Can My Wife Waive Child Support in a Divorce in New York?
Full Question:
Answer:
The parties may stipulate in a separation agreement that one parent's request for child support from the other parent will be waived and this may be incorporated in the divorce decree, but if there is a deviation from the child support guidelines, the court must state the reasons for such deviation. Some courts will not allow the parties to waive child support requirement even if the parties are in agreement. Generally, the right to waive the support is construed to belong to the child and not to the parent with whom the child lives. Since the child is not competent to make this kind of decision, the court is very reluctant to allow child support to be waived. It will be a subjective matter of determination for the court based on all the facts and circumstances in each case. The overriding determining factor is the child’s best interest and the child support ordered in the decree will ultimately be a matter for the court to specify.
Please see the following NY statute:
§ 240 Dom. Rel. Custody and child support; orders of protection.
1. (a)[fn*] In any action or proceeding brought (1) to annul a marriage
or to declare the nullity of a void marriage, or (2) for a separation, or
(3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
petition and order to show cause, the custody of or right to visitation
with any child of a marriage, the court shall require verification of the
status of any child of the marriage with respect to such child's custody
and support, including any prior orders, and shall enter orders for
custody and support as, in the court's discretion, justice requires,
having regard to the circumstances of the case and of the respective
parties and to the best interests of the child and subject to the
provisions of subdivision one-c of this section. Where either party to an
action concerning custody of or a right to visitation with a child
alleges in a sworn petition or complaint or sworn answer,
cross-petition, counterclaim or other sworn responsive pleading that the
other party has committed an act of domestic violence against the party
making the allegation or a family or household member of either party, as
such family or household member is defined in article eight of the family
court act, and such allegations are proven by a preponderance of the
evidence, the court must consider the effect of such domestic violence
upon the best interests of the child, together with such other facts and
circumstances as the court deems relevant in making a direction pursuant
to this section. If a parent makes a good faith allegation based on a
reasonable belief supported by facts that the child is the victim of
child abuse, child neglect, or the effects of domestic violence, and if
that parent acts lawfully and in good faith in response to that
reasonable belief to protect the child or seek treatment for the child,
then that parent shall not be deprived of custody, visitation or contact
with the child, or restricted in custody, visitation or contact, based
solely on that belief or the reasonable actions taken based on that
belief. If an allegation that a child is abused is supported by a
preponderance of the evidence, then the court shall consider such evidence
of abuse in determining the visitation arrangement that is in the best
interest of the child, and the court shall not place a child in the
custody of a parent who presents a substantial risk of harm to that
child. An order directing the payment of child support shall contain the
social security numbers of the named parties. In all cases there shall be
no prima facie right to the custody of the child in either parent. Such
direction shall make provision for child support out of the property of
either or both parents. The court shall make its award for child support
pursuant to subdivision one-b of this section. Such direction may provide
for reasonable visitation rights to the maternal and/or paternal
grandparents of any child of the parties. Such direction as it applies to
rights of visitation with a child remanded or placed in the care of a
person, official, agency or institution pursuant to article ten of the
family court act, or pursuant to an instrument approved under section
three hundred fifty-eight-a of the social services law, shall be
enforceable pursuant to part eight of article ten of the family court act
and sections three hundred fifty-eight-a and three hundred eighty-four-a
of the social services law and other applicable provisions of law against
any person having care and custody, or temporary care and custody, of the
child. Notwithstanding any other provision of law, any written
application or motion to the court for the establishment, modification or
enforcement of a child support obligation for persons not in receipt of
public assistance and care must contain either a request for child support
enforcement services which would authorize the collection of the support
obligation by the immediate issuance of an income execution for support
enforcement as provided for by this chapter, completed in the manner
specified in section one hundred eleven-g of the social services law; or a
statement that the applicant has applied for or is in receipt of such
services; or a statement that the applicant knows of the availability of
such services, has declined them at this time and where support
enforcement services pursuant to section one hundred eleven-g of the
social services law have been declined that the applicant understands
that an income deduction order may be issued pursuant to subdivision (c)
of section fifty-two hundred forty-two of the civil practice law and
rules without other child support enforcement services and that payment
of an administrative fee may be required. The court shall provide a copy
of any such request for child support enforcement services to the support
collection unit of the appropriate social services district any time it
directs payments to be made to such support collection unit.
