Child Support

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Title: Child Support

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Child Support Workshop – PowerPoint PPT presentation

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Title: Child Support

1
Child Support Cases

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

Common Issues
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

Common Issues
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

Common Issues
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.