Child Support

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Child Support Cases

• Defending, Modifying or Terminating Your Child
  Support Obligation

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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.

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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.

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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.

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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 10,000 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 5,000 will result in passport
  denial or denial of renewal
• Notify the credit reporting agencies-more than
  1,000 in arrears or behind more than 2 (two)
  months of payments will be reported to the CRAs

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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

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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.

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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.

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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.

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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.

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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.

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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.

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Contact Information

• Tracey A. Bloodsaw, Esq.
• 110 Wall Street, 11th Floor
• New York, NY 10005
• (212)-709-8180
• alllawyer_at_aol.com
• www.traceyabloodsaw.com
• Free phone and email consultations.
• Available for speaking engagements,
  workshops/seminars and article submissions.
• Read my blog at www.traceyabloodsaw.com/blog

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Helpful Resources Links

• www.fatherhood.hhs.gov
• www.newyorkchildsupport.com
• www.nycourts.gov
• www.nysba.org
• www.liftonline.org
• www.lawhelp.org
• www.ancpr.org
• www.fathersrightsinc.com
• www.fatherhoodcoalition.org
• www.dadsrights.org