Additionally, the copy of any such request shall be accompanied by the
name, address and social security number of the parties; the date and
place of the parties' marriage; the name and date of birth of the child or
children; and the name and address of the employers and income payors of
the party from whom child support is sought or from the party ordered to
pay child support to the other party. Such direction may require the
payment of a sum or sums of money either directly to the custodial parent
or to third persons for goods or services furnished for such child, or
for both payments to the custodial parent and to such third persons;
provided, however, that unless the party seeking or receiving child
support has applied for or is receiving such services, the court shall
not direct such payments to be made to the support collection unit, as
established in section one hundred eleven-h of the social services law.
Every order directing the payment of support shall require that if either
parent currently, or at any time in the future, has health insurance
benefits available that may be extended or obtained to cover the child,
such parent is required to exercise the option of additional coverage in
favor of such child and execute and deliver to such person any forms,
notices, documents or instruments necessary to assure timely payment of
any health insurance claims for such child.
[fn*] NB Effective until December 15, 2009
(a)[fn*] In any action or proceeding brought (1) to annul a marriage or
to declare the nullity of a void marriage, or (2) for a separation, or
(3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
petition and order to show cause, the custody of or right to visitation
with any child of a marriage, the court shall require verification of the
status of any child of the marriage with respect to such child's custody
and support, including any prior orders, and shall enter orders for
custody and support as, in the court's discretion, justice requires,
having regard to the circumstances of the case and of the respective
parties and to the best interests of the child and subject to the
provisions of subdivision one-c of this section. Where either party to an
action concerning custody of or a right to visitation with a child
alleges in a sworn petition or complaint or sworn answer,
cross-petition, counterclaim or other sworn responsive pleading that the
other party has committed an act of domestic violence against the party
making the allegation or a family or household member of either party, as
such family or household member is defined in article eight of the family
court act, and such allegations are proven by a preponderance of the
evidence, the court must consider the effect of such domestic violence
upon the best interests of the child, together with such other facts and
circumstances as the court deems relevant in making a direction pursuant
to this section and state on the record how such findings, facts and
circumstances factored into the direction. If a parent makes a good faith
allegation based on a reasonable belief supported by facts that the child
is the victim of child abuse, child neglect, or the effects of domestic
violence, and if that parent acts lawfully and in good faith in response
to that reasonable belief to protect the child or seek treatment for the
child, then that parent shall not be deprived of custody, visitation or
contact with the child, or restricted in custody, visitation or contact,
based solely on that belief or the reasonable actions taken based on that
belief. If an allegation that a child is abused is supported by a
preponderance of the evidence, then the court shall consider such evidence
of abuse in determining the visitation arrangement that is in the best
interest of the child, and the court shall not place a child in the
custody of a parent who presents a substantial risk of harm to that
child, and shall state on the record how such findings were factored into
the determination. An order directing the payment of child support shall
contain the social security numbers of the named parties. In all cases
there shall be no prima facie right to the custody of the child in either
parent. Such direction shall make provision for child support out of the
property of either or both parents. The court shall make its award for
child support pursuant to subdivision one-b of this section. Such
direction may provide for reasonable visitation rights to the maternal
and/or paternal grandparents of any child of the parties. Such direction
as it applies to rights of visitation with a child remanded or placed in
the care of a person, official, agency or institution pursuant to article
ten of the family court act, or pursuant to an instrument approved under
section three hundred fifty-eight-a of the social services law, shall be
enforceable pursuant to part eight of article ten of the family court act
and sections three hundred fifty-eight-a and three hundred eighty-four-a
of the social services law and other applicable provisions of law against
any person having care and custody, or temporary care and custody, of the
child. Notwithstanding any other provision of law, any written
application or motion to the court for the establishment, modification or
enforcement of a child support obligation for persons not in receipt of
public assistance and care must contain either a request for child support
enforcement services which would authorize the collection of the support
obligation by the immediate issuance of an income execution for support
enforcement as provided for by this chapter, completed in the manner
specified in section one hundred eleven-g of the social services law; or a
statement that the applicant has applied for or is in receipt of such
services; or a statement that the applicant knows of the availability of
such services, has declined them at this time and where support
enforcement services pursuant to section one hundred eleven-g of the
social services law have been declined that the applicant understands
that an income deduction order may be issued pursuant to subdivision (c)
of section fifty-two hundred forty-two of the civil practice law and
rules without other child support enforcement services and that payment
of an administrative fee may be required. The court shall provide a copy
of any such request for child support enforcement services to the support
collection unit of the appropriate social services district any time it
directs payments to be made to such support collection unit.
