Oliver Brewster an expert in family law gives more details on child support

Oliver Brewster is a  lawyer at Brewster Law. He was invited  on July 29, 2020 by “The African Immigrants’ Commission of NY & CT” to talk about child support  during a workshop. He has decided throughout that interview  to give more details on the subject.

  What is child support?

  • Child support is money paid by a parent to pay for a child’s needs until that child turns 21 or is emancipated prior to turning 21.  Child support covers general expenses as well as child care, health care, and other expenses.  The parent may be ordered to pay for the child’s health insurance if it is affordable. 

Who gets child support?

  • The parent or person who lives with the child more than half of the time can get child support from the other parent.
  • If the child lives with each parent equally, there could still be a child support order.

How do I get child support?

  • A parent or custodian may file a petition for child support in Family Court.  Also, a parent may request child support in a divorce case in Supreme Court.  While a divorce case is open, any child support petition in Family Court will be transferred to Supreme Court, unless it is a Social Services petition because the child receives public assistance.
  • Custodial parents who are applying for or receiving cash assistance or medical assistance only are automatically referred to an OCSE (Office of Child Support Enforcement) Borough office for child support services.
  • OCSE will help you locate the noncustodial parent.
  • Although both parents are entitled to an attorney for a child support petition in Family Court, they are not entitled to have one assigned if they cannot afford one.
  • At one or more court appearances, the parents will have the opportunity to reach a child support agreement.  The Family Court will inform the parties of what the “guidelines amount” of support is based upon their incomes. If the parents agree to a different amount, they need to provide a reason. The court can issue temporary and final orders.
  • If there is no agreement, the court will have a trial.
  • If the parent does not appear in court, the court may issue a warrant for his/her arrest or the court may issue a default order.
  • If a parent lives far from the court, he/she can ask the court to attend the court appearances by telephone.Establishing Paternity

    When a child is born to unmarried parents, paternity (legal fatherhood) must

    be established before a child support order can be issued:

    • Establishing paternity gives your child benefits that may include social security, military allowance, pension, child support, health insurance, and the right to inherit from the father.
    • Paternity can be established in the hospital as soon as the baby is born, or any time before reaching age 21. If both parents agree, they can sign an Acknowledgment of Paternity (AOP) form, which becomes a legal document once it is filed with the Department of Health and Mental Hygiene (DOHMH).

    Paternity can also be established at a hearing in Family Court. Either parent can file a petition for a paternity hearing.

    • If there is a question about the identity of the father, low-cost DNA testing is available through New York state-certified laboratories. For more information and a referral, contact the OCSE Outreach and Paternity Unit at 929-221-5008.

    If you have a scheduled date to appear in Family Court for a child support hearing, you cannot request DNA testing on your own. The Support Magistrate will order a DNA test if it is needed to establish paternity.

    How does the court decide how much child support should be paid?

    • The court applies a formula according to the guidelines. You are entitled to be given a copy of the guidelines income chart.
    • First, the court determines the income of each parent.  Income includes wages, Social Security benefits, veteran’s benefits, and unemployment insurance benefits.  Income does not include Supplemental Security Income.  The court will subtract from a person’s income any child support paid for other children and some types of taxes.  The court adds the income of both parents together.
    • Second, the court multiplies the combined income by a percentage:
      • 17% for one child
      • 25% for two children
      • 29% for three children
      • 31% for four children
      • 35% for five or more children
    • Third, the court divides that amount based upon each parent’s income so that the non-custodial parent pays his/her share to the custodial parent.
    • Fourth, the court decides whether this formula is fair.  The court considers several factors to determine fairness.
    • Fifth, the court lowers the child support to $50 or $25 per month if the child support formula amount will lower the non-custodial parent’s income too much

    Documents each parent will need

    • Complete Financial Disclosure Affidavit
      • Proof of Income and assets such as pay stubs, tax returns, bank accounts, and other investments and property holdings
      • Proof of household expenses such as rent and food
      • Proof of medical, child care, and education costs.

