New York Child Support

• to annul a marriage or to declare the nullity of a void marriage, or
• for a separation, or
• for a divorce, or
• to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support.

Child support is defined as a sum paid either by court order or by a valid agreement between the parents for care, maintenance and education of any unemancipated child under the age of twenty-one years. See DRL §240[1-b][b][2]. Child support is generally set pursuant a mathematical formula to the CSSA. The statute defines "basic" child support as the outcome of a mathematical formula set forth in guidelines, subject to increase on the basis of various factors, including health care, child care and educational, the latter commonly referred to as "add-on" expenses. See DRL § 240[1-b][b][1].

CHILD SUPPORT PERCENTAGE ARE AS FOLLOWS:

• 17% of the combined parental income for one child;
• 25% of the combined parental income for two children;
• 29% of the combined parental income for three children;
• 31% of the combined parental income for four children; and
• no less than 35% of the combined parental income for five or more children.

INCOME INCLUDES, BUT IS NOT LIMITED TO THE FOLLOWING:

• gross (total) income as should have been or should be reported in the most recent federal income tax return;
• investment income reduced by sums expended in connection with such investment;
• the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
  (A) workers' compensation,
  (B) disability benefits,
  (C) unemployment insurance benefits,
  (D) social security benefits,
  (E) veterans benefits,
  (F) pensions and retirement benefits,
  (G) fellowships and stipends, and
  (H) annuity payments;
• at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
  (A) non-income producing assets,
  (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits,
  (C) fringe benefits provided as part of compensation for employment, and
  (D) money, goods, or services provided by relatives and friends;

• an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child Support, See e.g. Kay v. kay 37 N.Y.2d 632, 376 N.Y.S.2d 443 (1975); Brodsky v. Brodsky, 214 A.D.2d 599, 624 N.Y.S.2d 960 (2nd Dep’t 1995).
• to the extent not already included in gross income listed above, the following self-employment deductions attributable to self-employment carried on by the taxpayer:
  (A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and
  (B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures;
  

The following are be deducted from income prior to applying the child support percentage:

• unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,
• alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
• alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, provided the order or agreement provides for a specific adjustment, in the amount of child support payable upon the termination of alimony or maintenance to such spouse,
• child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,
  (E) public assistance,
• supplemental security income,
• New York city or Yonkers income or earnings taxes actually paid, and
• federal insurance contributions act (FICA) taxes actually paid.
  

EXTRAORDINARY SOURCES OF INCOME

Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources, the court may allocate a proportion of the extraordinary income to child support from sources including but not limited to:

• Life insurance policies;
• Discharges of indebtedness;
• Recovery of bad debts and delinquency amounts;
• Gifts and inheritances; and
• Lottery winnings,

POVERTY INCOME GUIDELINE AND SELF-SUPPORT RESERVE

If the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person, the basic child support obligation is twenty-five dollars ($25) per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater.

If the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person, the basic child support obligation is fifty dollars ($50) per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater.

Self-support reserve is defined as one hundred thirty-five percent of the poverty income guidelines amount for a single person as reported by the federal department of health and human services. On March first of each year, the self-support reserve is revised to reflect the annual updating of the poverty income guidelines as reported by the federal department of health and human services for a single person household.

CHILD SUPPORT MUST BE JUST AND APPROPRIATE UNDER THE CIRCUMSTANCES

In determining whether the non-custodial parent's pro-rata share of the basic child support obligation is unjust or inappropriate, the court must consider the following factors:

• The financial resources of the custodial and non- custodial parent, and those of the child;
• The physical and emotional health of the child and his/her special needs and aptitudes;
• The standard of living the child would have enjoyed had the marriage or household not been dissolved;
• The tax consequences to the parties;
• The non-monetary contributions that the parents will make toward the care and well-being of the child;
• The educational needs of either parent;
• A determination that the gross income of one parent is substantially less than the other parent's gross income;
• The needs of the children of the non-custodial parent for whom the non- custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
• Provided that the child is not on public assistance
  (i) extraordinary expenses incurred by the non-
  custodial parent in exercising visitation, 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; and
• Any other factors the court determines are relevant in each case.

