You are here

Child Support trial in New York state

tryingmybestatthis's picture
Forums: 

So my SO is headed to "trial" in NYS family court for chid support. Her and her ex have been divorced for nearly 4 years. Long story short, he took a lower amount payout on the refi of their residence. And, because of this he got 2 1/2 years of relief from paying child support. It was a good move for both of them. Now, its time for him to begin paying child support. Of course he says he cant pay, doesnt have any money, etc... 

She had a court date in November with the Support Magistrate. Her ex asked for and was given a delay (I know thats not the legal term) so he could consult an attorney. Today was the 2nd court date and he didnt show. The Magistrate is sending him a default letter and has scheduled a trial date for April. The Magistrate told my SO she could bring witnesses and all necessary/required paperwork, proof, etc (W2's, paystubs, proof of insurance)

The kids are 17 & 14 and spend no time with their father. He was verbally and emotionally abusive to them and mom for years and continues to have no real responsibility in their lives. Their divorce agreement gives joint custody but he always made excuses why he could pick up on his time, etc.... I know this doesnt affect child support responsibilities, but I just wanted to mention.

Any advice from folks who have been through support trial in NYS? What type of witnesses should she bring? Should she consult attorney?

 

 

 

tog redux's picture

She has a vagina. She will win.

Source: Live in NYS and my DH now has to pay 1000K + per month for a lazy 19-year-old, despite BM agreeing to never seek an increase.

STaround's picture

Not certain why magistrate is asking for HER w-2s, if she has custody, not relevant.  I suspect magistrate just sent her a laundry list. 

Unless he has a high powered attorney, I dont think she needs one.  if she hs any information regarding where he works, any property he owns, where he lives, she needs to bring that.  

tog redux's picture

w-2s are part of a custody trial in NY, for both sides.

If they make a combined income over 136,000 it gets calculated differently.  She should provide whatever the magistrate wants.

But she could show up half-drunk wearing her pajamas with three dogs in tow and she will win, so don't stress too much, OP.

Winterglow's picture

^^This ^^, plus it might not be a bad idea to have the child support taken directly from his paycheck.

tryingmybestatthis's picture

Thanks for the comments. She's just very concerned about the word "trial" and she doesnt know what witnesses to bring or why she needs them. She had all required paperwork ready for the Magistrate today and he no showed. She makes quite a bit more than him, and provides very nicely for them, although she stretches herself VERY thin. He doesnt make much, but any extra she gets she wants for college, oldest kids car repairs, etc... 

Goodluck's picture

You may want to check your state law on college. The kid should get a job and pay his/her part AND apply for as many scholarships as possible. OR go into the service for a free college education, 3 squares and a cot.

 Please keep us posted and Goodluck with everything.

tog redux's picture

OMG - we just went through this a month ago, will you stop arguing that you are right?? BOTH parties have to submit their W-2s!!

OP, if their combined income is more than 136,000, they take whatever percentage of that (17% for one kid, 25% for two kids, etc), and they prorate that based on income.

If he doesn't show, she will win by default and they will calculate based on any info they have on him.

tog redux's picture

They will go based on any info they have on him or she can provide, as another poster said.

But her income matters too.  It's not just the NCP who has to provide income information in NY.

STaround's picture

But you keep ignoring that he is not responding to the court.   We dont know what he earns, and neither does the court.

She need sto spend more time trying to track down his employer, his title, etc. 

tog redux's picture

Your original comment was that she should not have to give her W-2 because she has custody, and you were wrong.

That is that.

Good day.

STaround's picture

And as you said, depends on her income.

Bigger issue is HIS W-2s.  

tryingmybestatthis's picture

Again, thanks guys! He is just trying to make this as difficult on her as possible. She knows where he works and where he lives. You are right, both incomes matter in NY. She is aware of all of that. She has her documentation ready to go. I feel he is dragging this out as long as possible in hopes that she will say forget it and give up. Shh's not going to do that.

He will probably show up at the trial knowing the severity of it, whether or not he is prepared will be another thing. 

What is the difference between between a trial and what she went to today? Why the need for witnesses?

tog redux's picture

My DH had a hearing, not sure if that's a trial. They sat in there for an hour and went back and forth on the issues, and of course, he lost.

