Petition for child support in Family Court

Today we would like to discuss how to file a petition for child support in New York State. As a matter of law, all parents are deemed responsible for the financial support of their children, regardless of whether they are divorced or were never married. All parents in New York State must support their children until the children are 21 years old or become emancipated. The examples when children under 21 years old become emancipated, and no longer are eligible for their parents’ support are when children are getting married, join military service or move out of their parent’s home, establish their own residence, start working, and support themselves.

So long as both parents contribute financially to the support of their children while living together or apart, there are no reasons for the Courts to get involved. The problem arises when one of the parents (usually the one who is not living with the children) stops contributing to the child support of his or her children. At that time the custodial parent (the parent who lives with the children) may petition the Court to establish and order child support from a non-custodial parent (the one who does not live with the children). If the married couple files for divorce, the issue of child support will be adjudicated in the divorce proceedings in Supreme Court which has sole jurisdiction over divorce. Should a non-custodial parent later violate the Judgment of Divorce that ordered particular child support to be paid, the custodial parent may start an enforcement action in Court.

If there are no prior Court orders of child support, the custodial parent wishing to obtain a Court order for child support may file a child support petition in a Family Court in the county where such parent lives with his or her children. Before the COVID-19 pandemic, such filing was done in person in Court in the Petition room. The clerks of the Family Court are usually helpful in assisting the people who are completing such petitions and such initial filing can be done without attorneys. Due to the ongoing COVID-19 pandemic, many courts limited access to the courthouses at various times and requested the filing of the petition to be done electronically, by completing the forms available at the Court’s website and emailing them to the Clerk or filing via the newly created Electronic Data Delivery System (“EDDS”). It is a good idea to check with the Family Court clerk of the county where you are residing whether they accept petitions in person, electronically file the petition, or both.

The petition will require basic information about your children and their parents. Additional information may be required by the Court’s clerk identifying the respondent. You will also need to submit financial information about yourself, such as recent pay stubs and income tax returns, and a complete financial disclosure affidavit. The same will be required of the respondent.

Once the petition is processed by the Court, you will receive a summons indicating the date and time of the first Court appearance and additional instructions. Due to the ongoing pandemic and the limitations on the court’s operation, there is a substantial wait time to get a court date. In New York City it could be one year based on our recent client’s case. Nevertheless, once you file the petition for child support, it will be calculated from the date of the filing of the petition, regardless of when the first court appearance will happen.

Once you get the Summons with the Court appearance date, you will have to arrange for the service of the petition on the respondent. This could be done by the sheriff’s office, by the professional process server company, or by any person over 18 years of age, not the petitioner, who will need to serve the respondent with the papers, and after that complete and submit an Affidavit of service to the Court.

During the first Court appearance, the Judge will ask for proof that the service on the Respondent was completed. The proof is in the form of an Affidavit of Service. If the Respondent is hiding from service, you will need to show to the Court the diligent efforts to serve the Respondent, and then ask the Court to allow an alternative service, such as electronic service to the Respondent’s phone or by publication.

Once the Court is satisfied that the service is completed, the Judge will ascertain the financial situation of both parties and order temporary child support based on the initial calculations. By law, the amount of child support depends on the non-custodial parent’s income and the number of children that are subject to the order of child support. There are certain adjustments allowed for the calculation of income, such as social security and Medicare tax, and NYC income tax. The base income for such calculations is the income that is listed or should have been listed on the most recent income tax return. Examples of other income deductions are prior child support orders to other children of the respondent. In New York state, the amount of child support for one child is 17% of income, for 2 children – 25%, for 3 children – 29%, for 4 children – 31%, and for 5 or more children – at least 35%. These percentages are applied to the combined parties’ annual income of $154,000. The judge has discretion regarding how to calculate the child support from the excess income. Also, if the amount of child support will cause the respondent to fall below to self-reserve amount or poverty level defined by law, such child support amount would be limited accordingly.

In addition to the above base child support, both parents will be ordered to share proportionally to their incomes the health expenses for the children, including the premiums and unreimbursed health expenses, as well as child care for the children if the custodial parent is working and needs childcare for the young children who cannot be left home alone.

It is worth mentioning that the Family Court Act’s definition of income is drastically different from the IRS’ definition of total income.  For example, the Family Court may impute the income to the respondent based on their prior income, education, and experience. If the respondent is unemployed, the Judge may ask the respondent to provide proof of seeking employment, request the journal documenting the active search for employment, and may refer the respondent to the training program. Please also take notice, that if you operate a cash business and underreport your business gross income, the Court may conduct a hearing to determine whether business income is underreported.

For example, some people claim a gross annual income of only $15,000 when they are self-employed, whereas their annual rent is higher than that amount. It is obvious in such situations that people underreport their income on purpose. You should be aware that both parties and their respective attorneys are allowed to conduct discovery including serving subpoenas on financial institutions, such as banks and credit card companies. Detailed analysis of the returns of such subpoenas may cause the Court to re-examine the claimed income of the Petitioner or Respondent and recalculate the amount of child support.

If the parties are in dispute over the amount of child support, the parties will engage in discovery and if necessary, in fact-finding hearings. At any time, the parties may settle and agree to the mutually acceptable child support, which should later be approved by the Judge. In the absence of such an agreement, the Judge will issue a child support order upon the completion of fact-finding and dispositional hearings.

Sometimes our clients are asking whether the child support order can be changed. Family Court Act (“FCA”) provides for three grounds for the child support modification petition that can be filed in Family court. FCA §451(3).  The first ground is a substantial change of circumstances. The second ground is the passing of at least three years since the last Court order of child support. Finally, the third ground for the child support modification is the change of income of either parent by 15 percent or more.

The law provides various sanctions for the violation of a child support order by the Court. The custodial parent that believes that he or she is not getting the proper child support, should file a Violation petition with the Court. Such sanctions can include suspension of the driving license or driving privilege in New York, denial of a U.S. passport, garnishment of wages, and even up to six months of imprisonment for willful contempt of court.

Please note, that this article does not constitute legal advice and its publishing and reading do not form an attorney/client relationship. With any specific questions regarding child support and your own matter please contact our office.