      What does child support include?

      • Obligation amount
      • Medical Support
      • Reasonable education and daycare expenses

      What happens if a parent does not pay child support?

      • If a parent misses payments, the other parent can file a support violation petition in Family Court.  If the child receives public assistance, food stamps, or Medicaid, the Department of Social Services may file the petition.
      • For a violation petition, both parents have the right to an attorney, but only the parent who has to pay support can have an attorney assigned if he/she cannot afford one.
      • The court will decide whether nonpayment was willful or non-willful. 
        • A willful violation means that the parent did not pay support and he/she had the ability to pay or should have had the ability to pay.  There will be a money judgment in the amount of the support owed and the parent might be incarcerated for up to six months.
        • A non-willful violation means that the parent did not pay support and he/she did not have the ability to pay.  There will be a money judgment in the amount of support owed.
        • Seize bank account, suspend driver’s license, inability to renew passport, inability to renew city or state license.

      How do I pay my child support?

      • A parent can pay child support directly to the other parent.  But if you do pay directly, it’s very important that you have a written receipt (or cancelled check) stating the date and how much you paid.
      • A parent can pay child support to the Child Support Enforcement Unit.  It keeps records of payments and sends payments to the custodial parent.  Parents can agree to payments through the Child Support Enforcement Unit when the court orders child support.  Outside of court, either parent can apply for services from the Child Support Enforcement Unit.  To apply, please visit www.newyorkchildsupport.com.
      • To find your local child support office, visit www.childsupport.ny.gov/DCSE/LocalOffices_input.action

      How do I change my child support?

      • Either parent may file a child support modification petition in Family Court.  Both parents are entitled to an attorney, but neither will be assigned an attorney if he/she cannot afford one.
      • The court can change the child support if:
        • there has been a substantial change of circumstances since the last order or
        • the last order was issued over three years ago or
        • income has changed 15% or more.

      When does child support end?

      • Child support automatically ends when the child turns 21 years.
      • A court can end child support before the child turns 21 years if the child becomes emancipated.  See the article Emancipation in New York.

      Modification of Child Support Order

      After the final child support order is in place, either parent may seek a modification of the order under certain situations. There are three circumstances under which the court may modify the child support order:

      1. Substantial change in circumstances — if there have been substantial changes to the cost of raising a child or to a parent’s income, the court may modify the child support order to make it either higher or lower.
      2. Three years have elapsed since the order was entered, last modified or adjusted — once three years have elapsed, either parent can seek a modification (upward or downward), and the court has the authority to look at the parties current income to recalculate the Basic Child Support amount.
      3. There has been an involuntary change in either party’s gross income up or down by 15% or more since the order was entered, last modified, or adjusted — if either parent has suffered an involuntary 15% decrease in income, and that parent is actively seeking higher paying work, that parent can seek a downward modification of child support.

      The above circumstances may be waived in a stipulation of settlement. If your circumstances change substantially or you lose your job, it is important to seek modification as soon as possible. The court cannot retroactively change the terms of child support, and any modification would only be effective as of the filing date of the modification application. For example, if your income has fallen substantially and you wait to file for a downward 

      modification, you will still owe any arrears even if your current income does not support that level of child support payment until the date you file for a downward modification.

      Under the Uniform Interstate Family Support Act (UIFSA), the state that issued the child support order retains exclusive jurisdiction over the order. If the other parent has had absolutely no contact with New York, you cannot enforce the order through New York courts. However, you can get a withholding order sent to the new state, which will specify the details of the support order and the amount to be withheld.

      PATERNITY
      Establishing paternity refers to the legal identification of the father of a child born to unmarried parents.

      Who should establish paternity?

