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Child Support

In New York State, parents are legally responsible to support their children until they turn 21.

However, child support is not paid if the child is emancipated, which includes a child who is under 21 years old but is married, in the military or has sufficient income to be entirely self-supporting. When a couple with children no longer reside together, one parent will be considered the "custodial parent" for child support purposes. [For more information regarding legal custody, residential custody and visitation/parenting time, click here.] Although both parents have an obligation to support their children until they are emancipated, the non-custodial parent is obligated make support payments to the custodial parent in accordance with the Child Support Standards Act.

According to the Child Support Standards Act, basic child support in New York is paid by the non-custodial parent (the “payor”) to the custodial parent (the “payee”) based upon the payor's pro-rata share of the parents' combined income. For one child, it is 17%; for two children, 25%; for three children, 29%; for four children, 31%; and, for five or more children, it is no less than 35%.

The non-custodial/payor parent's pro-rata share that is awarded by the court is called the Basic Child Support Obligation (BCSO). However, if the court finds the BCSO calculated by using the CSSA is “unjust or inappropriate,” it may modify the BCSO based upon one, or a combination, of ten factors listed in the Domestic Relations Law of the Family Court Act. The court may then order the non-custodial parent to pay an amount that deviates from the BCSO and that the court finds “just and appropriate.” If the court issues an order that deviates from the BCSO, it must also issue a written decision explaining the factors the court considered in coming to that conclusion.

In making the calculation, the Basic Child Support Obligation (BCSO) is always calculated up to a combined income cap that changes each year. In 2022, the cap is $163,000. Where the combined income is above the cap, the law permits, but does not require, additional support to be paid at the same percentages. The court will make that determination.

Parents can enter into written agreements setting forth the amount of the BCSO that deviates from the CSSA. In those instances, the agreement must recite the calculations in accordance with CSSA, that the agreement deviates from the CSSA amount and it must include the agreed-upon amount of child support. The agreement must contain all the required recitations and elements and be executed in accordance with the formalities required by law concerning these types of agreements or it may be found invalid.

Beyond the Basic Child Support Obligation, a non-custodial parent may also be obligated to pay certain other expenses: a pro-rata share of medical insurance costs; unreimbursed medical expenses, such as copays and deductibles; reasonable child care costs so that the custodial parent can work; and, life insurance on the life of the payor until the child support obligation terminates, are all examples of such “add-on” expenses.

They may also court award educational expenses if it determines that it is in the best interests of the child to attend post-secondary, private, special, or enriched educational programs. This may include college expenses. The non-custodial parent will have to pay these expenses as determined by the court, including by direct payment to the educational provider, rather than to the custodial parent.

Although child support at its core begins as a formula, there are many factors that allow for downward deviation from that formula and whether a court will order support above the cap, and for how much. It is always advisable to consult with a qualified attorney who can navigate through the issues and explain your rights. Please call our office if you would like to make an appointment.

Developmentally Disabled Children

There is one other category of child support that merits mention. In 2021, the New York legislature passed and the governor signed, a new provision of law authorizing the extension or initiation of child support for people over 21 years old who have not reached their 26th birthday. This is only authorized in limited circumstances where the person is developmentally disabled as determined under the Mental Hygiene Law (with a properly established diagnosis), resides with the person seeking support and is principally dependent on that person for support. In addition, when the court seeks to determine support under this provision, it may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent.

This is a new area that had never been in place in New York before 2021. If you and your family may be affected by this new law, it is advisable to consult with a qualified attorney to determine your rights and obligations. Please call our office to make an appointment.

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