“They are Still His or Her Children” – Child Support in New York State

By: Jeffrey L. Drimer, Esq.

One parent is gone; out of your residence. One parent remains with the children. The household now must adjust to existing on one income (in some cases none), instead of two. What does a parent do if the other parent who has left the household does not provide financial support for the children? (For the purposes of this article, let us assume that the mother is the custodial parent and the father is the non-custodial parent; but, if your situation is reversed the information related is still true).

Both parents are required to support their children until they are 21 years old unless the child(ren) becomes emancipated. If you are the custodial parent, you are entitled to “child support”. If you and the children’s father are not married, you can also still get this support. If you are living with the child’s father and he is not helping with the bills, you can get child support.  (For the purpose of this article, “Paternity” is assumed). If both parents have legal custody of a child, child support will go to the custodial parent. If the arrangement is for joint physical custody, the child support will be paid to the parent who has the child most of the time. If it is equal time, the Court will determine the support obligation.

The process of getting the issue of child support before the Court is relatively simple. Depending on your personal circumstances you may want to retain an attorney to help you.  If you are proceeding Pro Se (without a lawyer) in OnondagaCounty, go to the Family Court Clerk’s Office on the first floor of the CountyCourthouse.   There you will be given a Petition and a detailed instruction sheet telling you how to fill out the forms. When you finalize the forms you will file them with the Clerk’s Office. Be sure to ask whether it is your responsibility to serve the Petition on the other parent or whether the Court will do it through the Sheriff’s office. The Clerk can instruct you on the rules for proper service of the Petition.

Your case will then be assigned to a Family Court Support Magistrate who has the same authority on support issues as a Family Court Judge. The Clerk of the Court will probably give you a Financial Disclosure Affidavit. You should fill this out as carefully as you can and sign it in front of a Notary Public. If you have a previous Family Court Support Order or a Divorce Decree, you should be prepared to bring that to Court as well. You should be prepared to prove your children’s health care costs and your child care expenses. The Magistrate will also be interested in any special medical expenses or costs that you have relative to your children. You should make copies of all of these types of bills to submit to the Court.

If the non-custodial parent lives out of state, you should be sure to mention this circumstance to the Clerk. A Child Support order is still possible. It is just a little more complicated. If the non-custodial parent does not show up in Court, an Order can still be granted.

Your primary concern at this point is probably “How much will I receive?” The amount will be calculated in accordance with the Child Support Standards Act. This will be a percentage of the non-custodial parent’s gross income minus certain deductions (Social Security and Medicaid taxes).  The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. If the non-custodial parent has health insurance available through their work, they could be ordered to provide it for the child(ren) and to pay a pro-rata share of unreimbursed health care expenses. The obligation to pay child support usually begins when the Petition is filed with the Court.

I am sure that you probably have many more questions. For example: 1. What if the non-custodial parent has remarried?  2. What if the non-custodial parent has other children? 3. What if the non-custodial parent refuses to pay? 4. Can visitation issues be addressed?

If you are the noncustodial parent, you should still show up for Court and you should fill out your Financial Disclosure Affidavit. Bring your most recent Tax Return, Form W2, and 1099s. In addition, bring your most recent pay stub to help substantiate your current income.

My advice is usually the same—you should (if you can afford it) get the assistance of an experienced Family Court/Matrimonial Lawyer to help you in the process. Just because the process can be completed without a lawyer doesn’t mean that you shouldn’t have one representing your interests. Finally, you should not feel guilty about forcing this issue.Your child(ren) is still the responsibility of the other parent even though he or she may not be living in the household. They need to be cared for and supported regardless of the current living arrangement and you should not be alone in paying for their daily support. Therefore, trust the system to provide you with a fair and equitable Child Support order. It may take some time and effort but it is the right thing to do.