Frankly, she should get an attorney, he/she can advise her on all of this. 

She will win, though, she just has to hang in there.

STaround's picture

Does not means she will collect anything.  If he does not work on the books, she may not get anything.  

Survivingstephell's picture

NY is a 21 state so she could collect for longer.  I'd have her find out where he works and have her lawyer supena them for any info if that's legal.  Sounds like she will have to do some snooping on her own if he is unwilling to play htis game  on his own.  Any documentation she has on past income might be used to set his amount of CS.  The more she can find out and present on his economic situtation, the better.  

I had to do this with my ex.  

Rags's picture

I recommend that you and DW get on the NYS online CS support calculator and run the numbers to see what the likely outcome will be.  

BioDad is delaying.  The kids are old enough that the longer he stalls the less he will pay over what is even now a relatively short time.

Yes, get a lawyer and drive the hearing to close ASAP.  Don't let your DW's X control the situation. Your DW needs to control it.  I believe that NYS uses a verson of the Income Shares model which factors the total income of both bioparents against the parenting time each parent has with the child(ren).  Even when the CP makes substantially more than the NCP this model can assign a large CS obligation to the NCP if the NCP does not have the kids often.

Your DW has many advantages as both the CP and the BM.  In the situation you described she needs to have confidence that she is the one with the advantages and she needs to leverage those advantages fully in the best interests of her children.

NYS or not, DW should bring full financial information for herself and her X.  Their most recent joint tax return will help establish his income potential if he no-shows or fails to bring accurate information.  She should also bring their divorce decree, police reports on his abuse of her and the kids, etc, etc, etc.....

For sure she should motion for direct payroll withholding of the NCP's  CS obligation. This minimizes any games he can play. If he is working, he is paying.  If he quits his job to avoid CS that does not aleve his CS responsibility. It just drives arrears, penalties and interest that your DW can smack him for later.

All IMHO of course.

Good luck.

tog redux's picture

No - NCP pays full support in New York regardless of how much parenting time. 50/50 - still pays full support.

Rags's picture

And what exactly is "full support"?  Support is derived from a formula in Income Shares model states.  The Judge  has significant leaway to make adjustments but as far as I know, there is no state that defines "full support".

tog redux's picture

17% for one kid, 25% for two, of his income if it's below a combined income of 136000.

If above, they take 17% or 25% of that total and divide it prorated by the two parties' income.

The NCP pays that in entirety regardless of how much time he or she sees the child.  I'm not sure what you mean by "no one defines full support".  Of course they do. You pay 17% of your gross income, period, for one child, regardless of how much you see that kid. That is full support.

Then you throw in helping with health insurance, paying for extracurriculars and medical expenses. NCP has kid 50% of the time? Too bad. Pay the CP.

Rags's picture

Thanks for the  clarification.  Rather than the income shares model it looks like NYS uses a lump sum model. 

Most states use a parenting time/joint BP income derived model.  I have heard that NYS is particularly painful for NCPs.  One reason why I would never live there.  I stopped one state line away in my Mid Atlantic adventure years.

We had a long time member many years ago who lived the NYS CS hell. 

NYS is one example of why IMHO CPs should be audited yearly to drive accountability for how they spend CS dollars if CS makes up a significant % of the CP's income.  I am on the CP side of our blended family equation and even I can recognize that NCPs get screwed. Particularly in NYS.  

Rags's picture

1-b. Angel The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph Give rose of this subdivision.

(b) For purposes of this subdivision, the following definitions shall be used:

(1) "Basic child support obligation" shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except as increased pursuant to subparagraphs four, five, six and seven of such paragraph.

(2) "Child support" shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years.

(3) "Child support percentage" shall mean:

(i) seventeen percent of the combined parental income for one child;

(ii) twenty-five percent of the combined parental income for two
 children;

(iii) twenty-nine percent of the combined parental income for three children;

(iv) thirty-one percent of the combined parental income for four children; and

(v) no less than thirty-five percent of the combined parental income for five or more children.

(4) "Combined parental income" shall mean the sum of the income of both parents.

