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EspañolBasic information about child support in New York.
What is child support? Who can file?
Child support is money that a parent pays for the care, maintenance and education of his/her unemancipated minor child under the age of 21, according to a court order or an agreement between the parties.1 Child support has to be paid until the child turns 26 if s/he:
- is developmentally disabled;
- lives with the person filing for child support; and
- is mainly dependent on the person filing for support.2
You can file for child support after a custody order is in place or without a custody order if your child lives with you. Note: If a non-parent is raising a child, such as a legal guardian or someone “in loco parentis,” s/he can file for child support against one or both parents.3
If you are filing against the child’s father, you must establish paternity first if it has not been established already. For information about how paternity is established, please see the section entitled What are some pros and cons of getting a custody order? Establishing paternity will legally establish the father’s rights to the child and so if this concerns you, you may want to consult an attorney before doing filing for support.
For more information about filing for child support in New York, please see NY Child Support Online on the NYS Division of Child Support Enforcement website.
1 NY Dom Rel Law § 236(B)(1)(f); NY Fam Ct Act § 413(1)(a) & (1)(b)(2)
2 NY Dom Rel Law § 240-d; NY Fam Ct Act § 413-b
3 NY Fam Ct Act § 422(a)
How much child support can I get?
Generally, a referee or support magistrate will be the person who is in charge of child support proceedings, not a judge.1 S/he almost always uses set guidelines in a child support obligation worksheet to determine how much support you will receive. If you would like to see all of the factors that go into determining support, you can visit the NY State Child Support website. The guidelines involve a complex formula - some of the factors involved are the parents’ incomes, your child’s needs and the custody arrangements regarding how often the child lives with each parent. To get a rough idea of how much support you may receive, you can visit AllLaw.com’s NY child support calculator.
When you file for child support in family court, you probably won’t begin receiving the support immediately. However, when a final support order is issued, you will receive a retroactive payment dating back to the date that you filed your petition so the sooner you file, the more you will receive in the end. To read more about child support in New York state, you can read a manual prepared by an organization called Her Justice. Note: WomensLaw is not affiliated with any of the above-mentioned websites.
1 See, generally, NY Fam Ct Act § 439
How will the amount of child support be decided if the other parent's income cannot be proven?
If a parent doesn’t show up to court or comes to court but fails to provide enough evidence to prove his/her gross income, the court will try estimate or guess what his/her gross income is. This is known as “attributing” or “imputing” income. When making this decision, the court will consider:
- the parent’s:
- assets;
- place of residence;
- employment and earning history;
- job skills;
- level of education;
- literacy;
- age;
- health;
- criminal record and other employment barriers; and
- record of seeking work;
- the local job market;
- the availability of employers willing to hire the parent;
- the typical amount of money earned by others (“prevailing earnings level”) in the local community;
- the age, number, needs, and care of the children covered by the child support order; and
- other relevant background factors.1
1 NY Fam Ct Act § 413(1)(k), (1)(b)(5)(iv)
Can a child support order be changed?
There are two basic ways to try to change (modify) a child support order after it is established:
- Either parent can prove that there has been a substantial change in circumstances.1 (Note: The incarceration of the paying parent might be a substantial change in circumstances that could be a reason for modifying the child support order unless it is due to nonpayment of child support or a criminal offense against you or the child being supported);2 or
- Either parent can file without a substantial change in circumstances if:
- three years have passed since the order was entered or last modified; or
- there has been a change in either parent’s gross income by 15% or more since the order was entered or modified. (However, if there is a reduction in a parent’s income, this will only be considered if it was involuntary and the parent has made thorough attempts to get a job that pays according to his/her education, ability, and experience.)3
Even if the judge modifies the child support order, this will not reduce or erase any overdue payments (arrears) that have accumulated before the parent filed the modification petition. The unpaid payments will still have to be paid.4
1 NY Dom Rel § 236(B)(7)(d)
2 NY Fam Ct Act § 451(3)(a); NY Dom Rel Law § 236(B)(2)(i)
3 NY Fam Ct Act § 451(3)(b); NY Dom Rel Law § 236(B)(2)(ii)
4 NY Dom Rel Law § 236(B)(2)(iii)
