New York Family Court Act Article 4: Child Support

In New York, whether you're upstate in Rockland or Westchester County or in Manhattan or Brooklyn, a parent is obligated to support their child until the age of 21, unless the child is "emancipated," meaning they are married, self-sustaining, has left the parental home and refuses to obey the parent, or is in the military. Typically, child support is established by a custodial parent, best with the assistance of his or her child support lawyer or Family Court attorney, filing a Child Support Petition under Family Court Act Article 4 against the non-custodial parent. Such a petition may also be brought by the government, typically if the child is receiving social services, or by the child if the child lives apart from both parents.

Child Support Petition

In order to modify an existing child support order in New York, a party must file a Child Support Modification Petition. There are many legal requirements and prerequisites to filing such a petition, and the assistance of an attorney in drafting the petition can be extremely beneficial as well as valuable in ultimately securing the requested child support. For example, to get a child support petition off the ground, the petitioning party must adequately allege either a substantial change in circumstances since the prior order was issued, such as the cost of raising the child or a parent's income, that three years have elapsed since the last order was issued or modified, or that there has been an involuntary change in a party's income by 15% or more since the prior order was issued or modified. If a petition fails to adequately allege such a basis for the modification, the petition will likely be summarily dismissed.

Who Pays Child Support and How Much

The determination of a child support is essentially a financial issue. All parties must provide copies of their tax returns, pay stubs, proof of expenses, and a financial disclosure statement showing their income and expenses. A Support Magistrate, rather than a judge, will hear the case, preside over a fact-finding Hearing if necessary, calculate the amount of support owed based on the statutory computations, and set a schedule for regular payments. Payments can either be made directly from one party to the other, or through the Support Collections Unit ("SCU"), which can either collect payments made directly by the non-custodial parent, or extract payments from that parent's paychecks.

The amount of child support is a straightforward, although somewhat complicated, calculation. You can get a preliminary idea by using a free Child Support Calculator here . It is critical to recognize that while statutorily calculated pursuant to the NY Family Court Act, Section 413, there are other factors under that same statute that can be relevant in arriving at the final amount of support to examine with your lawyer. The judge or support magistrate in a New York Family Court does have the discretion to deviate from the statutory amount in certain circumstances, or if the parties agree to a different amount. Having an attorney who can identify these factors and any unusual circumstances that may lead to a deviation from the standard statutory amount of support, or who can negotiate effectively with the other party regarding an agreed-upon deviation from the standard calculation, is critical.

Appealing a Magistrate’s Child Support Decision

Both parties have the right to appeal the magistrate's decision by filing an objection, which will ask a Family Court judge to review the case. The Family Court judge will then review the case, the financial documents and any other evidence that was presented, and either overrule or affirm the Magistrate's decision. That Family Court judge's ruling may then be appealed by either party to a higher court. A Family Court lawyer familiar with the statutory calculations pursuant to section 413 of the Family Court Act, as well as the appellate procedures, can guide you through this process and advocate for you to best avoid an adverse child support determination.

Failure to Adhere to Child Support Decision: Filing a Violation of Petition

The recipient of the child support may later file a Violation Petition, alleging that the non-custodial parent is not making the required payments. If the magistrate finds that there has been a violation, he or she may order that SCU begin handling the collection of support, order the non-custodial parent to make a lump-sum payment by a certain date, or even jail the non-compliant parent for up to 6 months if the magistrate finds that the failure to make the payments was willful. The non-custodial parent may also have their professional, business and/or driver's license suspended, bank accounts and/or tax refunds seized, and passport revoked.

If there is a change in circumstances, either party has the right to file a petition to modify the child support award, although child support collected by SCI will be automatically reviewed every three years. Critically, a non-custodial parent filing a modification request must continue to make their child support payments timely until the case is heard, and especially until filing the petition.

Have no misgivings, when it comes to the best interest of the child and maintaining your financial obligations to a child, the New York Family Court, whether by Family Court Judge or Support Magistrate, will potentially be willing to modify the financial calculations set forth by the Family Court Act Section 413, but failure to abide by their binding decision will come at a consequence. Instead of fighting from a place of weakness or appealing a decision that is overly slanted against you by either limiting the other parties support or not requiring he or she pay enough to you, retain a Family Court attorney with experience in the calculations and considerations that go into a determination of child support.

Call the New York family law lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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