Defending Modifying or Terminating Your Child Support Obligation
2 I. Defending a Child Support Case
In New York most child support matters are commenced in Family Court by the custodial parent (or the parent/legal guardian the child resides with).
Once the matter is commenced in Family Court the person who files (the Petitioner) will be given a Summons Petition Affidavit of Service and Financial Disclosure Form.
You must be personally served with all of these documents (exc. For the Affidavit of Service) by someone other than the Petitioner who is over 18 years at your home or work between the hours of 8AM and 9PM any day except Sundays and legal holidays at least 8 days before the court date.
On your first appearance you must bring the completed Financial Disclosure Affidavit W-2 recent paystubs (2) tax returns and any additional documents that show your income.
3 I. Defending a Child Support Case
At the first appearance the Support Magistrate (SM) will review your proof of income documents if you do not have them all or the court does not believe you or the Petitioner claims that they are inaccurate you should be given another date to return with more accurate documents.
If there is an issue of Paternity (particularly where there was no marriage or Acknowledgement of Paternity signed by you) NOW IS THE TIME TO RAISE IT. The Petitioner can consent to paternity which results in an Order of Filiation or you can demand a DNA test.
4 I. Defending a Child Support Case
The petitioner may raise several issues at the first appearance regarding your income her expenses and/or your expenses. This is your opportunity to object dispute or defend those contentions.
The hearing will consist of the courts review of your financial documents review of the Petitioners financial documents and a calculation of support based on all of these. The court will apply the mandatory calculation based on your income (the Petitioners income is routinely given little consideration) will determine if there shall be add-ons and will direct you to pay through Support Collections Unit (SCU) unless the Petitioner consents to a direct pay.
HRA or public assistance cases are procedurally handled slightly different.
5 I. Defending a Child Support Case
Actual income vs. imputed income-income can easily be proven by recent pay stubs but in cases where there has been a recent change in income of more than 10000 or where the payor is self-employed an independent contractor works off the books or is unemployed establishing actual income is not so straightforward. In cases like these the court can deem the proof as unbelievable and impute income based on past earnings or earning potential.
Additional expenses (add-ons)-if the mother has children under the age of 12 years old works full-time is enrolled in school or is looking for work childcare expenses may be added onto the child support amount (she must show valid proof of these expenses a letter from the babysitter is NOT enough). Unreimbursed medical expenses i.e. co-pays will also be added. Extracurricular activities such as school tuition summer camp or sports may also be added.
6 I. Defending a Child Support Case
Current expenses-providing for other children and/or new family these are routinely raised by non-custodial parents as a valid concern once the child support amount is set particularly when it leaves the disposable income at an amount that is hard to live off of or provide for other children. The court has some discretion with regards to the amount it sets and can change it if it feels that it is unjust or inappropriate in situations such as this (using what is referred to as the f factors). But oftentimes the SM refuses to use this discretion leaving the payor with limited options.
7 I. Defending a Child Support Case
Arrears also pose a problem for payors because they are tacked onto the basic child support amount sometimes with no advanced warning creating even more of a financial hardship in providing for oneself and his family.
Calculating support correctly-this seems pretty straightforward but can be a bit confusing at times. First off income is broadly defined by the court i.e. disability benefits is INCOME although SSI is not. The only deductions made from your gross income are FICA NYC or Yonkers city taxes mandatory union dues child support paid by court order or written agreement alimony paid to someone other the petitioner by court order or written agreement. DEBT LIVING EXPENSES OR OTHER PAYCHECK DEDUCTIONS ARE NOT DEDUCTED.
8 I. Defending a Child Support Case
Not filing an objections within the time prescribed. You have thirty (30) days from the date of receiving the final order of support to file a written objections with the court. If you think the SM made an error this is your only recourse initially filing another petition or appeal IS NOT THE WAY TO CORRECT IT.
Defaulting or not showing up in court. If you are not present in court for the hearing the SM will determine support based on the childs standard of living or his/her needs. This more often than not results in a child support amount much higher than you can afford. If you find out about the case after the fact do not hesitate to file a petition in court to rectify this.
9 II.Modifying or Terminating a Child Support Order
When there is a child support order in place one that was not granted by default you can file a petition to have the amount changed when either your circumstances have changed the custodial parents situation has changed or there are changes in your childs life.