Additionally, the copy of any such request shall be accompanied by the
name, address and social security number of the parties; the date and
place of the parties' marriage; the name and date of birth of the child or
children; and the name and address of the employers and income payors of
the party from whom child support is sought or from the party ordered to
pay child support to the other party. Such direction may require the
payment of a sum or sums of money either directly to the custodial parent
or to third persons for goods or services furnished for such child, or
for both payments to the custodial parent and to such third persons;
provided, however, that unless the party seeking or receiving child
support has applied for or is receiving such services, the court shall
not direct such payments to be made to the support collection unit, as
established in section one hundred eleven-h of the social services law.
Every order directing the payment of support shall require that if either
parent currently, or at any time in the future, has health insurance
benefits available that may be extended or obtained to cover the child,
such parent is required to exercise the option of additional coverage in
favor of such child and execute and deliver to such person any forms,
notices, documents or instruments necessary to assure timely payment of
any health insurance claims for such child.
[fn*] NB Effective December 15, 2009
(a-1)(1) Permanent and initial temporary orders of custody or visitation.
Prior to the issuance of any permanent or initial temporary order of
custody or visitation, the court shall conduct a review of the decisions
and reports listed in subparagraph three of this paragraph.
(2) Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
subparagraph three of this paragraph, unless such a review has been
conducted within ninety days prior to the issuance of such order.
(3) Decisions and reports for review. The court shall conduct a review of
the following:
(i) related decisions in court proceedings initiated pursuant to
article ten of the family court act, and all warrants issued under the
family court act; and
(ii) reports of the statewide computerized registry of orders of
protection established and maintained pursuant to section two hundred
twenty-one-a of the executive law, and reports of the sex offender registry
established and maintained pursuant to section one hundred sixty-eight-b of
the correction law.
(4) Notifying counsel and issuing orders. Upon consideration of decisions
pursuant to article ten of the family court act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a
self-represented party, notifying such party of the results thereof,
including any court appointed attorney for children, the court may issue a
temporary, successive temporary or final order of custody or visitation.
(5) Temporary emergency order. Notwithstanding any other provision of the
law, upon emergency situations, including computer malfunctions, to serve
the best interest of the child, the court may issue a temporary emergency
order for custody or visitation in the event that it is not possible to
timely review decisions and reports on registries as required pursuant to
subparagraph three of this paragraph.
(6) After issuing a temporary emergency order. After issuing a
temporary emergency order of custody or visitation, the court shall
conduct reviews of the decisions and reports on registries as required
pursuant to subparagraph three of this paragraph within twenty-four hours
of the issuance of such temporary emergency order. Should such
twenty-four hour period fall on a day when court is not in session, then
the required reviews shall take place the next day the court is in
session. Upon reviewing decisions and reports the court shall notify
associated counsel, self-represented parties and attorneys for children
pursuant to subparagraph four of this paragraph and may issue temporary or
permanent custody or visitation orders.
(7) Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration, is
hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of computers
in courts which are connected to the statewide central register of child
abuse and maltreatment established and maintained pursuant to section four
hundred twenty-two of the social services law, as a means of providing
courts with information regarding parties requesting orders of custody or
visitation. Such commissioner shall make a preliminary report to the
governor and the legislature of findings, conclusions and recommendations
not later than January first, two thousand nine, and a final report of
findings, conclusions and recommendations not later than June first, two
thousand nine, and shall submit with the reports such legislative proposals
as are deemed necessary to implement the commissioner's recommendations.
(a-2)[fn*] Military service by parent; effect on child custody orders.
(1) During the period of time that a parent is activated, deployed or
temporarily assigned to military service, such that the parent's ability
to continue as a joint caretaker or the primary caretaker of a minor
child is materially affected by such military service, any orders issued
pursuant to this section, based on the fact that the parent is activated,
deployed or temporarily assigned to military service, which would
materially affect or change a previous judgment or order regarding
custody of that parent's child or children as such judgment or order
existed on the date the parent was activated, deployed, or temporarily
assigned to military service, shall be subject to review pursuant to
subparagraph three of this paragraph. Any relevant provisions of the
Service Member's Civil Relief Act shall apply to all proceedings governed
by this section.
(2) During such period, the court may enter an order to modify custody if
there is clear and convincing evidence that the modification is in the best
interests of the child. An attorney for the child shall be appointed in all
cases where a modification is sought during such military service. Such
order shall be subject to review pursuant to subparagraph three of this
paragraph. When entering an order pursuant to this section, the court shall
consider and provide for, if feasible and if in the best interests of the
child, contact between the military service member and his or her child,
including, but not limited to, electronic communication by e-mail, webcam,
telephone, or other available means. During the period of the parent's
leave from military service, the court shall consider the best interests of
the child when establishing a parenting schedule, including visiting and
other contact. For such purposes, a "leave from military service" shall be
a period of not more than three months.
