this issue can only be resolved through a trial.
New York Courts may also occasionally deviate from the child support guideline amounts in certain other situations either on consent of both parties or after something called a “deviation hearing”. An example of a situation where the court might consider deviating from the guidelines is where the parent without custody has very high recurring medical bills or needs very expensive but life-saving medication which is not covered by medical insurance.
Most litigants are unaware of the fact that under New York Law the amount of child support, at least in non-Cassano cases, is almost always determined solely upon income , and ordinary living expenses of the non-custodial parent are usually not considered. 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.
However, the non-custodial parent can sometimes get credit for payments he makes for another child not living in his household if there is either already a court order or a written agreement requiring him to make payments against the prior order and payments on the prior order are actually being made.
Also, in general, in New York State, child support orders are based upon incomes, not assets. , however unlike the way it is done in other states, the non custodial parent does not get a reduction to his child support because he has visitation time, even if he as up to three overnight visits a week.
Despite the guidelines formula, New York child support laws and cases can be very complex and are fraught with pitfalls for the pro se litigant (The term “pro se” refers to acting as one’s own attorney or representing yourself in a civil or criminal matter) or even for an attorney who is not familiar with family law including the special law and procedures of child support cases. On the other hand, family law attorneys with experience in child support will have a working knowledge of the law and will be able to come up with a strategy for your case.
Because of all these reasons, you should strongly consider hiring a child support attorney to represent you. My family law firm offers a free initial telephone or video consultation on all child support matters. Child support is a very technical area of the law, and I am always surprised by lawyers who have never done a child support case think that they can just “wing it”. I like to think of myself as one of the best child support lawyers in New York City. I have many positive reviews from former clients posted in Google reviews.
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 or has other children to support are more complex and both parties should have experienced child support attorneys who are familiar with all aspects of family law to assure that their rights are protected. Other recurrent and often-times 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.
This is an area where the law is both complex and changes frequently. Therefore, except for the few “cut and dried cases”, this is not an area where you should attempt to represent yourself. In order to avoid unfair or even disastrous results, it is important for you to have a family law attorney who is familiar with these type of cases represent you.
New York City high net worth/ high income support cases
“High income” or “high net worth” child support cases are invariably much more complex, difficult, and hence more expensive than cases where the combined adjusted gross income of the parents is below the Cassano cap. There are several reasons for this. While the same law applies to New York City and the rest of New York state, high income cases are more common in New York City, especially in Manhattan and some parts of Brooklyn.
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. If the court decides to include income above the cap, it also has wide discretion to decide how high to go over the cap.
In deciding these issues the statute cites a number of relevant factors, and there is also a “catch-all” clause which allows the court to consider practically any other factor which is relevant and fair. The end result is that these cases are unpredictable as to result, hence hard to settle, and also cost a lot more money to try.
Secondly, high net worth people tend to have much more complicated financial affairs, including pensions, all kinds of investments, tax shelters, nannies, private schools, and the like. This complexity often results in very extensive discovery of documents, and even depositions, and trials are usually much longe. Because the child support amount that the Court is likely to order, the stakes are much higher. These are the cases where you see attorneys wheeling in large boxes of papers and documents.
New York modification cases and support agreements
The majority of child support cases that I get are modification cases where one or both parties seek to modify prior 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 child support modifications. Depending on when the prior order was entered, Courts will apply either the “old law” or the “new law”. The “new” statute changes the legal burden for a change in the order, but it also provides for the parties “opting out” of its new provisions, if the prior order was by agreement between the parties, and there is a valid “opt out” clause in the order.
New York private school and college expense child support obligations
According to New York case law, a non-custodial parent (usually the father) is not automatically responsible to pay for the cost of either private school or college. 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 school or college. Another important factor that the courts look at is the academic aptitudes or abilities of the child. In theory, even if the court finds that “exceptional circumstances” exist, they must find that the custodial parent has the ability to pay for private school or college. In high net worth cases which are settled without a trial, there will typically be an agreement or stipulation as to college education.
When the parents are more middle income it is not unusual for the attorneys to put in a provision in the stipulation that the non-custodial parent is required to pay based upon the cost of college in a state-run college or university.
Typically when a non-custodial parent is paying for college the basic support obligation under New York Law will continue until the child up to age 22 , as long as the child is enrolled on a full-time basis.
When the child or children go away for college it is possible that the non-custodial parent can get a credit against the basic child support obligation for the non-custodial parent’s contributions for room and board at the college. This is called “double dipping” and the attorney you hire should research this issue in advance of any trial or settlement to see what the current state of the law is.
Interstate New York child support 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 cases. For example, sometimes paternity and child support is resolved with an order in one state, and then the either of the parents moves to another state, and one of the parents files a petition to modify the order.
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 vacating arrears
What happens if the non custodial parent stops paying child support?
If you are the non custodial parent can you terminate or suspend the order?
Is it possible to vacate arrears?
If child support payments are being made through the Child Support Collection Unit, the Unit will know when payments stop. The Unit has the power to garnish wages and attach bank accounts or seize other property on their own without any court order. The unit can also suspend passports, driver’s licenses and other professional licenses automatically on their own.
If the child support collection unit is unable to locate any employer or bank account, the custodial parent will have to bring an enforcement case. These cases are typically brought in the Family Court. The Family Court has the power to give the petitioner a money judgement, and can also put the non paying parent on probation or even order jail time, if it finds that the failure to pay was “willful”. Willful means that the non paying parent chooses not to pay versus being unable to pay. Under the case of Powers v Powers, if the petitioner can show a failure to pay, the burden shifts to the non paying parent to prove that his failure to pay was due to circumstances beyond his control.
The court can also find a willful violation of child support if the non custodial parent fails to pay for court ordered childcare payments or court ordered health insurance for the child or children.
Quite often a non custodial parent may want to reduce the mount of the order, terminate or temporarily suspend the order, or vacate child support arrears that have accrued. It will typically be difficult or even very difficult to convince the court to terminate an order or vacate arrears, but if the non custodial parent has a good enough reason, it is possible to convince the court to reduce the amount of the order or even temporarily suspend the order.
If you’ve lost your NY child support case
If your child support case was in the Family Court, the final order would have been issued by a support magistrate, not a judge. If you believe that the decision was incorrect, and you wish to challenge the decision, you must act right away by filing written “objections”. These objections must be properly served on the other side and filed with the court.
If you do file written objections, a Family Court judge will rule on them and issue a written decision and/ or written order. If you believe that the judge also “got it wrong”, you are required to promptly file a Notice of Appeal. Appeals are decided by the Appellate Division. Please be advised that an appeal is typically expensive, and is typically a long process that can take up to a year or even more to be decided.