You may have been served with a child support petition, and you want to know if the New York courts will take into consideration your other child or children in setting a child support order. Unfortunately, the answer to this question can be quite complicated, depending upon your particular situation.
Alternatively, you may have an existing child support order and since that order was entered, you may have had another child or children that you are supporting. You may wonder if you can reduce your exiting child support obligations. Once again, the answer may be quite complicated.
This article will attempt to briefly examine both of these situations, however it is only intended to provide you with some very basic information, and you will need to have a full consultation with an experienced child support attorney if you want legal advice or assistance as to your particular situation. Also, this article only discusses child support laws in New York State. Laws in other states may differ.
Initial Child Support Case, When You Are Already Supporting Another Child Or Children Who Do Not Live With You
If you have a new child support case, you are entitled to have an adjustment in the amount of the new child support order if you have actually been paying child support for another child or children under a court order or written child support agreement. You will have to submit a copy of the court order or written agreement, and must prove that you have actually being making child support payments under the prior order or written agreement.
The family court judge will give you credit on the new child support petition by deducting the amount of payments for the other child or children from your Adjusted Gross Income using the child support guidelines formula.
Adjusted Gross Income (“AGI”) is your gross income minus medicare taxes, social security taxes, and city taxes (not federal or state income taxes). After deducting these payments from your adjusted gross income, the child support percentage (i.e. 17% for one child) will be applied to the AGI in order to calculate the amount of child support.
In calculating a child support order using the guidelines, the court uses the income of the parents or parties, and the number of children. Assets and expenses are not considered. Also income of a parent’s spouse is not considered either, except for some very special situations
Initial Child Support Case, You Are Supporting Other Children Who Live With You
It is more difficult to get a reduction in child support because you are supporting other children who live with you. First of all, It is not enough that you show that you are supporting other children, you would have to have a legal obligation to support them. In almost all situations, you would have to be legal father of these children. If you are merely a step parent, you would have almost never have a legal obligation to support children that are not yours.
Second, the court would have to do a deviation hearing, wherein you would be asking the court to deviate from the normal child support guidelines formula. Under New York child support law, the court is normally required to use the guidelines formula in determining the amount of child support , obligations, but can deviate from the formula in situations where applying the formula would result in a child support order which is unjust or inappropriate. At this hearing the party asking the court to deviate from the guidelines has the burden of proof. In the context of a case where there are other children living with the payor, this hearing is sometimes referred to as a resource balancing hearing. .Family Court Act 413 specifically states that the court can compare the “resources” available to the children who are living with you to the “resources” available to the child that you are being asked to pay child support for.
It is interesting that the statute uses the term “resources” instead of income or adjusted gross income. While the calculation of child support under the support guidelines formula is based upon adjusted gross income of the parties, courts have found that the term “resources” is much broader than income, and, for example, can include assets.
The statute also allows the court, in this type of “resource balancing” hearing, to consider the non custodial parent’s expenses, at least expenses which are related to raising the children who reside in his home. These expenses could include child care expenses, health care expenses, health insurance expenses, and possibly educational expenses.
The New York City Bar Association’s website gives an example of resource balancing where a father is being asked to pay child support for a child and he lives with his girl friend and another child that he has with the girl friend. According to the New York City Bar Association the child support court would look at the amount that he was being asked to pay under the formula and compare that amount with the amount of resources left over to support the other child, however they would add in the income of the girl friend in determining the total resources available to the child living with him.
It is obvious from this example, that deviations will usually be granted when the father has multiple children living with him or in situations where a child or children have special needs which are costly to satisfy. This is because if the new child support case is for one child, the father will only have to pay 17% of his adjusted gross income (this is somewhat of an over simplification but it shows the general concept) in child support, which leaves him 83% of his AGI for the other child or children living with him.
Child Support Modification Petition Filed By You After You Have A New Baby
For any child support modification, you will first have set out fact in your petition that show a substantial change of circumstances. The legal standard for change of circumstances depends on whether or not the order you are seeking to modify was entered before November 13, 2010 or after that date, and whether that order was made on consent , or was calculated after a trial by the support magistrate.
If the order that you are trying to modify was entered after November 13, 2010, it is subject to a new statute and it is easier to get a modification. However it is unclear whether just having a new child that you have to pay child support for would be considered a substantial change of circumstances even under the new statute. It is your burden to prove that there has been a substantial change of circumstances.
Assuming that the court considers having a new child to satisfy the standard for a modification, there are two possible situations.
#1 You Already Have A Child Support Order And Want To Reduce It Because You Have Had A New Baby Who Does Not Live With You
If you have a new baby and you make a written agreement with the mother of that child and start paying her child support, it is unlikely that you can modify the first order. However if the mother of the new baby were to file a child support case for that child, you could get a reduction in child support for the second child based upon the support order for the first child.
#2 You Already Have A Child Support Order And Want To Reduce It Because You Have A New Baby Who Lives With You
Here, you would have to do a deviation hearing focusing on “resource balancing”, as discussed above. Resource balancing hearings are rare, and you will definitely need an experienced child support attorney or family law lawyer who has either done these hearings before, or can look up the case law and figure out how to do one.