(3) Unless the parties have otherwise stipulated or agreed, if an order
is issued pursuant to this paragraph, the return of the parent from active
military service, deployment or temporary assignment shall be considered a
substantial change in circumstances. Upon the request of either parent, the
court shall determine on the basis of the child's best interests whether
the custody judgment or order previously in effect should be modified.
(4) This paragraph shall not apply to assignments to permanent duty
stations or permanent changes of station.
[fn*] NB Effective November 15, 2009
(b) As used in this section, the following terms shall have the following
meanings:
(1) "Health insurance benefits" means any medical, dental, optical and
prescription drugs and health care services or other health care benefits
that may be provided for a dependent 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.
(2) "Available health insurance benefits" means any health insurance
benefits that are reasonable in cost and that are reasonably accessible to
the person on whose behalf the petition is brought. Health insurance
benefits that are not reasonable in cost or whose services are not
reasonably accessible to such person, shall be considered unavailable.
(3)[fn*] When the person on whose behalf the petition is brought is a
child in accordance with paragraph (c) of this subdivision, health
insurance benefits shall be considered "reasonable in cost" if the cost
of health insurance benefits does not exceed five percent of the combined
parental gross income. The cost of health insurance benefits shall refer
to the cost of the premium and deductible attributable to adding the
child or children to existing coverage or the difference between such
costs for self-only and family coverage. Provided, however, the
presumption that the health insurance benefits are reasonable in cost may
be rebutted upon a finding that the cost is unjust or inappropriate which
finding shall be based on the circumstances of the case, the cost and
comprehensiveness of the health insurance benefits for which the child or
children may otherwise be eligible, and the best interests of the child
or children. In no instance shall health insurance benefits be considered
"reasonable in cost" if a parent's share of the cost of extending such
coverage would reduce the income of that parent below the self-support
reserve. Health insurance benefits are "reasonably accessible" if the
child lives within the geographic area covered by the plan or lives
within thirty minutes or thirty miles of travel time from the child's
residence to the services covered by the health insurance benefits or
through benefits provided under a reciprocal agreement; provided,
however, this presumption may be rebutted for good cause shown
including, but not limited to, the special health needs of the child. The
court shall set forth such finding and the reasons therefor in the order
of support.
[fn*] NB Effective October 9, 2009
(c) When the person on whose behalf the petition is brought is a child,
the court shall consider the availability of health insurance benefits to
all parties and shall take the following action to ensure that health
insurance benefits are provided for the benefit of the child:
(1) Where the child is presently covered by health insurance benefits,
the court shall direct in the order of support that such coverage be
maintained, unless either parent requests the court to make a direction for
health insurance benefits coverage pursuant to paragraph two of this
subdivision.
(2) Where the child is not presently covered by health insurance
benefits, the court shall make a determination as follows:
(i) If only one parent has available health insurance benefits, the court
shall direct in the order of support that such parent provide health
insurance benefits.
(ii) If both parents have available health insurance benefits the court
shall direct in the order of support that either parent or both parents
provide such health insurance. The court shall make such determination
based on the circumstances of the case, including, but not limited to, the
cost and comprehensiveness of the respective health insurance benefits and
the best interests of the child.
(iii)[fn*] If neither parent has available health insurance benefits,
the court shall direct in the order of support that the custodial parent
apply for the state's child health insurance plan pursuant to title one-A
of article twenty-five of the public health law and the medical
assistance program established pursuant to title eleven of article five
of the social services law. If eligible for such coverage, the court
shall prorate the cost of any premium or family contribution in
accordance with paragraph (d) of this subdivision. A direction issued
under this subdivision shall not limit or alter either parent's
obligation to obtain health insurance benefits at such time as they
become available, as required pursuant to paragraph (a) of this
subdivision.
[fn*] NB Effective until October 9, 2009
(iii)[fn*] If neither parent has available health insurance benefits, the
court shall direct in the order of support that the custodial parent apply
for the state's child health insurance plan pursuant to title one-A of
article twenty-five of the public health law and the medical assistance
program established pursuant to title eleven of article five of the social
services law. A direction issued under this subdivision shall not limit or
alter either parent's obligation to obtain health insurance benefits at
such time as they become available, as required pursuant to paragraph (a)
of this subdivision. Nothing in this subdivision shall alter or limit the
authority of the medical assistance program to determine when it is
considered cost effective to require a custodial parent to enroll a child
in an available group health insurance plan pursuant to paragraphs (b) and
(c) of subdivision one of section three hundred sixty-seven-a of the social
services law.
