Child support hearings in New York are held either in the Supreme Court incident to a divorce, or in the Family Court, for people with children who are not married , or for modifications of previous child support orders incident to a divorce. In Family Court support proceedings are presided by Support Magistrates, experienced attorneys who are appointed for five year terms.
Child support cases that are presided over by Support Magistrates may have somewhat relaxed procedures, especially when the parties are not represented by lawyers.
This article is intended to give general information to pro se litigants and to lawyers who are unfamiliar with child support cases, but cannot possibly cover everything you need to know. Except in the most simple cases, it is almost always essential to be represented by an experienced child support lawyer .
Importance Of Preparation
Child Support hearings can be very complicated, may require legal research, and usually involve a large number of documents. For this reason, preparation ahead of time is crucial. I organize all the documents that I intend to put into evidence , putting each document in its own separate folder, with a brief description of the document written on the cover. In more complex cases, it is helpful to create a list of documents, which can be used as a check list during the actual hearing. I also organize any documents that I believe may be necessary or helpful for cross examination of the other party or the other party’s witnesses.
Although some support magistrates do this automatically, it is helpful to ask the magistrate to set a date before trial where both parties must supply the other side with copies of any documents they intend to put into evidence, as well as a list of witnesses.
If you are calling your own witnesses, you should write out a list of questions that you wish to ask. If you know who the other side’s witnesses are, and what they are likely to say, you should also write out a list of cross examination questions.
It may be necessary to subpoena witnesses to come to court, and you can also subpoena them to come to court and bring documents specified by the subpoena. While certain subpoenas can be signed by an attorney, if the witness’ testimony or the documents are important to your case, you must get the subpoenas signed by the Magistrate, and you should get the signed subpoenas in enough time to have them served on the witnesses.
Initial Child Support Cases
If there has never been a child support order from any court, the court will have to determine first, who the child or children are living with, and second, if the case seeks child support from an alleged father, whether he is the legal father of the child or children. If the parties are not married to each other, there is no prior order of paternity, and the alleged father never signed an acknowledgment of paternity, he is not the legal father, and the case cannot proceed until paternity is established.
Assuming that paternity is not an issue, the Magistrate will look at the documents which the parties are required to bring to court with them to the initial appearance. These documents would typically include income tax returns, w-2 forms, pay stubs, and a sworn Financial Disclosure Affidavit. If either of the parties does not provide the documents, they may be given another opportunity to provide them (If they have a decent excuse) and the case will be adjourned. If the documents have all been provided, sometimes the magistrate will have enough information to make a final child support order.
In New York State, Child Support Guidelines presumptively apply when combined adjusted gross income is below something called the Cassano Cap. The amount of the cap is increased every year, and the amount of the order can sometimes be quickly calculated based upon the incomes of the parties and the number of children. However, there are a multitude of special situations that may have to be taken into account. Examples are overtime pay, part time work, income from businesses, child care expenses, expenses for private schools and for college, and even obscure jurisdictional issues. If one of the parties does not agree to the order suggested or calculated by the Magistrate, the case will be adjourned for further proceedings, including a hearing.
In the meantime, the court will usually set a temporary order for child support. It is important to try to calculate how much the guidelines order should be, so that you can make arguments for a different amount. This is important because it is very rare for a Magistrate to modify the temporary order until the hearing has been completed, and child support cases can sometimes go on for a year or more.
Deviations From The Child Support Guidelines
In most situations, it is very difficult to convince the court to deviate from the guidelines. If the non-custodial parent’s income is very low, i.e. below the Federal Poverty Level or the Self- Support Reserve, the amount of the order could be $50 or $25 a month, while cases involving combined incomes above the Cassano cap, can be very complicated, as the court may based the formula on the amount of combined income only up to the Cassano cap amount, can base the order upon the total amount of combined income, or any amount in between.
There are also some very rare situations where the court might deviate from the formula.
Child Support Modifications Cases
If there has been a prior final order for child support, and someone is now trying to change the amount of the order, this is called a modification case. It could either be an upward modification case or a downward modification case, and sometimes both parties have filed simultaneously and the court will be dealing both types of petitions. There are different legal standards and requirements depending on the date that the latest final child support order was issued. For parties who are using sample forms provided by the court, these samples only apply to the “newer” orders, so that it is important to keep this in mind when drafting a petition, because if you use the wrong standards, your petition may be deemed to be defective and could be dismissed.
As a general rule, modifications are granted based upon changes in a party’s income, not changes in expenses. However, in the case of upward modifications, some courts will grant them based solely upon increased expenses pertaining to the child or children, while other courts require some change in income in addition to increased expenses of the children in order to modify upwards.
Discovery In Support Cases
Discovery is, to my knowledge, universally allowed in Child Support cases, and is routine in high net worth and high income cases. While most child support parts allow you to just serve the other party with discovery demands, some want you to ask for permission to serve discovery, but this can be done orally.
Discovery is most often used when someone believes that the other party is hiding or mis-stating their income, or possibly their work hours. People who are wealthy have many ways to reduce their taxable income, some legitimate, and some not, especially if they have a business. When a party is served with a discovery demand, he can provide the documents or information requested, or he can serve written objections to disclosure which should specify which item or items the party is objecting to, and the reason for each objection. Common objections are that demands are overbroad, burdensome, or protected by some type of privilege. If a party fails or refuses to provide responses, the other party can make a motion to compel the disclosure, and in some situations can seek various penalties from the court.
Opening And Closing Statements In Child Support Cases
While opening and closing statements are universally used in jury cases, and are infrequently used in child support cases, parties do have a right to present an opening statement at the beginning of the hearing, and a closing statement at the end. If the case is somewhat complicated, it is helpful to write out a rough draft of the closing statement, as it helps you to present a case which is on point or even compelling. An opening statement may be helpful if the facts of the case are very complex, and you fear that the magistrate may have trouble following the facts and understanding the case.
If You Lose The Hearing
For cases decided by Support Magistrates, if either party is dissatisfied with the order, they can file objections within 30 days. The objections are sent to a Family Court Judge. If either party is dissatisfied with the Judge’s decision, they have 30 days to file a notice of appeal, which will give them the right to challenge the order in appellate court. Objections must be properly served on the other party and do not require any specific format,but should cite facts that were brought out during the hearing, and reasons why the decision was in error, and may require citations to statutes and/ or cases in order to prevail.