Child support is money that a custodial parent (the parent with whom a child primarily resides) receives from the other parent for the care of a child or children under the age of 21 years. Child support includes:
Note that the obligation to pay child support can end prior to age 21 if a child is “emancipated”, such as where the child gets married, becomes self-supporting, or joins the military.
Ordinarily, officials of the New York Family Court (referred to as “support magistrates”) will calculate the child support amount the non-custodial parent will pay. But this isn’t an arbitrary determination. Rather, these officials follow state child support guidelines. Basically, these guidelines reach a support figure by taking into account the parents’ adjusted gross income and the number of dependent children.
The parents can also attempt to agree on a support figure, but any such agreement won’t be binding unless it’s approved by the court. There are various forms New York uses for matters relating to child support. In the case of a parental child support agreement, the courts require the filing of a Stipulation for Child Support.
Child support obligations in New York are covered by statutes DRL §240 1-b and Family Court Act – FCT §413.
It’s not unusual for a parent to inquire about how to modify child support in New York—either higher or lower. By filing a required modification petition, child support can be changed. But requesting a change doesn’t guarantee you’ll get one.
There are essentially three reasons upon which a parent can base a request for the modification of an existing child support order. They are:
As to what constitutes a substantial change in circumstances, there’s really no one-size-fits-all definition. Rather, a judge or hearing officer will examine the facts of each particular case, and determine whether those facts are enough to warrant a modification of the support order. Some examples of possible substantial changes are when a child’s medical needs have increased, a parent has become permanently disabled, or there’s been a significant decrease in the paying parent’s income.
Regarding the second and third items on the above list of modification reasons, be aware that the parents can enter into a binding agreement which states that those reasons won’t apply to their case.
As an aside, note that New York law provides for a cost of living increase for child support orders. But you can’t request one earlier than 2 years after the entry of the existing order. In cases where a child is receiving government assistance, the state will address a cost of living adjustment without either parent requesting it.
Yes. Parents who are incarcerated can file a modification petition based on a substantial change in circumstances. But, they can only do this if their incarceration isn’t due to a failure to pay child support, or an offense against the other parent or the child.
A change in the support order will be effective as of the date you file the modification petition with the court, not before then. It’s crucial to remember that you can’t take it upon yourself to lower your child support payments, even if you have a legitimate reason. Doing that would be a recipe for disaster, because by decreasing or stopping your payments, you’re violating the existing order. Arrears will build up, and that will eventually unleash the myriad of collection tools the state has at its disposal. And, you could conceivably end up being held in contempt of court and possibly incarcerated. So if you believe your circumstances entitle you to a child support modification, file the modification petition immediately.
Sometimes there are legitimate reasons for voluntarily leaving your current employment. But if you’re thinking of doing it just to do an end run around your child support obligation—don’t!
If you go to court for a modification, and the court finds that your job loss was voluntary and without good cause, it will “impute” income to you. Imputing income means that the court will base your income, for child support purposes, on what you earned in the past or what you’re capable of earning, based on several factors, including job history, education, skills, and local employment opportunities.
So the reality is that child support will likely stay the same as you were paying before, because you’d be hard-pressed to convince a judge that you’re not capable of earning exactly what you were making at the job you left. You’ll walk out of court effectively having cut off your nose to spite your face.
As indicated above, parents can enter into a written agreement regarding child support. This is permitted under DRL - §240 1-b (h). To be considered enforceable, this type of agreement must be accepted by a judge and incorporated into the divorce judgment or existing support order.
Because both parents agreed to the amount of support, the law takes the position that the parents took into account circumstances that could arise in the future. So—assuming the agreement was fair and equitable when it was entered into—if either parent seeks a change in support, that parent will have to prove to the court that there’s been an unanticipated change of circumstances and an accompanying showing of need. And parents requesting an increase in support will also have to prove that the child’s needs aren’t being met under the existing order.
You can go to the New York government website for assistance with child support modification.