Modifying Your New York Child Support
Where the court has entered an order of child support or co-parents have properly memorialized a child support agreement in writing, its terms will remain in place until the children emancipate or one of the parties requests a modification. A modification is a request to change the terms of the child support order or agreement. In today’s article I discuss how an application for a modification of child support can be made in the New York Court system.
Who Can Request a Modification of Child Support?
Either parent may request a change to the terms of the child support order or agreement. The custodial parent (payee) may request an upward modification of child support, asking that the court increase the child support award. A noncustodial parent (payor) may request a downward modification of child support, asking that the court decrease the child support award.
Where is a Request For a Modification of Child Support Made?
If the original child support order/agreement was made through a divorce in the Supreme Court it may be made in the Supreme Court as a post-judgment motion or order to show cause. It may also be made as a petition for modification in the family court, if the parties’ agreement allows. If the original child support order/agreement was made through the family court and no divorce matter is pending, the appropriate place to file a petition for modification of child support is in the family court.
Depending on the terms set forth in the parties’ Stipulation of Settlement (Settlement Agreement) regarding jurisdiction, the request for child support modification may be made in the county where the original proceedings took place or where the payor (non-custodial parent) resides. If the parties’ agreement or child support order is silent about jurisdiction the request for modification should be made in the county where the payor (non-custodial) parent resides. In the event that the payor has moved out-of-state since the original order was entered, the person making the application for child support modification may first be required to register the out-of-state before being permitted to file their application for a modification of child support.
How Soon After Child Support is Ordered Can it Be Modified?
An application or petition for a modification of a child support award can be modified as soon as one of the following criteria are met. It may be three months after the initial child support order or three years, depending on the circumstances.
In order to request a child support modification, a period of at least three (3) years must have passed since the child support order or child support agreement was entered; OR, if there has been an increase or decrease in either parties’ income by at least fifteen (15%) percent/the custodial parent’s expenses have increased by at least ten (10%); OR there has been a significant change in circumstances the court will allow for the parties to revisit the amount of child support under the order or agreement.
Does an Increase in the Expenses of the Non-Custodial Parent (Payor) Matter?
While there may be specific instances where the court will take increased expenses into account when determining if a non-custodial parent or payor is entitled to a modification of child support, for the most part this is not the case. That’s because most expenses are generally within our own control. For example, a person is capable of budgeting their rent, mortgage and car payments. If there is sudden an increase in those expenses, the change would be considered discretionary. The court’s position is that supporting a child is a parent’s most important financial obligation. In the event that there are unforeseen expenses, for example, medical needs, the basis for a child support modification would more likely fall under the category of “significant change in circumstances.
What Does the Court Consider a Significant Change in Circumstance?
When it comes to a request for a modification of child support, a significant change in circumstance involves something that could not have been foreseen at the time that the original child support order or agreement was made. For example, if one of the parties becomes ill or is injured and can no longer earn in the same way he or she could at the time that the child support numbers were originally calculated, that would be considered a significant change in circumstance. The birth of another child would not be considered a significant change in circumstance because a party could have reasonably foreseen the possibility of future children and is within the discretion of the parties. The court generally takes the position that if a person did not have the resources to care for their first child or children, it is not reasonable or appropriate for him or her to have more children.
Do I Make a Request for Modification of Child Support if I am Trying to End My Support Obligation?
No. In the event that you believe your child support obligation should end, the appropriate remedy is to file an application to terminate child support. There are only two ways that a child support obligation may be terminated. In the event that a person’s parental rights are officially terminated he or she will no longer have a legal obligation to support the child.
A termination of parental rights is not done lightly. It generally occurs only after the court determines that a parent is a significant danger to a child through an ACS abuse and/or neglect proceeding. The court may terminate a person’s parental rights, freeing the child to be adopted. Parental rights may also be terminated in instances where a step-parent seeks to adopt the child or children and assume the rights and responsibilities of a legal parent. The courts will not terminate parental rights simply because a person does not want to be involved in his or her children’s lives.
A parent may also terminate his or her child support obligation if the child is considered emancipated. In New York, emancipation is normally upon the child’s 21st birthday. Oftentimes, orders do not automatically end and a party must file an application immediately after the child’s birthday to avoid incurring further child support obligations. A child may also be considered emancipated prior to his or her 21st birthday if not enrolled in college and self-supporting, working full-time or married.