INCOME IN EXCESS OF $80,000 PER ANNUM

Under the CSSA application of the statutory formula is mandatory only up to $80,000 of combined parental income. See Cassano v. Cassano, 85 N.Y.2d 649, 628 N.Y.S.2d 10 (1995). In Cassano, the Court of Appeals stated that as to combined parental income over $80,000, the statute explicitly affords courts the discretion to apply the factors set forth in section 413(1)(f) "and/or the child support percentage." See F.C.A. § 413[1][c][3]. In the courts analysis, "and/or" should be read to afford courts the discretion to apply the "paragraph (f)" factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000. Also relevant to income above $80,000 is the provision that the court may disregard the formula if "unjust or inappropriate" but in that event, the court must give its reasons in a formal written order, which cannot be waived by either party. See F.C.A. § 413 [1][g].

CHILD CARE, EDUCATIONAL AND HEALTH CARE EXPENSES, A/K/A ADD-ON

The basic child support obligation may be increased by obligations of child care, educational and health care expenses. See DRL § 240 [1-b][b][1].

With regard to the payment of future reasonable medical expenses not covered by insurance, See DRL § 240[1-b][c][5] and/or reasonable child care expenses, See DRL §240[1-b][c][6], two observations must be made.

First, such additions are appropriate only when the noncustodial parent's basic child support obligation has been calculated pursuant to DRL §240[1-b][c] and not when support has been fixed in accordance with §240[1-b][g); in other words, such additions are improper where it has been determined that the amount of support presumptively due under the statute is unjust or inappropriate. See Callen v. Callen, 287 A.D.2d 818, 731 N.Y.S.2d 772 (3d Dep’t 2001).

Second, the court has the discretion to order the noncustodial parent to pay a percentage other than his or her pro rata share of uncovered medical expenses and/or child care expenses, provided the court adequately articulates the basis for such deviation. See Gentner v. Gentner, 289 A.D.2d 886, 736 N.Y.S.2d 431(3 Dep’t 2001).

CHILD CARE EXPENSES

As mentioned above child support consist of two distinct factors: (a) basic child support; and additional expenses not encompassed in the basic child support, “add on” expenses.

Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment, and incurs child care expenses as a result, the court must determine reasonable child care expenses, and apportioned it in the same proportion as each parent's income is to the combined parental income. Each parent's pro rata share of the child care expenses shall be separately stated and added to the basic child support obligation. See DRL § 240 [1-b][c][4].

However, where the court determines that the custodial parent is seeking work and incurs child care expenses as a result, the court may determine reasonable child care expenses and may apportion the same between the custodial and non-custodial parent. The non-custodial parent's share of such expenses must be separately stated and paid in a manner determined by the court. See DRL § 240 [1-b][c][6]. This situation is different from when the custodial parent is working or receiving educational training. Here, the parent is not working and the award of child care is discretionary and not mandatory.

If child care expenses ceases or changes the no custodial parent should made an application for a downward modification of child support.

HEALTH CARE EXPENSES

The court must prorate each parent's share of future reasonable health care expenses of the child not covered by insurance in the same proportion as each parent's income is to the combined parental income. The non-custodial parent's pro rata share of such health care expenses shall be paid in a manner determined by the court, including direct payment to the health care provider. See DRL § 240 [1-b][c][5].

EDUCATIONAL EXPENSES

Where the court determines in the best interests of the child that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The court may require the non-custodial parent to pay educational expenses, directly to the custodial parent or directly to educational provider. See DRL § 240 (1-b)(c )(7). Educational expenses include but is not limited to

Generally the court does not order the payment of college expenses while children are still young because the court must assess the child's abilities, interests, and needs, as well as the parents' ability to pay the expected costs. Consequently, the court does not order a parent to set aside money for college. See Friedman v. Friedman, 216 A.D.2d 204, 629 N.Y.S.2d 221 (1st Dep’t 1995); Gilkes v. Gilkes, 150 A.D.2d 200, 540 N.Y.S.2d 808 (1st Dep’t 1989).

Where a parent is paying child support in addition to for room and board while a child attends college away from home, the noncustodial parent may be entitled to a credit or offset for one payment against the other. This is because the custodial parents expenses are reduced when the child is away at college and the college room and board are being paid in part by the noncustodial parent. See Jablonski v. Jablonski, 275 A.D.2d 692, 713 N.Y.S.2d 184 (2nd Dep’t 2000); Reinisch v. Reinisch, 226 A.D.2d 615, 641 N.Y.S.2d 393 (2nd Dep’t 1993).

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