[1.0] MODIFICATION OF CHILD SUPPORT
Once a child support order or agreement is in place, the payment amount may be increased or decreased under certain circumstances. Parents of minor children who go through a divorce have to come to an understanding to support the financial welfare of their children. This holds true even if they were never married, to begin with. Determining child support must come from a place of understanding, where the income of the custodial and noncustodial parent is understood amongst other factors. This, however, is not a hard and fast rule, and the modification of a child support order can be done upon comprehending the same. This modification, however, is not retroactive. This means that an individual who has fallen behind on payment after a job loss is still liable for the payment of those arrears unless they obtain the modification order.
Child support can be paid through multiple means, determined by the court during the case itself. It can include simple cash payments but can extend to health insurance for the child, child care, or healthcare costs not covered by insurance and is meant to support a child up to the age of 21 unless the child is ‘emancipated’ before this time. The modification of the child support order may be done by either parent This can be done if there has been a change in circumstances, three years have elapsed since the order, or that there has been an involuntary change in either party’s gross income.
What does each of these conditions mean?
A substantial change of circumstances is one of the reasons for a modification of the child support order. There can be a drastic increase in the costs surrounding the raising of a child, and this might take the parent paying child support unawares, especially if their employment cannot sustain these changes. Or there might be a change in the disability status of either parent or a decrease in their income.
There cannot be a tailored definition for a substantial change in circumstances, and the decision on a valid change will always lie in the hands of the court. A judge or a hearing officer will have to examine the pertinent facts of the case since it’s impossible to gauge what factors actually can have an impact on the arrangement between the parties.
The second acceptable condition for the modification of a child support order requires the parents to wait for three years to pass since the order was entered or last adjusted. After this period, either parent has the ability to request a modification (regardless of whether it’s an increase or decrease in the amount to be paid,) and the court can then revaluate the situation. Based on the current income of both the parties, the Basic Child Support income can be recalculated and adjusted to fit the new requirements. It must be noted here, however, that New York law specifically allows for a cost of living increase for child support orders, as long as the request is put forth two years after the entry of the existing order. Obviously, this is not applicable to a child who is qualified for government assistance, as they receive a cost of living adjustment without having either parent expressly asking for it.
Finally, the last condition is when there has been an involuntary change in either party’s gross income up or down by 15% or more since the order was entered, last modified, or adjusted. For this condition to be upheld, the order must have been made on or after October 13th, 2010. While the parent who has suffered the downsize in income can seek a modification of child support, the parents can enter into a binding agreement which states that those reasons won’t apply to their case. However, this agreement must have been incorporated into the erstwhile support order or divorce judgment as well as accepted by a judge
As mentioned before, the modification does not mean a retroactive change in the terms of child support and is only effective after the modification application has been filed. It is crucial to not take the onus of modifying child support upon oneself, as one can end up being held in contempt of court for flagrantly flouting the terms of the erstwhile order. If circumstances seem to be favorable towards changing the child support terms, the filing of a modification petition as quickly as possible seems like the only way ahead that is not riddled with the threat of state collection tools.
If the other parent has had absolutely no contact with New York, one cannot enforce the order through New York courts. However, a withholding order may be sent to the new state, which will specify the details of the support order and the amount to be withheld
[2.0] COST OF LIVING AMENDMENTS
It’s getting a lot more expensive to be alive. Consequently, the cost of living adjustments is created to understand child support. Every two years, an automatic review of the child support order is done in order to determine the same. The findings of this review will determine the increase in the amount of the child support order; if the cost of living increased by more than ten percent since the last review, there is a corresponding change in the order.
Any child support order paid through the support collection unit can receive this adjustment, provided that there exists a valid address for the collection unit to refer to. Additionally, this might not be the case if the person paying the child support received public assistance or social security insurance.
Every two years the child support agency automatically reviews each child support order to determine the cost of living increases. If the cost of living has increased by more than ten percent since the order was made or since the last review, the child support order amount will increase by the amount of the change in the cost of living.
This isn’t the only way to get a cost of living adjustment, however. A notice is sent to both parents if the case does not pertain to temporary assistance and qualifies for a cost of living adjustment, and either parent can request for the change. For cases where the custodial parent or child is on temporary or safety net assistance, the cost of living adjustment is automatically made when the case becomes eligible— without either parent requesting the adjustment.
[3.0] HOW TO FILE FOR A MODIFICATION PETITION
In order to file for a modification petition, one has to visit the family court of the issue and complete a Support Petition. This will result in obtaining form 4-11, alongside the provision of the name and address of the other parent, a copy of the support order, and the names, addresses, and birth dates of the children. If not, one can get the support petition for the modification form via email or through the Office of Court Administration Website.
It must be understood herein that one cannot get a modification of a child support order for a loss of employment that is [A.] voluntary or [B.] without good cause, as the Court is very likely to instead impute said income. This means that the general history of the individual’s income and what they’re capable of earning will be examined with job history, education, skills, and local employment opportunities, leaving the general amount of child support that needs to be paid roughly the same.
Furthermore, it is necessary to attend the requisite hearing, although Family Court may allow the noncustodial parent to appear at a hearing by telephone (also known as telephonic testimony). This is only in specific cases, wherein the parties are supposed to appear at their hearing but cannot because they do not reside in the county where the hearing is held or if traveling would cause undue hardship or if they were incarcerated. Telephonic testimony needs to have prior approval, however. Either way, at the hearing itself, it’s necessary to have [A] signed and notarized financial affidavit, [B.]recent pay stubs (or unemployment check stubs) [C.]most recent tax returns [D.] W-2’s [E.] Custody papers or documents to prove custody of the child if claiming a change in custody and [F.] information to prove your claim that the child has become emancipated
It must finally be noted that during the coronavirus pandemic, the protocol for court procedure changed with startling rapidness, and AO/78/20 did not list child support matters (and specifically downward modification petitions) as “essential” proceedings. However, child support is meant to provide financial security for the future of your child, and tampering with the regularity of payment can grossly effect that, even if the enforcement mechanisms don’t ensure regularity. Ultimately, irregular payment of child support in New York will see the taking of tax refunds, lottery winnings, suspension of one’s driver’s license, and seizing one’s bank account if the modification isn’t done appropriately.
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1.Rochelle Finzel, M. (n.d.). Retrieved September 24, 2020, from https://www.ncsl.org/research/human-services/enforcement-locating-a-noncustodial-parent.aspx
2.Family Court Act (FCA) §451(3)(a) and Domestic Relations Law (DRL) §236 Part B (9)(b)(2)(i)
3.FCA §451(3)(b)(i) and DRL §236 Part B (9)(b)(2)(ii)(A)
4.FCA §451(3)(b)(ii) and DRL §236 Part B (9)(b)(2)(ii)(B))
5.This is permitted under DRL – §240 1-b (h).
6.New York State Center for Child Well-Being. (n.d.). Child Support. Retrieved September 24, 2020, from https://www.childsupport.ny.gov/dcse/child_support_services.html