      • Unmarried biological parents
      • Parents who get married after the child is born
      • Teen parents (they do not need their own parent’s consent)
      • Parents who are immigrants including those who are not citizens and those who are undocumented, even if either or both do not have valid social security numbers. They will not be asked about their immigration status and any information obtained to establish paternity and/or child support will not be shared with the U.S. Citizenship and Immigration Services

      Benefits of Establishing Paternity

      For the Mother • Shared parental responsibilities • More financial security for the family

      For the Father • Legal establishment of parental rights and responsibilities • Name appears on the child’s birth certificate • Right to seek court-ordered visitation and/or custody • Right to be consulted in adoption or other legal proceedings concerning the child

      For the Child • Legal record of the identity of the father • Father’s name on the birth certificate • Information about family medical history • Financial support from both parents • Entitlement to medical insurance, social security and veterans benefits, and military allowances from the father • Rights of inheritance if the father dies

       How Paternity Is Established?

      There are two ways to establish paternity. Paternity can be established through a voluntary process, by signing an Acknowledgment of Paternity (AOP), or through a judicial process which means going to court.

      If both parents agree, they can sign an Acknowledgment of Paternity (AOP) as soon as the baby is born.

      Paternity can be established any time after the baby leaves the hospital. This is true until the child turns 21 years old.  You can use the AOP form still.

      Do Not Sign the Acknowledgment of Paternity Form If: • The baby has not been born yet • Either parent is not sure who the baby’s father is • The baby’s parents are married to each other • The mother is legally married to someone who is not the father.

      Paternity Establishment in Court Paternity can be established in family court if: • An Acknowledgment of Paternity has not been signed. • The mother is married to someone other than the baby’s biological father. Even if she has not been in contact with her husband and knows he is not the father, a court hearing is necessary to exclude him and establish the biological father as the legal father. • The parents are in court for a child support hearing and paternity has not been established.

      Question of Who the Father Is If either parent has any doubt about the identity of the father, do not sign the Acknowledgment of Paternity. You may request low-cost DNA testing

      Paternity and the Department of Health and Mental Hygiene When paternity is established, the AOP or Order of Filiation (court order that establishes paternity) is sent to the NYC Department of Health and Mental Hygiene (DOHMH) for registration. They, in turn, provide parents with certified copies of their child’s birth certificate and AOP. If paternity is established after the birth certificate has been registered, the birth certificate will be amended to include the father’s name.

      Documents You Will Need At the hospital or birthing center where your baby is born, you will be asked questions about your marital status to determine whether you may establish paternity by filling out the Acknowledgment of Paternity. You will need to bring your current marriage certificate or divorce decree, if you have one. In addition, be prepared to show photo identification, since your signature on the AOP must be witnessed.

      Benefits of Establishing Paternity For the Mother

      Shared parental responsibilities

      More financial security for the family For the Father

      Legal establishment of parental rights and responsibilities

      Name appears on the child’s birth certificate

      Right to seek court-ordered visitation and/or custody

      Right to be consulted in adoption or other legal proceedings concerning the child For the Child

      Legal record of the identity of the father

      Father’s name on the birth certificate

      Information about family medical history

      Financial support from both parents

      Entitlement to medical insurance, social security and veterans benefits, and military allowances from the father

      Rights of inheritance if the father dies Canceling an Acknowledgment of Paternity

      If either parent wants to cancel the AOP after it has been filed with DOHMH, a court hearing is required. Either parent may file a petition to vacate the AOP with the court. If a parent was 18 years or older when signing the AOP, he/she must file by the earlier of

      60 days after signing the AOP, or

      60 days after having to answer any court petition about the child. If a parent was younger than 18 years when signing the AOP, he/she must file by the earlier of

      60 days after reaching age 18, or

      60 days after having to answer any court petition about the child if the parent was advised of the right to cancel the AOP at a proceeding related to the child. After these time limits, the parent filing the petition must show proof of fraud, duress, or material mistake of fact.

    • The Support Magistrate will decide if the Acknowledgment of Paternity should be canceled, based on the facts presented at the hearing and the best interests of the child. It is possible that someone who is not the biological father may continue to be legally obligated to pay child support. That’s why you should be sure of the father’s identity before establishing paternity.

       

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