New York Child Support

New York child support is an obligation of both parents.  Parents are obligated to provide financial support for their children until they reach the age of twenty-one. In intact households, providing for  child support is rarely an issue. The parents merely contribute to the child's expenses in whatever manner they deem appropriate.

When parents separate or Divorce, how the two parents meet the needs and expenses of their children can be a difficult issue. New York child support includes the expenses of raising a child, including food and clothing, housing, utilities, medical expenses, transportation, education, childcare, extra-curricular activities and more.

New York has a Child Support Standards Act (CSSA) which is a written law or Statute, which dictates how New York 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 New York 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. New York child support will be determined by reference to the CSSA in every Court in the 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 Child Support. If paternity is established, an Order of Filiation will be entered and the Court will move on to the issue of support.

Only the non-custodial parent makes a 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 and that parent will make the New York child support payment.

When parents share physical Custody on an absolutely equal basis, it is not so easy to determine which parent must pay 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 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.

New York Child Support - Basic Support

New York child support is calculated pursuant to the CSSA by first determining Basic Child Support. 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 the New York child 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%.

New York child support calculated by 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 New York 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 New York 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 New York child support amount on the combined parental income to the other parent.

New York child support must be calculated on the first $80,000 in combined parental income under the CSSA. 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 when determining New York child support and when deciding whether to apply the above percentages to all of the parents' combined income. Those factors are:

1. the financial resources of the parents and the child;

2. the physical and emotional health of the child and the child's special needs and aptitudes;

3. the standard of living the child would have enjoyed had the marriage or household not been dissolved;

4. the tax consequences to the parties;

5. the non-monetary contributions that the parents will make toward the care and well-being of the child;

6. the educational needs of either parent;

7. a determination that the gross income of one parent is substantially less than the other parent's gross income;

8. 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;

9. 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;

10. any other factor or factors that the Court determines is relevant in each case.

Parents are not obligated to apply the CSSA to calculate New York child support. They can calculate New York child 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 New York child 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.

New York Child Support - Child Care

New York child support includes "add on" child support obligations that parents must pay for their children. Those add on expenses are in addition to the Basic Support and include unreimbursed medical expenses and daycare expenses.

Reasonable day care expenses incurred to allow a custodial parent to work, to seek work, or to allow a custodial parent to enroll in educational programs that will lead to employment will be paid by both parents. The important word on this issue is "reasonable". Reasonable can include paying a day care provider for a full week of daycare when the children only attend daycare four days. Some day care facilities will not care for children on a part time basis. Others require that the daycare be paid every week, even if the family is away on vacation. These and other requirements of the day care provider can seem harsh. In fact, many non-custodial parents will claim that the custodial parent purposely obtained the most expensive daycare available because of those requirements.

The obligation to pay day care expenses is based upon an apportionment of the parents' incomes. If one parent earns 40% of the the combined parental income, that parent will pay 40% of the daycare expense in addition to the basic child support amount. For example, if the weekly day care expense is $100, that parent will pay $40.

New York Child Support - Medical Expenses

New York child support includes the payment of unreimbursed health care expenses. These expenses are an add on to the Basic child support amount and they are divided in proportion to the parties' income. Managing unreimbursed health expense can be difficult. A number of issues seem to be recurring and problematic for non-custodial parents in the payment of unreimbursed health expenses. Those issues include the timing of the expenses, notice for extraordinary expenses (usually dental or optical), the reasonableness of the expenses incurred, and notice on a regular basis of the expenses incurred. If a non-custodial parent is struggling to make ends meet, an unexpected $300 dental bill will be a serious problem. If the custodial parent does not provide receipts and seek reimbursement for health expenses for eight months and then demands reimbursement for all of the expense incurred during that time period, the non-custodial parent is put in the same position.

New York Child support - Educational Expenses

New York child support can include the costs of current or future college, private, special or enriched education for a child.  This support is in addition to Basic child support. Based upon the facts and circumstances of the case, the Court will determine whether a parent must pay such expenses and, if so, the reasonable and fair amount of each parent's financial responsibility. This is one area of child support where the portion paid by each parent is not necessarily apportioned based upon his or her income.

If parents agree on sending their child to college but are unable to agree on how they will contribute to that child support cost, either party may ask the Court to decide the issue. The Court will base its decision on any factor that it deems relevant. In some cases, the expenses are divided between the parents using the apportionment to income percentages that are used for Basic Child Support and support add-ons. The school selected, available aid, and over-all cost will be issues that a Court must address. Some Courts require the parents to pay the cost of school after the application of loans. It is also not unusual for a Court to require that the child apply for all available aid and grants.

A parent who is directed to contribute to college expenses in addition to paying New York child support, may seek a reduction in basic child support especially if the child is attending school away from home. Since Basic child support and room and board at school both cover shelter and food expenses, a reduction would seem reasonable in most cases. However, a reduction is not automatic and it is not always given.

Then entering into a written agreement or stipulation, you have the ability to address many issues pertaining to college expenses that you cannot address if a Court decides the issue. Some parents agree that a contribution will only be to a school that is approved, within reason, by both parents. Other parents agree that a contribution will only be made if the child maintains a certain grade point average. These are issues that would ordinarily be made by parents in an intact family and it is entirely appropriate for parents who are Divorced or Separated to maintain some level of control over their child's college career. If the college issue is resolved in an agreement or stipulation, you can also address the issue of a reduction in basic support if a child attends school away from home.

Some parents send their children to private elementary or secondary school and seek a contribution for that expense as a part of New York child support from a non-custodial parent. Whether the non-custodial parent will be Ordered to contribute to that expense will be dependent upon all of the families' circumstances. One important issue to be considered by a Court assessing this issue is whether the parents agreed to incur a private school expense. It is not uncommon for a parent who was paying for that expense to refuse to do so when the parties physically separate. The reason for that refusal can be the additional expenses incurred for maintaining two households and paying support. It also can be related to an attempt to leverage a litigation or settlement position.

Emancipation and New York Child Support

New York child support is paid until the child reaches the age of 21, unless the child is emancipated earlier.  What constitutes emancipation is a case by case factual determination.  A child attending college away from home is not emancipated.  A child not attending college, living at home and working full time may be emancipated.  New York child support cannot be terminated simply because a parent believes their child is emancipated.  A decision must be obtained from the Family Court or Supreme Court to stop the child support payments.

New York Child Support and Tax Deductions

New York child support law is not the primary resource on the issue of who takes the tax deductions for the children.  This is more often an issue of Federal law than an issue of New York law.  Under the Federal Tax Code, the custodial parent has the right to take the children as dependency deductions on that parent's tax return.  The non-custodial parent cannot take that deduction unless the custodial parent has signed the appropriate Federal form. 

It is possible for the non-custodial parent to obtain the right to take the tax deductions for the children.  That can occur through negotiation, when the parties enter into an Agreement regarding their New York child support issues.  It can also occur through litigation.  Judges who decide New York child support cases have the ability to designate the non-custodial parent as the parent who will take the tax deduction.