To file a modification petition there must be a showing of changed circumstances i.e. employment new family the child is older custody etc.
10 II.Modifying or Terminating a Child Support Order
Where the initial child support was determined based on an agreement (i.e. as part of a divorce settlement) between the parties the requirement for a modification is an unanticipated and unreasonable change in circumstances much stricter than in cases where there was no such agreement. These changes include employment illness etc. NOT necessarily the mundane things like remarriage.
You can request a change in the basic child support amount a change in how or to whom child support is paid a termination or reduction of add-ons or a change in the arrears (only in limited circumstances).
Arrears accumulated BEFORE you actually went to court to file a modification petition will not be waived or reduced. IT IS IMPERATIVE THAT YOU GO TO COURT AS SOON AS THERE IS A CHANGE IN CIRCUMSTANCES.
11 II.Modifying or Terminating a Child Support Order
Terminating child support can only be done by filing a petition in court stopping payments is NOT enough.
Termination is based on the childs death or emancipation or a change in custody. Adoption being in foster care having parental rights terminated a change in the childs residence the child having a baby of his/her own the child working or not being in school DOES NOT ENTITLE YOU TO A TERMINATION.
Arrears are almost never terminated even if the child reaches the age of twenty-one (21) before the entire arrears is paid off you will be responsible for paying arrears until there is a zero balance.
12 II.Modifying a Child Support Order
Employment-loss of a job loss of income/benefits or change in positions are all legitimate reasons for seeking a downward modification. However adequately proving these can be very difficult. The court must be convinced that you did not intentionally reduce income or lose your job/position that you are diligently looking for work and that you are trying to find something with comparable earning potential.
New family/marriage-this does not automatically meet the legal criteria for a change in your child support. A child born afterwards MUST live in the same household as you AND the amount of disposable income available to that child must be less than the amount available to the subject child to justify a reduction.
Custodial parents situation has changed-where the custodial parent has returned to work has acquired health benefits or better coverage had a change in living arrangements or has married/remarried getting a reduction in child support may be warranted.
13 II. Modifying a Child Support Order
Although the custodial parents income may not directly impact the amount you pay in child support there may be considerations regarding her income the court initially took into account that have changed and thus warrants a reduction. For example she was a one income household but has a new spouse making it a two income household.
Change in custody-a modification in this situation is only necessary when there are additional children and a split custody arrangement is in effect. Where one child lives with one parent and another lives with the other. Shared custody (joint physical) does not necessarily result in a reduction in child support. Changing custody from one parent to the other usually requires a termination petition being filed.
Childs situation has changed-usually a valid reason for reduction when add-ons were in place. If the child no longer needs a sitter no longer attends private school no longer participates in certain extracurricular activities or no longer has medical issues the court can reduce or terminate the add-on amount. The child living with someone else who is providing all of their needs is a basis for modification but NOT necessarily a reduction.
14 III.Facing an Enforcement or Violation Case
Even before the custodial parent takes the initiative to have child support enforced SCU can and often do use its overreaching authority to get child support from you. The enforcement devices available to SCU include-
Income execution-may also be issued by an attorney
Drivers or professional license suspensions-SCU must provide you with notice that they intend to serve DMV with a notice to suspend upon receipt you have 45 days to challenge it to make payment arrangements or show proof that paying arrears will bring you below the CSSA self-support reserve upon a denial by SCU you can request Family Courts intervention (which will be heard by a judge not SM). A professional license suspension may be commenced by Supreme Court or Family Court a state agency can denial the issuance or renewal of a license based on arrears
Federal state income tax seizures-refunds may be seized until the outstanding amount is zero
Lottery winnings seizure-if you are a winner allow someone else to claim the prize
Property liens and executions-bank accounts houses and even automobiles can be seized
Denial of passport-under federal law arrears totaling more than 5000 will result in passport denial or denial of renewal
Notify the credit reporting agencies-more than 1000 in arrears or behind more than 2 (two) months of payments will be reported to the CRAs
15 III.Facing an Enforcement or Violation Case
The custodial parent can initiate an enforcement or violation proceeding after only 1 missed payment.
Supreme Court or Family Court may hear the enforcements but Supreme Court only has jurisdiction if the child support resulted out a divorce or separation. Family Court has concurrent jurisdiction and can hear enforcements even if it resulted out of a divorce or separation unless the document explicitly states otherwise.
