Child support issues arise where there are children from a marriage, divorce, parties living together or never married and living apart. Child custody does not have to be established for a parent to get child support. However, where the parties were never married, paternity must be established first. The non-custodial parent is obligated to provide financial support for a child up until the age of 21 years, unless the child becomes emancipated before they reach 21 years old. Emancipation requires a showing that the child is employed full-time and is self supporting, has enlisted in the Armed Forces, married or abandoned the custodial parent's home due to his/her will. In some instances, typically in Contested Divorce settlements, the obligation to support may be extended beyond 21 years of age.
Applying the Child Support Standards Act ("CSSA"):
The Child Support Standards Act ("CSSA") directs the percentage of parents' income that should be directed to provide support for children. This statute states that depending on the number of children, a set amount of the non-custodial parent's income will be allotted for support. The sources of income is not limited to wages, but include unemployment, disability or social security benefits, lottery winnings, personal injury or worker's compensation awards. Both parents' gross income is reduced by deductions for Medicare, Social Security and local taxes; prior child support orders or agreements; or maintenance (alimony) actually paid. The CSSA percentage is then applied to this adjusted gross income amount, up to $80,000 and the annual amount of support is determined. If the combined incomes exceed $80,000 then the courts have the discretion to use the same percentage or to consider a number of factors to determine amount for the basic support obligation. The courts very seldom deviate from the percentages set forth in the CSSA; in most circumstances the statute is applied. Each parent is responsible for a proportion of this figure based on their respective adjusted incomes. However, the custodial parent does not actually send a payment because the child resides with that parent. The non-custodial parent actually makes his/her payments to the custodial parent directly or through the Office of Child Support Enforcement (in NYC it is the Support Collections Unit "SCU"). In addition to the basic support obligation, the non-custodial parent may be required to pay "add-ons". "Add-ons" include of reasonable childcare expenses, private school tuition or other school related expenses and unreimbursed medical expenses. The "add-on" does not take into account the non-custodial parent's ability to pay but is added onto the basic support obligation. However, he/she is only responsible for his/her pro rata share of the "add-on" expenses not the entire amount. A child support order may also direct either parent to provide medical coverage for the child. If arrears have accumulated during the pendency of the child support case, after an order was entered or after an order was terminated, the arrears amount may also be added to the basic support obligation.
In an Contested Divorce, the non-custodial parent may also be required to provide a life insurance policy where the child(ren) is/are named as the beneficiary. In addition, the non-custodial parent may be able to claim at least one of the children each year or all of the child(ren) on alternate years on his/her tax return.
For the self-employed, employee who is not a W-2 worker or the independent contractor, proving income may be very difficult. The court can "impute" or assume income based on benefits, gifts, contributions, etc. received, regardless of the source.
Child support payments are not considered income for the custodial parent nor are they tax deductible for the non-custodial parent.
Child Support and Child Visitation/Child Custody:
Child support is required even if it is not the child(ren)'s biological parent that has custody, i.e. the child lives with a legal guardian. Even when the parents have joint physical custody, the non-custodial parent may be required to pay child support. Child support obligation does not terminate when child custody is changed (unless it is the paying parent that custody is granted to), when the child visitation vacation schedule is being exercised or when an abuse/neglect case is pending. Child support obligations is not conditioned on getting child visitation, the obligation still exists even if visitation is denied. However, in the most extreme circumstance, the court may suspend child support when the custodial parent deliberately interferes with child visitation.
Violation and Modification Petitions:
Child support must be paid regularly to avoid a violation petition being filed. If there is situation where paying child support is difficult or impossible, it is imperative that a modification petition be filed immediately. If not, then a violation petition may be filed or the Office of Child Support Enforcement can impose penalties. The court can enter a money judgment, order that the non-paying parent's pension be disbursed to cover the unpaid balance, can order incarceration and/or can require an "undertaking" amount to be deposited with the court. The Office of Child Support Enforcement may suspend driver's or professional licenses, levy bank accounts, seize tax refunds, prevent travel abroad or direct an income execution.
When the non-custodial parent loses a job, gets a lowere paying job or incurs additional expenses, making paying child support difficult or impossible, then a "downward" modification petition needs to be filed. If the custodial parent loses a job, goes back to school or incurs additional expenses and has difficulty supporting the child, then an "upward" modification petition needs to be filed.
Contact my office to discuss your child support, child support arrears, child support violation or Support Collections Unit ("SCU") issues.