Understanding Upward Modification Child Support Cases- Article by Child Support Lawyer

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The issue of when a court will increase the amount of child support from the amount set in a prior support order is, unfortunately, quite complex. This is because the rules for child support modifications vary depending upon various factors, including the year of the last order, whether the order to be modified was based upon a stipulation, a consent order, or an order made after a trial, and also upon which county the modification petition was filed in. 

New York State law recognizes the fact that, although an initial order can be set during a divorce, or, in cases where the parties were not married, by an initial order of child support from the Family Court, financial situations may change over time, making it necessary for the initial child support obligation to be changed in certain situations. At the same time, there is a public policy that  parties should be allowed, in most situations, to make voluntary agreements in civil cases which will be enforced by the Courts. But because child support affects not only the parents but also their children, who have not signed off on the agreement, both the legislature and the NY Courts have struggled to balance these considerations, resulting in complicated laws and decisions from the Courts when it comes to  modifying a child support agreement. 

This article is intended to provide general information about the law of child support in New York State only, as laws can and do differ in other states. Also, in New York State, laws and  court’s interpretations of laws can change over time, so some of this information may become outdated over time. 

The majority of petitions which seek to modify a prior child support order are for downward modification, perhaps because under the COLA statute payess of child support orders received periodic increases based upon increases in inflation. Alnother reason may be that the rules for upward modifications are somewhat more difficult, as different parts of new york have some differences in thhe rules.

However, it can be fairly stated that, just as a noncustodial parent can request a downward modification of child support, asking the court to reduce the amount of a child support order, a custodial parent can request an upward modification of child support, asking that the court increase the amount of child support.  

Modification petitions for orders were entered before 2010. 

Until 2010, the legal standard for granting a modification of a child support order was different , depending on whether the order which a party was seeking to modify was a consent order or stipulation, or an order which was issued without consent (which usually meant a trial took place). 

If the order was based upon a trial, the party seeking to modify the order had to show a substantial change in circumstances, while if the prior order was based upon a stipulation or consent, the standard was that the party seeking to modify must show an unanticipated and substantial change in circumstances. Since not all changes in life are unanticipated, this standard made it significantly more difficult to modify a child support order based upon a stipulation. 

For example, changes in the economy, changes in income of a self-employed individual from year to year, and the increased costs of raising a child as he or she gets older, are all considered to be anticipated. 

When a party sought to increase a child support order which was based upon a contested hearing, there was a “split” in authority between the judicial departments. In the Second Judicial department, which includes Brooklyn, Staten Island, Nassau, Suffolk, and Westchester, either increase in the non-custodial party’s income or an increase in the expenses of raising the child or children could be considered to be a substantial change in circumstances in many situations. 

In the First Department, which consists of Manhattan and the Bronx, in order to increase the amount of child support, the party seeking the increase had to show both an increase in the income of the non-custodial parent, and an increase in the expenses of  supporting the child or children. 

Modification  petitions for cases where orders were entered after 2010

In 2010 there were significant changes in the law for modification to child support orders. This law did not apply retroactively.  Under the “new” law, a party could get a modification of a prior child support order if the income of either party had increased or decreased at least 15%, if at least 3 years had passed since the date of the last order, or if there was a substantial change of circumstances. 

The new statute allowed the parties to opt out from changes in these new rules if done in a properly drafted written agreement, except that they could not opt out of the last grounds, a substantial change in circumstances.  

The upshot of the new law (assuming it applies based upon the date of the order which is sought to be modified_ is that if three years has passed, or if the income of either of the parties has increased or decreased by 15% since the last order, it should be possible for a party to qualify for an increase in teh amount of child support, even if the needs of the child or children have not increased. 

If 3 years have not passed since the last order and neither party’s income has increased or decreased at least 15%, it would be possible to get an upward modification based upon an increase in the needs of the child or children if the case is in the second department, but not if it is in the first department.  I have seen a fairly recent case in the first department, where the appellate court ruled that a combination  of increase in the cost of raising the child, coupled with an involuntary decrease in the income of the custodial parent, constituted a substantial change of circumstances. 

How does the COLA statute affect upward modification petitions? 

The COLA  law allows for quasi-automatic increases in child support based upon increases in the cost of living.  A  non-custodial parent who receives a cost of living petition has a choice. He or she can do nothing, in which case the cost of living increase is automatically granted, or can file objections to the COLA, in which case the case will be heard for a de novo hearing where child support will be recalculated based upon current incomes. Strangely enough, the custodial parent can also object to the COLA  increase, which he or she would only do if they wanted to trigger the de novo hearing. I have not seen any reported cases which discuss the impact of  the COLA statute on upward modifications or  what the legal standard should be at a de novo hearing as far as upward modifications where the only change in the parties’ financial situation has been the expenses of raising the child or children. 

The need for an experienced attorney

As can be seen from the discussion above, many child support issues, and child support modifications in particular, can be extremely complex, so that both parties would be well served by having a lawyer who is very experienced in child support law, and has extensive experience trying child support cases in  the Family Court.  This is especially true because complex child support issues often require extensive  litigation before Support Magistrates, Family Court judges, and appellate courts.  An experienced child support attorney will not only know the law, but will also know how to present the necessary proof that must be presented in order to justify an increase in a party’s child support obligation. If a party cannot aford to be represented by an attorney in court, he should, if possible have a long and detailed consultation with an experienced attorney so that they will understand the issues and have some idea how to do the trial. 

Most child support modification cases are heard in the Family Court before Support Magistrates. However, after  the Magistrate has made a decision, either party can bring the child support modification case before a Family Court judge by filing written objections. The Family Court Judge can affirm the Magistrate’s order, modify it, or even send it back to the Magistrate for a “do over”. If either party is dissatisfied with the Judge’s decision, he or she has a right to appeal to the Appellate Division.