The court will entertain enforcement even if a violation petition is filed. However penalties under a violation are not available unless a violation petition is filed with the enforcement petition.
The remedies within the courts powers include
Probation-for up to one year failure to pay child support is a Class A misdemeanor
Cash undertakings-requires that a specified amount provided to the court to avoid further remedies
Sequestrationhomes automobiles etc. may be attached
16 III.Facing an Enforcement or Violation Case
Money judgments-mandatory where the payor cannot provide a good reason for failure to seek proper relief interest will accumulate and the custodial parent is now a judgment creditor entitled to creditor enforcement devices
Incarceration -up to six months weekends only jail term is possible the court can condition incarceration or keep incarcerated until a specified amount or the total arrears are paid or the court can order a combination of the remedies available to it
Counsel fees-to be paid upon the attorneys submission of an Affirmation of Services rendered
Participation in rehabilitative programs
Qualified Domestic Relations Order (QDRO)-your retirement account can be used as a source to pay the arrears
Those remedies available to SCU
In a violation case if the court finds that you willfully failed to pay then and only then can payment of counsel fees enrollment in rehabilitative programs probation and/or incarceration be ordered.
17 III.Facing an Enforcement or Violation Case
Failing to timely file a downward modification-as soon as your financial or economic situation changes you must go to court to file a petition.
Stopping payments altogether-even with limited resources you should give the custodial parent something.
Maintaining the same lifestyle while claiming to have less resources. You should not choose to pay a car note over making your child support payment.
Accepting cash or the equivalent from friends and families to cover living expenses instead of written loans or IOUs.
Avoiding trying to make payment arrangements with SCU.
Opting to forego getting a consultation or having an attorney represent you in court.
18 IV. MAJOR TIPS
When she tells you she is pregnant request a DNA (unless you are married AND living together) no matter what. Waiting to raise this issue in court may cost you.
After confirming the child is yours start paying something to the mother by money order or check and do so regularly.
Very early on try to come to an agreement and have it reduced to writing (once done have an attorney review it it is worth every penny.)
If you have other children get an child support agreement in writing from those mothers as early on as possible.
If married but separated gathering as much information about potential mates early on is priceless.
19 IV. MAJOR TIPS
Once a case is started in court be sure to make all court dates to be prepared by bringing all evidence and to know your rights.
In court be sure that the matter is being recorded be clear on what the SM is saying and/or doing request to see anything the custodial parent shows the SM object on the record to anything you dont agree with and at anytime you feel you need representation request that the matter be adjourned for the opportunity to hire an attorney.
Do the calculations yourself (it is advisable to have an attorney assist you) beforehand and raise or question any inconsistency on the record with the courts calculations.
20 IV. MAJOR TIPS
Do not be afraid to ask the court to use its discretion to lower the amount by considering the f factors it can only help not hurt.
If self-employed or independent contractor please consult with an attorney. The cost of a consultation is pennies when weighed against the thousands it can save you in the long run.
If doing a shared custody or joint physical arrangement a 50-50 time split be sure to include a provision for child support (in Family Court different judges will here the two cases.) One parent will still have to pay child support otherwise.
21 IV. MAJOR TIPS
Know what the self support reserve and poverty level guidelines either before going to court or when you get to court.
Once the final order is issued if there are doubts or concerns file and an Objections and request a copy of the transcript (you have to pay for this) and review it upon receipt.
When you receive a notice from SCU that there will be a cost of living adjustment (COLA) review send in an objection. This will get you an automatic court date and your financial situation will be considered anew. THIS IS THE BEST TIME TO OBTAIN A REDUCTION BECAUSE THE COURT WILL NOT SCRUTINIZE YOUR SITUATION THE SAME AS IN A MODIFICATION PETITION CASE.
Understand that SCU is a separate entity with extensive powers and authority. It can be a nightmare dealing with them but requires some persistence being diligent and being informed.
Know your rights know the petitioners burdens and the courts duties and responsibilities after all this can change your life for up to 21 years.
22 Contact Information
Tracey A. Bloodsaw Esq.
110 Wall Street 11th Floor
New York NY 10005
Free phone and email consultations.
Available for speaking engagements workshops/seminars and article submissions.
Read my blog at www.traceyabloodsaw.com/blog
23 Helpful Resources Links
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