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Long Island Child Support Lawyer Answers Frequently Asked Questions

Long Island Child Support Lawyer Answers Frequently Asked Questions

by | Aug 29, 2016

Who Must Pay Child Support on Long Island?

On Long Island, both parents have a legal responsibility to financially support their child. The parent with whom the child lives is known as the “custodial parent”. The parent who does not live with the child is known as a “non-custodial parent”. A non-custodial parent must provide financial assistance for the support of his or her child even though he or she does not live with the child. This is true even in cases where a child spends equal time with both parents. In such cases, if the non-custodial parent is the higher earning parent, he or she may have an obligation to pay child support to the custodial parent for the care of the child.

How is the Amount of Child Support Determined?

Long Island courts are governed by New York state law, which uses a formula to determine the child support obligation. That formula is generally as follows:

  • 17% of the parent’s gross income for 1 child
  • 25% of the parent’s gross income for 2 children
  • 29% of the parent’s gross income for 3 children
  • 31% of the parent’s gross income for 4 children
  • 35% or more of the parent’s gross income for 5 children

Some non-custodial parents are also responsible for covering a certain percentage of medical, educational, and child care expenses. This percentage will be determined based upon the income of the non-custodial parent. Usually these costs are split up proportionally based upon how much each parent earns.

What If I Have Other Children & Cannot Afford This?

In some circumstances, where a non-custodial parent has to pay child support to two or more different custodial parents as a result of having children in two or more other relationships, that non-custodial parent may be able to argue that he or she cannot afford to pay the set percentage in these circumstances. For example, if a man fathers two children, each by different mothers, he would have to pay 17% of his income to one custodial parent for one child, and 17% of his income to the other custodial parent for the other child. The father may be able to successfully argue that he cannot afford the burden of paying out this much, and the court may modify the formula.

Similarly, where a father is raising children in his own home and paying child support for a child who does not live with him, he may be able to successfully argue that he cannot care for the child in his custody because of his child support obligations to his other child.

When Does the Child Support Obligation Begin?

The obligation to pay court-ordered child support begins when the custodial parent files a petition in court.

Can I Modify a Child Support Order?

A child support order can be modified only if there is a significant change in circumstances. A significant change in circumstances usually means a large increase or a large decrease in income.

Can I Modify the Amount of Child Support Arrears I Owe?

In New York State, the amount of overdue child support cannot be modified. If you anticipate that you will fall behind on payments, it is best to speak to a lawyer on how to get a modification before that happens.

What About Cases Where Paternity Has Not Been Established?

In order for the child support obligation to take hold, there must be a legal parental relationship established between the parent and child. A father has a legal parental relationship with the child when paternity has been established. This can happen in several ways: the father signs an acknowledgment of paternity, the father is married to the child’s mother at the time the child is born, or a court issues an order after genetic testing has shown the individual is the father.

What if a Parent Gets Remarried?

The remarriage of a parent does not change the child support obligation of the legal parent to that child. In cases where there is a termination of parental rights leading up to step-parent adoption, however, there is a change in the legal child support obligations.

What if the Custodial Parent Refuses to Allow Me to Visit With My Child?

Visitation and child support are separate issues, and a custodial parent cannot violate a court’s order to allow visitation. It is best to seek recourse in the court, such as by having a visitation order enforced or simply by asking the court for a visitation order if you do not have one.

If the Non-Custodial Parent Refuses to Pay Child Support, Can I Prevent Him or Her from Seeing My Child?

As stated above, New York State treats visitation and child support as separate issues. If you are not getting the child support that is owed to you, you should seek the advice of an experienced Long Island child support lawyer or family law attorney to go through your options.

Contact an Experienced Long Island Child Support Lawyer or Family Law Attorney for a Free Consultation

If you have questions about your child support arrangement, you should speak to an experienced Long Island Child Support lawyer or Family Law attorney who can explain to you your rights and responsibilities. Our attorneys are experienced in all aspects of family law in New York State, and have helped many Long Island clients with their child support concerns. Contact us today at 631-923-1910 for a free consultation.

Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.

