Know Your Rights About Child Support

  1. Who can seek child support?

    Usually, the custodial parent seeks child support from the non-custodial parent. The “custodial parent” is the parent with whom the child primarily resides. The custodial parent will have to demonstrate that the non-custodial parent is the parent of the child. In most circumstances, this will be proven by showing the non-custodial parent signed an “acknowledgment of paternity” form or by proving that the child was born during the marriage of the custodial and non-custodial parent.

    In Family Court, the person who files the case is called the “petitioner.” The person against whom the case is filed is called the “respondent.”

  2. Where can I seek child support?

    You can seek child support in Family Court. There is no charge to file a petition in Family Court. Also, if you are married to the parent of the child, you can seek child support as part of your divorce in Supreme Court.

  3. How is child support determined in New York State?

    Courts must consider “child support guidelines” when awarding child support. These guidelines, which are called the “Child Support Standards Act” (“CSSA”), provide for a child support award based upon a percentage of combined gross income of both parents. The child support is paid by the non-custodial parent to the custodial parent. the child support guidelines automatically apply to the first $130,000 of combined parental income and presumptively apply to combined income over this amount.

  4. What are the amounts in the child support guidelines?

    The guidelines include percentages to determine the presumptive basic child support obligation based on number of children:

    • 17% for one child
    • 25% for two
    • 29% for three
    • 31% for four
    • 35% for five or more children

    In addition, amounts to be paid for childcare, medical, and educational expenses are treated separately, and are added to the basic child support obligation.

    The amount calculated following the guidelines is the amount that the court shall presume is the correct amount of child support. However, the parties can opt-out of this amount by entering into a separate agreement, provided the parties are advised of the provisions of the CSSA and the agreement explains why the parents have agreed to deviate from the guidelines.

  5. What happens if the non-custodial parent is unemployed, very low-income, or on public assistance or SSI?

    If the non-custodial parent’s income is at or below the poverty guidelines, the presumptive obligation is $25 monthly.

    The court is authorized to require a non-custodial parent to seek employment or work training, if unemployed at the time the support order is established, unless the parent is in receipt of SSI or SSD.

  6. How long does child support last?

    In New York, parents are obligated to support their child until the child is 21 years old or sooner emancipated. Only courts can determine whether a child is emancipated, taking into account factors such as whether the child is married, has voluntarily abandoned the parent’s home, or is substantially self-supporting from full-time employment, among other situations. Absent the fairly unusual circumstance of a court determining that a child is emancipated, the obligation to support a dependent child until he or she is 21 applies, even though a “child” is legally an adult at 18.

  7. What if I have a child support order but am incarcerated?

    You should file a modification petition in Family Court. Incarceration is not a bar to filing a downward modification petition except where the incarceration is the result of non-payment of a child support order or offense against the custodial parent or child who is the subject of the order or judgment.

  8. May I receive child support if I receive cash public assistance?

    Maybe. Child support is countable income for public assistance purposes, and you must report all child support you receive to public assistance and have it budgeted into your welfare case. If you have an award of child support, the child support should go to the Department of Social Services, which is the part of government that administers public assistance (in New York City, this agency is called the Human Resources Administration), for so long as you receive cash public assistance. However, up to the first $200 of child support received each month should be returned to you in your cash public assistance case as the “child support pass-through.” It is also possible that your child support will make you ineligible for cash public assistance, including FEPS, if your child support award exceeds your cash public assistance grant.

    Also, if you apply for or receive public assistance and do not presently receive child support pursuant to a court order, public assistance may require you to cooperate in the government’s bringing a case against the non-custodial parent for child support, with such amounts going to the Human Resources Administration for so long as you receive cash public assistance. You may ask for a waiver of this requirement if you believe that you or your family will be in danger, such as domestic violence or intimate partner violence, as a result of the government’s pursuing child support from the non-custodial parent.

  9. How will I receive child support?

    Unless you receive cash public assistance, you can elect to receive child support directly from the non-custodial parent, such as by check or money order. This is sometimes called “direct pay.” You can also choose to have child support go through the State’s Office of Child Support Enforcement Support Collection Unit (“SCU”). You will have to open an account with SCU (which have offices in each Family Court in New York City). SCU then collects the support owed from the non-custodial parent and sends it to the custodial parent. SCU keeps track of all payments collected and sent, which can be helpful evidence if the non-custodial parent fails to make payments. If you are currently in receipt of public assistance, child support payments must go through the SCU.

  10. Can the amount of a child support order be changed?

    Yes. Typically, you would file a petition to modify child support in Family Court. You have the right to seek a modification of the child support order upon showing that (1) there has been a substantial change of circumstances; (2) three years have passed since the order was entered, last modified, or adjusted; or (3) there has been a change in either party’s gross income by 15% or more since the order was entered, last modified, or adjusted. You can agree to opt out of your right to seek a modification in a validly executed agreement or stipulation for (2) or (3), but you retain the right to seek a modification for a substantial change of circumstances.

  11. Am I entitled to have an attorney in child support proceedings?

    Yes. You are entitled to have an attorney and can request an adjournment to seek counsel. However, the courts cannot appoint attorneys for child support matters at no charge to you. If you are on public assistance and welfare is seeking child support on your behalf, the attorneys for public assistance appear on the case in the special part in Manhattan designated for child support for people receiving public assistance.

  12. Are family law related court files confidential?

    Family Court and Supreme Court matrimonial files are confidential. Only parties, their attorneys, or someone with a written authorization signed by a party may have access to them.

(August 2013)