In order to get divorced in New York State, the Supreme Court must deal with the issue of child support. If the parents are not married, child support is handled in the Family Court . If the parents were married subsequent petitions to modify, suspend, or enforce the initial child support order made in Supreme Court must, in the great majority of cases, must also be made in the Family Court.
Child Support Cases Are Handled in NY Family Court By Support Magistrates
Support Magistrates are not judges but in many respects act as judges. They are attorneys who have been appointed for 4 year terms to oversee child support cases. Support magistrates have limited powers. They can set an amount of child support, try contested child support cases, make paternity orders on consent or on inquest, modify, terminate or suspend a child support order, and can try violation cases. They can order DNA testing, award attorney fees, and sign subpoenas.
Support magistrates do not have the power to decide contested paternity cases, do estoppel hearings, try child support cases where a defense of lack of visitation is asserted, or decide whether or not the presumption of legitimacy applies.
All final orders of a Support Magistrate can be challenged by a party’s filing written objections within 30 days (in some cases 35 days). Objections go to a Family Court Judge who can affirm the magistrate’s order, modify it, or send it back to the magistrate for a re-trial with instructions about what the magistrate is supposed to do. If a party fails to make and file written objections within the time allowed, in almost all situations he or she will be out of luck.
A Party Who Disagrees With The Family Court’s Support Order May Appeal
Appeals are made to the Appellate Division. A party who wishes to appeal must serve and file a Notice of Appeal within 30 days (In some cases 35 days). If a party fails to do so within the required period, he or she will, in almost all situations, be out of luck. Because litigants, under the law, are required to know the statutory law, these rules are strictly applied, even if a litigant is unaware of them. However, it should be noted that court orders typically have a clause in them that notifies the litigant what he or she must do if they disagree with the order.
Appeals are typically very expensive, and in some departments ( the legal system of the State of New York is divided up into departments, i.e. Manhattan and the Bronx constitute the first department) can take up to a year or more, sometimes even 2 years, to decide. Because of the strict procedural requirements and the specialized knowledge needed to successfully perfect an appeal, it is extremely rare for a pro se litigate to be able to win an appeal.
How Child Support Cases Are Commenced In The Family Court
As of the date of this article, the NYC Family Courts are still closed to the public, but people are allowed to enter the courthouses for the purpose of filing certain emergency cases. Child support cases, as of the date of this article, are not considered emergencies.
Before Covid, most litigants and attorneys filed cases by walking into the courthouse. Each courthouse has a petition room, where attorneys could drop off petitions that they had prepared, and pro se litigants could draft and file petitions with the assistance of petition clerks. While these clerks do have significant training, they are not attorneys, and they sometimes make mistakes, or their understanding of the law is sometimes plain wrong.
Once the petition room drafts the petition, the petitioner will be asked to read it and sign it under penalty of perjury. The petition room clerks are notaries. The petitioner will be given a “summons packet” which includes copies of the signed petition and a summons which must be served on the opposing party, Instructions for serving a petition , as to who may serve, when the person must be served, etc. The petitioner will also be given one of more copies of an affidavit of service which must be signed and notarized by the person who effects service. In order to avoid errors and delays, some litigants pay the sheriff’s office to effect service.
When the petitioner appears in court he or she must bring the completed affidavit of service . The summons packet typically includes instructions about which documents the litigant is required to bring with him for the initial court date. These documents include income tax returns, pay stubs, and a financial disclosure affidavit.
The above paragraphs summarize the procedures pre-covid, and most likely will be resume after the Family Courts re-open. During Covid this is all done electronically using various online systems, such as MIcrosoft Teams and EDDS (Electronic Document Delivery System.
If Paternity Is Not Established
The Family Court cannot enter a child support ordered against a father unless his paternity has been established. In New York paternity can be established in the following 3 ways:
- Child born during the marriage
- Both parents sign an acknowledgement of paternity
- An order of filiation has been entered
If paternity has not been established, the petitioner can file simultaneous paternity and child support petitions. he
Procedures Once You Are In Family Court
The first appearance in Family Court, which is referred to as the “initial appearance,” can be very important. A litigant who contests jurisdiction may be required, in certain situations, to bring this challenge to the court’s attention on the initial appearance or the objection will be deemed to be waived.
I you reside in a different state , you would be very wise to hire an experienced family law attorney who specializes in child support to protect your rights. If paternity is not yet established, the support magistrate may enter an order of paternity if there is a consent by all parties. If there is no consent, the magistrate may order DNA tests unless an issue of estoppel is raised. If estoppel is an issue, the case will have to be referred to a Family Court Judge for an estoppel hearing.
If paternity has already been established, the magistrate will usually set a temporary order of support. The magistrate has very wide discretion in setting a temporary order, however, assuming that the case results in a final support order, the non custodial parent or respondent will be given credit for any extra amount, retroactive to the date of filing of the petition.
a Mother who claims that the child or children are living with her will usually be granted temporary support orders, even if she does not have any custody order. Magistrates may refuse to give a temporary support order to a father unless he presents a written custody order.
The magistrate may base the temporary order upon his estimate of the likely child support obligation under the child support guidelines The guidelines give a formula which applies a percentage based upon the number of children and the income of the parents. However the magistrate can disregard the formula and use other factors such as the needs of the child or children as well as the assets of each parent.
If the case looks like it is likely to be contested, especially if it is a complex case or a high income case, it is wise to do some kind of discovery. Although most courts that I have practiced in allow discovery in child support cases as a matter of course, unless you know the magistrate’s procedures, to make an oral request for permission to conduct discovery.
Discovery is usually be requests for documents or interrogatories, which are a series of questions which must be responded to by written answers sworn to under oath by a notary. In big money cases, depositions can also take place.
Enforcement Cases In The Family Court- Is Jail Time Possible?
The Family Court has the power to enforce child support orders. The Court may grant the petitioner a money judgment for the amount owed in back support. This order allows the petitioner to get the City Marshall to garnish wages and seize money in bank accounts. In addition, the Family Court may put the respondent on probation, revoke his or her driver’s license, or even put him or her in jail for up to six months. ,
How To Terminate A Child Support Order
In New York, child support ends at age 21, unless there was an order, on agreement, that it continue beyond 21 for a period of time while the child is in college. However, sometimes the child reaches 21 and the Child Support Collection Unit, for whatever reason, keeps taking money out. If you are the payor, and your child is approaching 21, and you are making child support payments through the child support collection unit, you should file a petition to terminate the order.
You will also have to file a petition to terminate the order if the child becomes emancipated, has moved in with you, or if you and your ex have re-united and are living together. If you do not file such a petition money will continue to be taken out of your pay checks, and’ or arrears may accrue.