(5) "Income" shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:

(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually;

(ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment;

(iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:

Angel workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veterans benefits,

Give rose pensions and retirement benefits,

(G) fellowships and stipends,

(H) annuity payments, and

(I) alimony or maintenance actually paid or to be paid to a spouse who 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, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.

(iv) 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:

Angel 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 indirecly 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;

(v) 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;

(vi) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the following self-employment deductions attributable to self-employment carried on by the taxpayer:

Angel 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;

(vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision:

Angel unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,

(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,

(C) alimony or maintenance actually paid or to be paid to a spouse who 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, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.

(D) 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,

Give rose supplemental security income,

(G) New York city or Yonkers income or earnings taxes actually paid, and

(H) federal insurance contributions act (FICA) taxes actually paid.

Diablo "Self-support reserve" shall mean 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. For the calendar year nineteen hundred eighty-nine, the self-support reserve shall be eight thousand sixty-five dollars. On March first of each year, the self-support reserve shall be 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.

(c) The amount of the basic child support obligation shall be determined in accordance with the provision of this paragraph:

(1) The court shall determine the combined parental income.

(2) The court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income.

(3) Where the combined parental income exceeds the dollar amount set forth in subparagraph two of this paragraph, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph Give rose of this subdivision and/or the child support percentage.

(4) 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 thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated 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 sum of subparagraphs two and three of this paragraph.

(5) The court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph.

(i) "Cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance.

(ii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be available, the cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent's pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent's pro rata share of such costs shall be deducted from the basic support obligation.

(iii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, if the child or children are determined eligible for coverage under the medical assistance program established pursuant to title eleven of article five of the social services law, the court shall order the non-custodial parent to pay cash medical support as follows:

Angel In the case of a child or children authorized for managed care coverage under the medical assistance program, the lesser of the amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law for the child or children if they were in a two-parent household with income equal to the combined income of the non-custodial and custodial parents or the premium paid by the medical assistance program on behalf of the child or children to the managed care plan. The court shall separately state the non-custodial parent's monthly obligation. The non-custodial parent's cash medical support obligation under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the self-support reserve, whichever is less.

(B) In the case of a child or children authorized for fee-for-service coverage under the medical assistance program other than a child or children described in item Angel of this clause, the court shall determine the non-custodial parent's maximum annual cash medical support obligation, which shall be equal to the lesser of the monthly amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law for the child or children if they were in a two-parent household with income equal to the combined income of the non-custodial and custodial parents times twelve months or the number of months that the child or children are authorized for fee-for-service coverage during any year. The court shall separately state in the order the non-custodial parent's maximum annual cash medical support obligation and, upon proof to the court that the non-custodial parent, after notice of the amount due, has failed to pay the public entity for incurred health care expenses, the court shall order the non-custodial parent to pay such incurred health care expenses up to the maximum annual cash medical support obligation. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support.

The total annual amount that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less.

(C) The court shall order cash medical support to be paid by the non-custodial parent for health care expenses of the child or children paid by the medical assistance program prior to the issuance of the court's order. The amount of such support shall be calculated as provided under item Angel or (B) of this clause, provided that the amount that the non-custodial parent is ordered to pay under this item shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less, for the year when the expense was incurred. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support.

(iv) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, and the child or children are determined eligible for coverage under the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law, the court shall prorate each parent's share of the cost of the family contribution required under such child health insurance plan in the same proportion as each parent's income is to the combined parental income, and state the amount of the non-custodial parent's share in the order. The total amount of cash medical support that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the self-support reserve, whichever is less.

(v) In addition to the amounts ordered under clause (ii), (iii), or (iv), the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance, the medical assistance program established pursuant to title eleven of article five of the social services law, or the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law, in the same proportion as each parent's income is to the combined parental income, and state the non-custodial parent's share as a percentage in the order. The non-custodial parent's pro rata share of such health care expenses determined by the court to be due and owing shall be support arrears/past due support and shall be subject to any remedies provided by law for the enforcement of support arrears/past due support. In addition, the court may direct that the non-custodial parent's pro rata share of such health care expenses be paid in one sum or in periodic sums, including direct payment to the health care provider.

