Child Support is money that a noncustodial parent (the parent who does not live with the child) pays to the custodial (the parent who lives with the child) for the care of a child or children under the age of 21. This money is used to pay for the child’s care, maintenance, educational expenses, or child care if the custodial parent is working.
Parents can agree to child support payments by entering into an agreement, or a court can determine the amount of child support that is necessary for the child. In both scenarios, a court must approve the child support amount.
In New York, courts use the Child Support Standards Act to determine the appropriate amount of child support. Under the act, courts rely on a child support formula that is based primarily on the parents’ incomes and the number of supported children.
For a complete description of how courts calculate child support, see New York Child Support FAQs, by Teresa Wall-Cyb.
After the court determines both parents’ incomes, it then selects an applicable percentage, which is based on the number of children. The combined income of both parents is then multiplied by this percentage to determine the amount of child support.
The New York child support percentages are:
17% of income for one child
25% of income for two children
29% of income for three children
31% of income for four children
35% of income for five or more children.
The above formula is used for a combined income of up to $136,000. For situations where parental income is over $136,000, courts have discretion to use the above guidelines or take other factors into consideration.
As mentioned above, parents can agree on the amount of child support payments by entering into a written agreement which is called a “Stipulation for Child Support.” These agreements can provide for more or less child support than the guidelines used by the courts under the Child Support Standards Act.
However, if parents decide to enter into such an agreement, the following must be included:
It should be noted that the court can override the parents’ agreement to ensure that the child or children are being adequately supported. You can access sample copies of child support forms on the New York Court’s website by clicking here.
Either parent can ask the court to modify or change a child support order. The parent requesting the change must go to court and file a “petition” (legal paperwork) asking for a modification of the child support order.
Parents may seek a modification or change of a child support order based upon a showing of:
Substantial Change in Circumstances
What exactly constitutes a “substantial change of circumstances” varies from case to case. Some examples include changes in a child's medical needs, such as an increase in medical bills for a sick child, a paying parent's illness or decrease in the parent’s income.
Three years have passed
A parent can file a petition for the court to recalculate a child support order from three years prior in situations where either parent’s income has changed.
Change in Income by 15%
If a paying parent’s income decreases by at least 15%, he/she can file a petition for “downward modification,” or a reduction to child support. Parents asking for this relief based on a decrease in income must be able to show the court that the reduced income was not voluntary and that they are engaged in real efforts to secure more income or other employment.
If the paying parent’s income has increased, the receiving parent may petition the court for an “upward modification” or increase to the previous child support order.
If any of the above situations exist in your case, you must go to court and ask for a modification, because the child support order will not automatically change. It is very important that you do not stop making payments as you can be held in “contempt of court,” which means you have violated a court order and can be fined or even ordered to serve time in jail.
It’s never a good idea to quit your job as a way to avoid making child support payments. As mentioned above, a parent must justify a change of circumstances, such as a decrease in income, before a court will modify support.
If one parent voluntarily quits a job, this does not mean that child support payments are no longer required. If the court finds the job loss was voluntary, it will calculate child support payments by “imputing income.” Imputing income means that the court will base your income on what you earned in the past or what you are capable of earning based on several factors, including job history, education, skills, and local employment opportunities.
The court’s modification will date back to the day the parent goes to court and files the petition, not the date that the change of circumstances took place.
Parents are free to set their own terms and conditions that will justify a change in their child support obligations, just as long as the agreement does not sacrifice the needs of the child. However, to be considered enforceable, this type of written agreement must be accepted by a judge and incorporated into the court’s original order on support.
If either parent then seeks a change in support, which violates a valid modification agreement, the court will grant it only if the parent requesting modification can show an “unanticipated and unreasonable change of circumstances.” For example, a New York court granted a father’s petition for downward modification (despite a valid modification agreement) where he lost his job, through no fault of his own, and could not find new employment although he sent out 200 resumes and registered with 15 employment agencies. Since the father’s loss of unemployment was “unanticipated” and he was truly unable to find work, the court modified the child support amount.
If you have questions about child support modification, you should contact an experienced family law attorney in your area.
For a glossary of child support terms click, here
For assistance with filing a petition for child support modification click, here
For noncustodial parent information click, here
For custodial parent information, click, here