Modifying a Child Support Order in New York

In New York, child support is money that a noncustodial parent pays to the custodial for the care of a child until the child reaches the age of 18. If the parents share joint custody and spend roughly the same amount of time with the child, the “noncustodial” parent is deemed to be the parent who makes more money. That parent would be required to pay child support. The amount of child support required is a percentage of the noncustodial parent’s income. That amount will remain the same regardless of changes in the finances or other circumstances of the parents, unless a parent petitions the court for a child support modification. The court will only grant a modification if there has been a substantial change in circumstances from the time of the original order. Whether your receive child support or pay child support, if you believe that you are entitled to a modification in the child support order, contact an experienced New York child support modification lawyer at the Law Offices of Stephen Bilkis & Associates. We understand the evidence that is required to support a child support modification.

In New York child support can be ordered by the Supreme Court as part of a divorce proceeding, ordered by Family Court pursuant to a petition, or pursuant to a written agreement by the parents.

When ordered by the court, child support is based on the parents’ income and the number of children from the relationship who are under the age of 21, unmarried, and unemancipated. Under Dom. Rel. Law § 240, the basic support obligation is determined as follows:

• 1 child: 17% of combined income
• 2 children: 25% of combined income
• 3 children: 29% of combined income
• 4 children: 31% of combined income
• 5 or more children: at least 35% of combined income

In addition to the court ordering the noncustodial parent to pay the basic support amount, the court can order the parent to also pay additional amounts such as medical insurance or school fees.

Either the custodial parent who receives child support can petition Family Court for a modification—usually an increase, or the noncustodial parent who pays child support can petition Family Court for a change--- usually a decrease. In either case, there are 2 things that the petitioner must show. First, the petitioner must show that there has been a substantial change in circumstances. Second, 3 years must have passed since the order was issued, or there must have been at least a 15% increase or decrease in either parent’s income since the original order was issued.

The court has held that for there to be a substantial change in circumstances, the petitioner must show that under the current order, the child’s needs are not being met, there has been an unforeseen change in circumstances, and that the child support agreement was unfair when it was made. As an experienced New York child support modification lawyer will explain, not only must the petitioner allege the basis for a child support modification, the petitioner must also provide evidence to support the basis.

When it comes to changed circumstances, the law requires that the changed circumstances must be “unforeseen.” For example, in Zenz v. Zenz, 260 A.D.2d 494 (N.Y. App. Div. 1999), the petitioner’s request for a child support modification was denied because the items the petitioner listed as changed circumstances either existed at the time of the original order or could have been reasonably anticipated. The court has also found that the plaintiff remarrying and having a child with his new wife was not a sufficient, unanticipated change in circumstances to justify a downward modification in child support. Gusler v. Gusler, 583 N.Y.S.2d 609 (N.Y. App. Div. 1992)

To prove changed circumstances, the court has a high standard of proof. It is recommended that you discuss your case with an experienced New York child support modification lawyer who understands what would constitute a change in circumstances and what proof would be necessary to support the stated change.

Under New York law, you can request a child support modification if there is a 15% change either parent’s income. While typically the court will entertain a child support modification only after at least 3 years has passed since the order was entered, the exception is for a 15% change in income.

One of the common reasons that noncustodial parents petition the court for a downward modification is due to a loss of employment. While that is a valid reason, there are caveats. The loss of employment must be due to no fault of the petitioner, and the petitioner must have made an effort to find new employment. In the absence of these to conditions, the court will not grant a child support modification. Instead it will impute income to the petitioner and he or she will be required to continue to pay the same amount. The court will not allow parents to avoid their obligations to financially support their children by quitting their jobs or refusing to work.

Keep in mind that child support and visitation are separate. A noncustodial parent’s right to visitation separate from the noncustodial parent’s obligation are two different issues. A custodial parent does not have the right to prevent the noncustodial parent from access to the child simply because the noncustodial parent is behind on child support payments. If the noncustodial parent is behind in child support payments, discuss with an experienced child support modification attorney in New York appropriate strategies for enforcing the child support order. The consequences of not paying child support include withholding tax refunds, garnishing wages, property seizure, revoking driver’s license, and suspending a business license. In addition, those with significant child support arrears can be jailed.

If the custodial parent intentionally interferes with the noncustodial parent’s access to the child, the noncustodial parent does not have the right to stop paying child support. The noncustodial parent does have the right to file a petition with Family Court for enforcement of a visitation order. The court does have to right to suspend the noncustodial parent’s obligation to pay child support if it is demonstrated that the custodial parent has a pattern of intentionally interfering with the noncustodial parent’s access to the child.

If you believe that there are grounds for a child support modification, the experienced child support modification attorneys serving New York at the Law Offices of Stephen Bilkis & Associates can help. We handle matters related to child custody and child support, including petitions for child support and child support modifications. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your divorce. We represent clients in the following locations: Nassau County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, Suffolk County, and Westchester County.