(vi) Upon proof by either party that cash medical support pursuant to clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or inappropriate pursuant to paragraph Give rose of this subdivision, the court shall:

Angel order the parties to pay cash medical support as the court finds just and appropriate, considering the best interests of the child; and

(B) set forth in the order the factors it considered, the amount calculated under this subparagraph, the reason or reasons the court did not order such amount, and the basis for the amount awarded.

Diablo Where the court determines that the custodial parent is seeking work and incurs child care expenses as a result thereof, 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 shall be separately stated and paid in a manner determined by the court.

(7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, 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 non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

(d) Notwithstanding the provisions of paragraph (c) of this subdivision, where 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 as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph Give rose of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate.

Notwithstanding the provisions of paragraph (c) of this subdivision, where 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 as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision.

(e) Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not otherwise considered as income pursuant to this section, including but not limited to:

 (1) Life insurance policies;
 (2) Discharges of indebtedness;
 (3) Recovery of bad debts and delinquency amounts;
 (4) Gifts and inheritances; and
 (5) Lottery winnings,

the court, in accordance with paragraphs (c), (d) and Give rose of this subdivision may allocate a proportion of the same to child support, and such amount shall be paid in a manner determined by the court.

Give rose The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parents's pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:

(1) The financial resources of the custodial and non-custodial parent, and those of the child;

(2) The physical and emotional health of the child and his/her special needs and aptitudes;

(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;

(4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;

Diablo The educational needs of either parent;

(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;

(8) 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 pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, 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;

(9) 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 thereof; and

(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.

(g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.

(h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation.

(i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of the office of temporary and disability assistance pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart.

(j) In addition to financial disclosure required in section two hundred thirty-six of this article, the court may require that the income and/or expenses of either party be verified with documentation including, but not limited to, past and present income tax returns, employer statements, pay stubs, corporate, business, or partnership books and records, corporate and business tax returns, and receipts for expenses or such other means of verification as the court determines appropriate. Nothing herein shall affect any party's right to pursue discovery pursuant to this chapter, the civil practice law and rules, or the family court act.

(k) When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater. Such order may be retroactively modified upward, without a showing of change in circumstances.

(l) In any action or proceeding for modification of an order of child support existing prior to the effective date of this paragraph, brought pursuant to this article, the child support standards set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order; provided, however, that (1) where the circumstances warrant modification of such order, or (2) where any party objects to an adjusted child support order made or proposed at the direction of the support collection unit pursuant to section one hundred eleven-h or one hundred eleven-n of the social services law, and the court is reviewing the current order of child support, such standards shall be applied by the court in its determination with regard to the request for modification, or disposition of an objection to an adjusted child support order made or proposed by a support collection unit. In applying such standards, when the order to be modified incorporates by reference or merges with a validly executed separation agreement or stipulation of settlement, the court may consider, in addition to the factors set forth in paragraph Give rose of this subdivision, the provisions of such agreement or stipulation concerning property distribution, distributive award and/or maintenance in determining whether the amount calculated by using the standards would be unjust or inappropriate.

dysfunctionally_blended's picture

There is one hang up in this that I saw - father has shared custody but doesn't exercise his time.

If NYS is like many others CS is based on overnights. Your DW needs to show that he has refused his custody time. That is where your witnesses are going to come into play. Has she kept a calendar and proof of his refusal? Are there witnesses to his refusal?

And the difference between what she had attended and the trial are:

1. The conference is where the parties themselves come to an agreement.

2. The hearing the judge will decide.

STaround's picture

All that matters is what the parents earn and who is CP.   Maybe what a parent could earn if voluntarily  unemployed or underemployed

dysfunctionally_blended's picture

Overnights are not taken into consideration in the calculator?

Here the first criteria is custody time. Then income. Then it spits out a percentage. And it's custody time on paper if not proven otherwise. 

tryingmybestatthis's picture

She has pages and pages of emails and texts with him saying he can’t pick up, transport, afford to pay for this or that. The kids haven’t spent an overnight with him in probably 2 years. He doesn’t want to be with the kids, he wants people to think he does...