New York Child Support Issues
Calculating Basic New York Child Support
New York child support is similar to that in other states. In all States, child support is calculated pursuant to a specific law that contains a formula. In New York that law is known as the Child Support Standards Act (the “CSSA”). The CSSA contains a detailed formula and guideline for calculating the appropriate amount of child support.
Basic New York child support is the amount of support that will be paid on a regular basis, usually every weekly or bi-weekly. To determine basic support, the Court must know the income of both parents. Income under the CSSA includes any income that was or should have been reported on the parent’s most recent federal income tax return. Income is not limited to income received from an employer or business. It also includes any benefits received, such as workers compensation, disability, unemployment, social security, veterans, pension and retirement, fellowships and stipends and annuity payments. Public assistance is one benefit that is not added into a party’s gross income. If one or both of the parents is receiving public assistance, the amount received should not be included in that parent’s gross income.
When determining what a parent’s income is, the income actually reported, or being received by a parent does not bind a Court. A Court can decide that a parent is capable of earning more money. When that happens the Court may impute income to that parent. To impute income to a parent, a Court determines that person’s income level by adding other monies to actual income. For example, if a parent has consistently earned income of $50,000, but at the time of the Court’s determination is unemployed or earning $20,000, the Court may calculate support on income level of $50,000 as a result of that parent’s income earning ability or income earning history. In doing that, the Court will look at that parent’s education and work experience, will determine what that parent is capable of earning, and will assess whether there is a good reason for the reduction in that parent’s income. This prevents a parent from quitting his or her job, or taking a job paying substantially less, in Order to avoid paying New York Child Support.
Courts consider other issues when determining a parent’s income. For example, if a parent has received fringe benefits or regular gifts, the Court may impute additional income to the parent based upon those payments. Other monies received can also be considered, even if the Court does not technically determine that those payments will be considered income. Those other payments can include other gifts, inheritances, lottery winnings and life insurance benefits.
After the Court determines both of the parents’ incomes, including any imputed income, the Court deducts certain items. Those items are Social Security and Medicare taxes and New York City or Yonkers City taxes. If a parent is already paying Court Ordered child or spousal support for a former spouse or children from a former relationship, or if the parent is paying spousal support or maintenance to the other parent, those payments are also deducted from income.
After deducting the above items from each parent’s income, the Court calculates basic New York child support on the combined parental income. For example, if after adding together all income and subtracting all of the deductions one parent’s income is $40,000 and the other parent’s income is $20,000, then the combined parental income is $60,000.
To arrive at the Basic New York Child Support amount, the combined parental income is multiplied by a percentage. The percentage that is used is dependent upon the number of children that the parties have. For one child, the percentage is 17%. For two children, the percentage is 25%. For three children the percentage is 29%. For four children the percentage is 31 % and for five or more children the percentage is no less than 35%.
The Basic New York Child Support amount that is arrived at after doing the above calculation is the total support due from both parents. That support must then be apportioned between the parents based upon their incomes. Using the above example, since one parent earns $40,000 to the other parent’s income of $20,000, the parent earning the larger amount actually earns two thirds of the income. That parent would be responsible for two thirds of the Basic Child Support amount due on the combined parental income. If the parent earning $40,000 is the non-custodial parent, that parent will pay two thirds of the Basic Child Support amount on the combined parental income to the other parent. If the parent earning $20,000 is the non-custodial parent, that parent would pay one third of the Basic Child Support amount on the combined parental income to the other parent.
The CSSA requires that the Basic Child Support be calculated as set forth above. In most Separation Agreements and in Court Orders, the calculation is written out in that manner. To arrive at a quick calculation of Basic Child Support without going through the mechanics of determining combined parental income and then apportioning the Basic Child Support, simply multiply the appropriate percentage by the income of the non-custodial parent. That calculation will give you the same figure for the payment of Basic Child Support by that parent to the other parent.
