In order to get divorced in New York State, the Supreme Court must deal with any issues of child support. If the parents are not married, child support is handled in the Family Court. If the parents are divorced, subsequent petitions to modify, suspend, or enforce the initial child support order made in Supreme Court are usually made in the Family Court.
When the Supreme Court enters a final judgment of divorce, it typically specifies whether or not it retains exclusive jurisdiction over subsequent cases or not. A child support case must generally be made in the county of residence of the custodial parent .
Child Support Cases Are Handled in Family Court By Support Magistrates
Support Magistrates are attorneys who have been appointed 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 of written objections within 30 days (in some cases 35 days). Objections go to a Family Court Judge . The judge 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 the judge’s final order (not the support magistrate’s order) 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.
How Support Cases Are Commenced In The Family Court
NYC Family Courts are open to the public, and people are allowed to enter the courthouses for the purpose of filing cases.
Each courthouse has a petition room, where attorneys can drop off petitions that they had prepared, and pro se litigants can come in to draft and file petitions with the assistance of petition clerks. While these clerks do have significant training, they are not attorneys, and 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, along with Instructions for serving a petition , as to who may serve, when the person must be served, etc. The petitioner will also be given an affidavit of service form (along with other forms) which must be signed and notarized by the person who affects service. In order to avoid errors and delays, some litigants use the sheriff’s office or paid process servers 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, information about health insurance available for the child or children, and a financial disclosure affidavit.
As of the date of this article, filing can also be done electronically using various online systems,including the EDDS (Electronic Document Delivery System).
If Paternity Is Not Established
The Family Court cannot enter a child support order against a father unless his paternity has been established. In New York, paternity can be established in the following 3 ways:
- Child or children born during the marriage.
- Both parents sign an acknowledgement of paternity.
- An order of filiation (now called an order of parentage) has been entered by a court.
If paternity has not been established, the petitioner can file simultaneous paternity and child support petitions.
Procedures Once You Are In Family Court
The first appearance in Family Court 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 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 consent by all parties. If there is no consent, the magistrate will usually 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 child support order. It is extremely difficult to get a temporary child support modified while a support case is going on, once it has been issued, so it is very important to have a lawyer appear with you for the initial appearance. This temporary order can include extra amounts for payment of childcare expenses.
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 and will seldom be required to submit any proof that they are living with her. Magistrates may refuse to give a temporary support order to a father unless he presents a written custody order proving that he has custody, and courts may require a final order of custody before they give a father temporary child support.
The support 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 incomes of the parents. However, the magistrate can disregard the formula in certain situations, and use other factors such as the needs of the child or children as well as the assets of each parent.
This typically happens when the non-custodial parent, usually the father, fails to provide financial information or the magistrate believes that the financial information provided is suspect or inaccurate.
This is why it is very important to hire a lawyer before the first appearance, and provide the lawyer with your financial documents before they are submitted to the court.
If the case is an initial child support case and the support magistrate makes a temporary order for child support, the magistrate may ask the petitioner if she wants the payments to go through the support collection unit. If the non-custodial parent is employed, the court may issue an income execution order to his employer to garnish his wages. Social security payments and disability benefits can also be garnished.
If the child support case is likely to be contested, especially if it is a complex case or a high income case, it is wise for parties to do some kind of discovery. Unless you know the magistrate’s procedures, you should make an oral request for permission to conduct discovery.
Discovery usually consists of written requests for documents, or interrogatories, which are a series of questions which must be responded to by written answers sworn to under oath. In big money cases, depositions can also take place.
Most child support cases in Family Court are modification cases, where either or both parties are seeking to modify an existing support order and lower or raise the amount of the child support payment. If you are thinking of trying to reduce a court order of support, you should understand that child support orders are, with rare exceptions, based upon the income of the parties, not their expenses.
Some child support courts may require the custodial parent to show an increase in expenses related to the child or children, in addition to changes in income, in order to increase the child support amount.
Enforcement ases 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, Jail time is possible because wilful disobedience of a child support order is contempt of court.
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, even though termination of child support is supposed to be automatic at age 21, sometimes the Support Collection Unit, for whatever reason, keeps taking money out, even if there are no arrears. If you are the obligor, 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.