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New York Child Support Standards Act
On September 15, 1989 the Child Support Standards Act (CSSA) became effective. This sweeping new legislation (sometimes unofficially called the "guidelines") amends Section 240 of the Domestic Relation Law to require that the court provide for child support and that an award of child support be made in accordance with subdivision 1-b of that section. Identical child support provisions were included in Section 413(1-b) of the Family Court Act.
The new law provides that basic child support be determined by applying percentages to the combined parental income (CPI) of the parties and then prorating the child support between the parties in proportion of each party's income to the combined parental income. The percentages are applied to the first $80,000.00 of combined parental income. These percentages are as follows:
The first step in applying the formula is to determine gross income of the parties. Usually gross income is that which has been reported ( or should have been reported ) on the most recent federal tax return. The statute provides a list of items to be added to income. These items include: workers compensation benefits; disability payments; unemployment insurance benefits; veterans benefits; pension and retirement benefits; fellowships and stipends; and annuity payments. The statute then provides that a court may impute income from other sources including but not limited to fringe benefits, monies provided by relatives and friends, and willfully reduced income in addition, a court may include a portion of non-recurring payments as income for child support purposes, such as: gifts and inheritances; lottery winnings; and life insurance policies.
Next, there is a deducted New York City or Yonkers income taxes actually paid and FICA (Social Security and Medicare) taxes actually paid. If the non-custodial parent is paying maintenance (alimony) either to the present spouse or a former spouse or paying child support pursuant to an order to children of a former marriage or otherwise, these amounts are also deducted from income. Finally the basic support is determined by multiplying the combined parental income ( up to $80,000.00) by the appropriate percentage and then pro-rating the amount between the parties.
When the combined parental income exceeds $80,000.00, the court shall determine the amount of t child support in excess of $80,000.00 through consideration of factors set forth in paragraph 1-f of Section 240 DRL (enumerated below) and/or the child support percentages. In 1995 the Court of Appeals in Cassano v. Cassano, 85 NY2d 649 (1995) stated that a court is free to apply the percentages to combined parental income over $80,000.00 without enumerating the factors so long as there is a reason for the application for the use of the percentages.
When the custodial parent is working or receiving education or vocational training which the court determines will lead to employment, and incurs child care expenses, the court shall pro-rate reasonable child care expenses. Each parent's pro-rata share of child care expenses shall be separately stated and added to the sum previously determined.
When the court determines that the custodial parent is seeking work and incurs child care expenses, the court may apportion the expenses between the custodial and non-custodial parent.
Note the difference between the two provisions above: In the first case, the court must pro-rate child care expenses; in the second case the court has discretion to apportion child care expenses. In either instance, the court will only consider reasonable child care expenses.
The court shall pro-rate each parent's share of future reasonable health care expenses not covered by insurance in the same proportion as each parent's income is to the combined parental income.
In addition to all of the above, the court may award educational expenses for post-secondary, private, special or enriched education.
It is important to note that the provisions in the statute are guidelines for the court. Where the court finds that the pro-rata share of the basic child support obligation is unjust or inappropriate, the court shall order child support in a just and appropriate amount and shall set forth the factors it considered and the reasons for the amount of support ordered.
The factors that the court must consider in its determination as to whether or not the guideline support is unjust or inappropriate are:
When the court finds the pro-rata of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered and the reasons for the level of support.
The parties are free to "opt out" of the CSSA by executing an agreement (separation agreement or stipulation) and provide for child support in a greater or lesser amount than that which would be applicable if the guidelines were used. The agreement must contain a provision that the parties have been advised of the provisions of the CSSA guidelines for child support.
The CSSA is not retroactive to orders of child support entered prior to the effective date of the new law. However, when a custodial parent makes an application for modification, the court shall apply the guidelines.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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