The CSSA requires that Basic Child Support first be calculated on the first $80,000 in combined parental income. If the combined parental income exceeds $80,000, the Court can apply the percentages above to all of that income, or devise a different method for assessing Basic Child Support to the amount over $80,000. In many cases where the combined parental income does not exceed $150,000, Courts generally apply the formula to the entire income amount. In cases where the combined parental income exceeds $250,000 there is often a reduction in either the support percentage or a cap on the income subject to that percentage. Each case is unique and the facts particular to each family will govern a Court’s decision making. There are ten factors listed in the CSSA that the Court can consider in determining whether to apply the above percentages to all of the parents’ combined income. Those factors are:
the financial resources of the parents and the child;
the physical and emotional health of the child and the child’s special needs and aptitudes;
the standard of living the child would have enjoyed had the marriage or household not been dissolved;
the tax consequences to the parties;
the non-monetary contributions that the parents will make toward the care and well-being of the child;
the educational needs of either parent;
a determination that the gross income of one parent is substantially less than the other parent’s gross income;
the needs of the children of the non-custodial parent (children not involved in the instant proceeding) for whom support has not been deducted from income, and the financial resources of the person obligated to support such children;
if the child is not on public assistance, (i) extraordinary visitation expenses of the non-custodial parent, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof;
any other factor or factors that the Court determines is relevant in each case.
In New York, every parent has an obligation to support his or her children. If a non-custodial parent is surviving at or barely above the poverty level, or if they are unemployed, they will pay a minimum New York Child Support payment of $25 or $50 per month, depending upon the actual circumstances of the case.
Parents are not obligated to apply the CSSA in New York. They can calculate support in any manner that they choose. However, parents can only do so if they are entering into a voluntary agreement. A Court cannot determine New York Child Support on any methodology other than the CSSA.
If the parties agree to an amount of support that they arrived at by a method other than the CSSA, it is important that they state why they are deviating from the CSSA. That statement must be in a written agreement or an oral stipulation entered into in open Court and recorded by a Court Reporter. The agreement must state that the parties have been advised of the terms of the CSSA and that application of the CSSA would “presumptively result in the correct amount of Child Support”.
Any agreement that deviates from the CSSA must contain two other very important provisions. The agreement must state what amount of New York child support would have been paid pursuant to the CSSA if the parties followed the CSSA. It must also state in detail the factual reasons for the parents’ deviation from the CSSA.
A parent’s support obligation is not limited to only “basic” New York child support.
What Is New York Child Support
In New York, both parents are obligated to provide financial support for their children until they reach the age of twenty-one. In intact households, providing for a child’s support is rarely an issue. The parents merely contribute to the child’s expenses in whatever manner they have adopted as a family.
When parents separate or Divorce, how the two parents meet the needs and expenses of their children is often a contentious issue. This issue can be resolved informally, by an agreement, or by a Court after litigation. The expenses of raising a child include food and clothing, housing, utilities, medical expenses, transportation, education, childcare, extra-curricular activities and more.
Every state has a Child Support Standards Act (CSSA) which is a written law or Statue, which dictates how Child Support will be calculated and paid. The CSSA is a very detailed law, set out in many pages of fine print. It defines income, support and other terms, and provides a step by step formula for Courts and attorneys to use to determine Child Support issues. The CSSA has the advantage of providing consistency. It does not matter what County you live in or what County your case is pending in. Child Support will be determined by reference to the CSSA in every Court in New York State.
A parent’s obligation to pay New York child support does not depend on marital status. Unmarried parents, as well as those who are or were married, can be obligated to pay support for their children. There is no requirement in New York that you must be, or have been, married to your child’s parent in Order to receive Child Support. If the parents were never married, the Court will first make a determination as to paternity before considering the issue of New York Child Support. If paternity is established, an Order of Filiation will be entered and the Court will move on to the issue of support.
In rare cases, a parent may be directed to pay New York child support even if they are not the biological parent. When Courts have ruled in such a manner, they have usually based their determination on the fact that an unmarried “father” openly recognized a child as his own or had a legal relationship to the child through adoption.
As set forth above, both parents have an obligation to provide New York child support. The CSSA actually requires an analysis of both parents’ income and assesses a New York Child Support obligation for each of them. Although Child Support is initially calculated based on the income of both parties, only the non-custodial parent makes a New York Child Support payment. That payment is made to the custodial parent. New York requires that the Court identify a custodial and non-custodial parent for the purposes of the CSSA, even when the parties have joint Custody. In many families where the parents have joint Custody, one parent is still the primary physical custodian and the children reside primarily with that parent. That parent would be the custodial parent.