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CHILD SUPPORT

by | Jul 14, 2015

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FATHER’S RIGHTS

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Do Long Island Parents in Same-Sex Marriages Have the Same Divorce and Child Support Rights as Opposite-Sex Parents?

by | Jul 8, 2014

Long Island Divorce Child Support Same Sex Parents The legalization of Same-Sex Marriages in New York has far-reaching implications for Long Island couples who have children in these marriages, particularly with regards to death, divorce and child support. While both spouses cannot be biological parents of the child or children of the marriage, should the non-biological parent/s and children born during that marriage be afforded the same legal protections opposite-sex spouses have enjoyed?

Children Born of Marriage Deemed ‘Legitimate’ on Long Island, NY

The law in New York provides presents a strong presumption of legitimacy to children born of a marriage. This presumption arises not only from case law rulings, but also from its codification in Section 24 of New York’s Domestic Relations Law. Both provide that any child born to married parents is presumed to be “the legitimate child of both parents.” Non-marital children, therefore, are not afforded this presumption, and are seen as the legitimate child of only the mother.

Benefits of Legitimacy

In order to be the legitimate child of the father, there must be facts and circumstances to prove such. While you may be wondering why this matters, one important benefit of being afforded said presumption is what happens upon the death of a parent to whom the child is not deemed to be a legally legitimate child.

When an illegitimate child’s father dies without a will, the child must prove paternity, either through a court order or other evidence, such as the father having held the child out as his own during his lifetime, in order to inherit through the father’s intestate distribution scheme.

A second issue arises upon the divorce or separation of a couple. A parent is entitled to visitation and/or child support for a child born of a marriage; however, a parent of an illegitimate child may be legally excluded from seeing that child upon divorce or separation. Accordingly, the presumption affords marital children a large benefit over non-marital children. However, with the recent passing of New York’s Marriage Equality Act, which recognizes same-sex marriages, the issue of whether this presumption applies to same-sex marriages as well has reached the courts.

Wendy G-M. v. Erin G-M.

This case, which was heard in New York’s Supreme Court in Monroe County, centered on a child born to a same-sex couple via artificial insemination. The couple, which was legally married, consented to the procedure and executed a document providing that any child born of the procedure would be “accepted as the legal issue of [the] marriage.” The non-birthing spouse was involved in the process and pre-birth rituals, such as birthing classes and name choosing, to the same extent as the birth-spouse was, and the child’s birth certificate has both women listed as her parents. Not long after the birth of the child, the couple separated, the birth-spouse filed for divorce and subsequently prohibiting her partner to visit with the child. If the non-birth parent was considered to be the child’s legitimate parent, she would have a right to visitation and the birth mother could not legally prohibit that right without a court order.

Does the Same Presumption Apply to Same-Sex Marriages?

Because the New York Courts had previously held that the term “parent” does not contain gender-specific boundaries, the court in Wendy G-M. v. Erin G-M. held that the presumption of legitimacy applies to children born of same-sex marriages as well.

Furthermore, courts have stated that any changes in the definition of the term “parent” cannot come from case law, but rather should come from changes in legislation that represent the growing views of the community. More specifically on the topic of artificial insemination, the Domestic Relations Law provides that a child born of artificial insemination is not the legitimate child of the anonymous donor, but of the husband and wife to which the child is born. Therefore in such instances, when all statutory requirements are met, there is a rebuttable presumption that a child born of artificial insemination is the child of the marriage.

So long as both parents consent to and are involved in the procedure, and there is intent that both parties be considered to be the legitimate parents of the child, there is no legal difference between opposite or same sex marriages. As with most, this presumption is rebuttable and can be negated by either spouse; “the birth-mother could produce evidence that she never intended her spouse to be the parent … [and] the unknowing, non-biological spouse, would be required to overcome the presumption of consent, and prove lack of consent.”

What Does this Mean for Me on Long Island?

If you are in a same-sex relationship in New York, any child born of your marriage through artificial insemination, so long as there is consent on behalf of both of you and your partner, will be presumed to be the legitimate child of the marriage. Therefore, if you are seeking a divorce, the birth-spouse cannot prohibit the non-birth parent from visitation rights with the child, nor can be excused from child support payments.

Have Questions About Your Parental Rights and Responsibilities? Speak to an Experienced and Compassionate Long Island Divorce Attorney

The Long Island divorce attorneys and divorce mediators at the law firm of Hornberger Verbitsky, P.C. are experienced in all aspects of divorce law on Long Island, including those impacted by the recent Marriage Equality Act. To schedule an appointment for a complimentary consultation to discuss your case, contact our offices at 631-923-1910.