Adequate Financial Support For Your Child
These days, times are tough. Having the money and resources you need to care for your child is extremely important. The thought that you might not have the financial foundation necessary to provide for your child’s most basic needs can be terrifying.
Both mothers and fathers want to do what is best for their children. However, sometimes this is easier said than done. Maybe you are a mother who is not receiving the court-mandated child support from your child’s father. Conversely, maybe you are a father who has found it excessively burdensome to keep up with the payments you provide your child every month.
At the Law Offices of David Bliven, we recognize the challenges parents face in today’s ever-changing world. Mr Bliven is also a Certified Financial Litigator, meaning he has excellent knowledge which is beneficial in complex & high income cases.
Child Support in Westchester & Bronx Counties
In New York, child support is determined by statutory guidelines. It is generally paid by the parent who has the higher income, but the court considers additional factors as well, including:
- Day care expenses
- Medical/dental insurance costs
- Educational expenses
- Incomes of both parents
- Number of children
The non-custodial parent will generally pay 17% of his/her adjusted gross income (gross – FICA & local tax) for 1 child, 25% for 2 children, 29% for 3 children, 31% for 4 children and 35% for 5 or more children.
With shared custody, usually (though not always) the higher-earning parent will pay the child support percentage (15%, 25%, etc.) based on the off-set between the incomes of the 2 parents. That said, shared custody must be exactly 50%-50% access – anything less is at most joint custody and does not result in a presumptive reduction of child support.
With joint custody, one may argue that the amount of time the non-custodial parent spend with the child should result in a deviation from the guidelines amount. However, as this is a nuanced argument turning upon numerous factors, rarely will you succeed unless you are represented by a very experienced attorney.
The Court may also consider deviations from guidelines support if various factors come into play: the parties’ incomes exceed the statutory cap (currently $143,000), or the payor has some unusual living expense, or has other children they are supporting pursuant to order or valid agreement. It should be noted this is not an exhaustive list, but these are the common deviation factors which are brought up.
One should note that having non-subject children residing with you for whom you’re supporting is generally not a factor in deviating from guidelines. Only if – after subtraction of the proposed order of support – the non-custodial parent is not left with enough income to minimally support those non-subject children will the Court consider a deviation. However, a necessary element of that argument is the financial ability of the other parent of those non-subject children to, in turn, support those kids. In my humble experience, this argument rarely succeeds.
Our firm will explain to you in detail how the child support guidelines work, and how they will be relevant to your unique circumstances.
WHAT ARE THE FACTORS IN DEVIATING FROM GUIDELINES CHILD SUPPORT?
The Statutory Factors are:
- The financial resources of the custodial and non-custodial parent, and those of the child;
- The physical and emotional health of the child and his/her 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 for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
- Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, 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; and
- Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
How does custody affect child support?
If you haven’t yet separated from your spouse but are contemplating divorce, you may wish to consider the ramifications of shared custody on child support.
Generally, full guidelines child support is assessed to the non-custodial parent, meaning s/he will pay 17% of adjusted gross income for 1 child, 25% for 2 children, etc. However, in a situation where custody is shared 50-50%, the courts often do an “off-set,” meaning they’ll compare the mother’s income to the father’s, and only assess the percentages to the difference between the 2 incomes. This could potentially result in a significant savings for the parent who would otherwise be the non-custodial parent.
Begin now by taking an equal role in the children’s lives. Share the responsibility of ensuring the kids get to school, extracurricular activities, doctor’s appointments, etc. If your spouse has more time on his/her hands than you, then suggest s/he take up some activity which gets them out of the house. Have the kids then spend time with a relative or sitter if you’re not available. This serves to more equalize the actual time each parent spends with the kids. There may be other ideas as well, so you’re best advised to sit down with an experienced family law attorney today to plan for tomorrow!
Mother is demanding child support but I’m already supporting another child – what to do?
Sometimes a father is sued for child support – or threatened to be sued – demanding support despite already supporting a child from a previous relationship. There’s a couple of options here to ensure proper credit.
If the support you are paying is pursuant to a prior order or prior valid, written agreement (usually a “stipulation of settlement” or “separation agreement”), then you can bring that prior order or agreement with you to court. So long as you also bring proof you are actually paying support pursuant to that prior order or agreement, you should get a credit. The credit works by subtracting the prior support amount off one’s adjusted gross income before calculating support for the subsequent child.
If you do not have a prior order or valid, written agreement, then try to get one in place before the mother of the subsequent child files for child support. If you do an agreement, make sure to have it drafted by an experienced Child Support lawyer, as not “any old agreement” will do. If the subsequent mother has already filed, then the only way you can get credit is to claim (if it’s the case) that after subtracting the support order for the subsequent child, the prior child will not be left with enough money to minimally support that child.
What income counts for Child Support purposes?
Many non-custodial parents think that child support is just calculated on his/her base salary. Think again! All income counts, so this will include overtime or income from a 2d job. As such, if the custodial parent threatens to sue for child support, you may wish to consider cutting back on overtime, or giving up that 2d job – or else you may be stuck with having to keep earning that income whether you like it or not.
Some people don’t realize that if they have rental income, dividend income, or income from investments that it counts as income for child support purposes as well. Additionally, if you receive a tax refund, then guess what? That’s income as well. The good rule of thumb to use is: any money coming into your wallet is probably going to be considered income for child support purposes. Be forewarned!
Time Limits on Requesting a DNA (Paternity) Test
Many fathers unwittingly sign the “acknowledgement of paternity” form when their baby is born, not realizing that this form then puts a time limit of 60 days (generally) as to when they must request a DNA test.
Generally, when a new father signs the acknowledgement of paternity, he generally has up to 60 days to move to revoke the acknowledgement by asking for a DNA test. If he does not, then he must generally prove “fraud, duress, or material mistake of fact.” This requirement is usually not satisfied by claiming “she told me the child is mine & now I have doubts.”
Many hospitals push both forms in front of the new parents & ask the father to sign both. Sometimes nurses mistakenly explain that the father must sign the acknowledgement of paternity in order to have his name placed on the birth certificate. This isn’t true! The mother can put down anyone’s name as the father on the child’s birth certificate – placing the name on the birth certificate (in itself) does not establish paternity rights. Thus, if you have even a small doubt as to whether you are or are not the father, don’t sign the acknowledgement of paternity. Just have the mother list your name on the birth certificate (if you both want it) & then go back to celebrating. You can always sign the acknowledgement of paternity at a later time.
Save now for college – or pay alot in child support later!
Many parents who pay child support for a minor child (or children) don’t realize that they generally must ALSO save towards college.
Generally a Support Magistrate must assess a parent’s pro-rata share of his/her child’s college tuition – in addition to paying basic support. If, for example, the tuition was $20,000 per year, and a parent’s share is $10,000, then s/he must come up with that share – even if it means taking out a loan (PLUS, etc.). The law says that generally, if it could have reasonably anticipated a child will go to college, then the parents should put aside a small amount of money each year (in, say a 529 account) – which over the years will build up enough to at least partially pay.
New Law Governing Modifications
In 2010, New York law amended its child support guidelines to include an automatic modification of child support once every three years. This means that if your child support order is up for a review, and you or your child’s parent has undergone a substantial change in circumstances, the court will assess your situation to determine if a modification is necessary.
The outcome of your child support case will have a significant impact on the life of your child. To effectively protect their rights and interests, it is important to employ the services of a skilled child support lawyer. Call (914) 468-0968, or contact us online to schedule your initial assessment.