When parents share physical Custody on an absolutely equal basis, it is not so easy to determine which parent must pay child support which, can cause a great deal of litigation. In many cases, the Court will simply Order the party with the larger income to pay New York child support to the other parent. In almost all cases, that result is absolutely unsatisfying to the other parent. When parents are sharing Custody on an absolutely equal basis, they are often doing so for their child’s benefit and they are also usually capable of resolving disputes that they may have. As a result many equal Custody cases result in negotiated agreements that reflect the parents’ attempt to equally provide for their children’s needs without resorting impersonal formulas and Court Ordered decisions.
The Child Support Standards Act is a detailed statute because Child Support can be such a contentious issue. In addition to the numerous pages of legislation contained in the CSSA, many Courts have written decisions interpreting and explaining the provisions of the CSSA. To further complicate matters, the lower level Courts in New York are occasionally overruled by the higher level, or Appellate Courts. As a result, the laws affecting Child Support change with some degree of regularity. To determine support in any case, your Attorney must be familiar with both the CSSA and the current decisions of the Courts.
The CSSA became effective in 1989. It is currently applicable to a majority of the New York Child Support Orders in effect. If your Order of Child Support predates the CSSA, the CSSA might not apply to you. You should consult with an attorney to determine if that issue affects you.
New York Child Support/Visitation Connection
There is a widely held belief among the general public that, if a party is not paying child support, the other parent has the right to withhold visitation or, conversely, that if a party is being denied visitation, he or she has the right not to pay child support. Both beliefs are incorrect and, if acted upon, can have serious consequences.
The issues of child support and visitation are very different and usually unrelated. In New York child support and visitation are rights that belong to children, not parents. New York Child support is based upon the child's right to receive adequate financial assistance. The right does not belong to the custodial parent. Similarly, it is presumed that it is in the best interests of the child to have regular, meaningful contact with both parents. In recognition of this interest, the child has the right to visit with the non-custodial parent.
Once an Order has been entered by a Court, its terms are legally binding upon both parties. A parent who withholds visitation or who stops paying New York child support is violating his or her legal obligations and can be punished by the Court. It is not a defense to an allegation of a violation of visitation that the other parent was not paying child support. Similarly, a parent cannot claim as a defense to a support violation proceeding, that he or she was being denied visitation.
It a parent is found to have violated the terms of an existing Court order, the consequences can be very serious. Courts have changed custody, imposed prison sentences and issued financial sanctions against parents found in violation of existing Orders.
If you find yourself in the position where you are not receiving New York child support, or if you are being denied visitation, do not take the law into your own hands. Rather than "punish" the other parent, by withholding visitation if you have not received child support, or by denying visitation if you have not received child support payments, the proper course of action is to file a violation petition or motion with the appropriate Court. To do otherwise, will place yourself in legal jeopardy.
Having said all of the above, it is possible that under limited circumstances a Court will impose the remedy that you cannot yourself impose. For example, if a Court determines that visitation has been interfered with by a custodial parent, the Court can suspend New York child support payments. That does not happen very often and a Court would have to determine that the interference with visitation was serious and ongoing. One recent Appellate Court decision in New York stated that a custodial parent's "parental alienation" of the children from the non-custodial parent justified a suspension of New York child support payments until such time as the "parental alienation" ceased. Most Judges will not want to impose such a drastic sanction because of the effect upon the children if child support is not received. However, this is a possible remedy that you can seek from the Court. You simply cannot impose this remedy yourself.
It is not likely that a Court would suspend visitation as a remedy if New york child support payments have not been paid. However, the possible sanctions for a willful failure to pay child support include a sentence of incarceration. If the parent who has failed to pay support is jailed, obviously, their visitation rights will be affected.
The message to be taken from these rules is that you should enlist the aid of your local Court to enforce your rights to either visitation or New York child support. Do not attempt to fashion your own remedy to punish the other parent. If you do, you may find that you become the target of the Court's discontent.