[fn*] NB Effective October 9, 2009
(d)[fn*] The cost of providing health insurance benefits pursuant to
paragraph (c) of this subdivision 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. Where
the court finds that such proration is unjust or inappropriate, the
court shall:
(1) order the parties to pay such amount of the cost of health
insurance benefits as the court finds just and appropriate;
(2) add or subtract such amount in the manner set forth in this
subdivision; and
(3) set forth in the order the factors it considered, the amount of
each party's share of the cost and the reason or reasons the court did
not order such pro rata apportionment.
[fn*] NB Effective until October 9, 2009
(d)[fn*] The cost of providing health insurance benefits or benefits
under the state's child health insurance plan or the medical assistance
program, pursuant to paragraph (c) of this subdivision, shall be deemed
cash medical support, and the court shall determine the obligation of
either or both parents to contribute to the cost thereof pursuant to
subparagraph five of paragraph (c) of subdivision one-b of this section.
[fn*] NB Effective October 9, 2009
(e) The court shall provide in the order of support that the legally
responsible relative immediately notify the other party, or the other party
and the support collection unit when the order is issued on behalf of a
child in receipt of public assistance and care or in receipt of services
pursuant to section one hundred eleven-g of the social services law, of any
change in health insurance benefits, including any termination of benefits,
change in the health insurance benefit carrier, premium, or extent and
availability of existing or new benefits.
(f) Where the court determines that health insurance benefits are
available, the court shall provide in the order of support that the legally
responsible relative immediately enroll the eligible dependents named in
the order who are otherwise eligible for such benefits without regard to
any seasonal enrollment restrictions. Such order shall further direct the
legally responsible relative to maintain such benefits as long as they
remain available to such relative. Such order shall further direct the
legally responsible relative to assign all insurance reimbursement payments
for health care expenses incurred for his or her eligible dependents to the
provider of such services or the party actually having incurred and
satisfied such expenses, as appropriate.
(g) When the court issues an order of child support or combined child and
spousal support on behalf of persons in receipt of public assistance and
care or in receipt of services pursuant to section one hundred eleven-g of
the social services law, such order shall further direct that the provision
of health care benefits shall be immediately enforced pursuant to
section fifty-two hundred forty-one of the civil practice law and rules.
(h) When the court issues an order of child support or combined child and
spousal support on behalf of persons other than those in receipt of public
assistance and care or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall also issue a
separate order which shall include the necessary direction to ensure the
order's characterization as a qualified medical child support order as
defined by section six hundred nine of the employee retirement income
security act of 1974 (29 USC 1169). Such order shall: (i) clearly state
that it creates or recognizes the existence of the right of the named
dependent to be enrolled and to receive benefits for which the legally
responsible relative is eligible under the available group health plans,
and shall clearly specify the name, social security number and mailing
address of the legally responsible relative, and of each dependent to be
covered by the order; (ii) provide a clear description of the type of
coverage to be provided by the group health plan to each such dependent or
the manner in which the type of coverage is to be determined; and (iii)
specify the period of time to which the order applies. The court shall not
require the group health plan to provide any type or form of benefit or
option not otherwise provided under the group health plan except to the
extent necessary to meet the requirements of a law relating to medical
child support described in section one thousand three hundred and
ninety-six g of title forty-two of the United States code.
(i) Upon a finding that a legally responsible relative wilfully failed to
obtain health insurance benefits in violation of a court order, such
relative will be presumptively liable for all health care expenses incurred
on behalf of such dependents from the first date such dependents were
eligible to be enrolled to receive health insurance benefits after the
issuance of the order of support directing the acquisition of such
coverage.
(j) The order shall be effective as of the date of the application
therefor, and any retroactive amount of child support due shall be
support arrears/past due support and shall, except as provided for
herein, be paid in one lump sum or periodic sums, as the court shall
direct, taking into account any amount of temporary support which has
been paid. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit
pursuant to an execution for support enforcement as provided for in
subdivision (b) of section fifty-two hundred forty-one of the civil
practice law and rules, or in such periodic payments as would have been
authorized had such an execution been issued. In such case, the courts
shall not direct the schedule of repayment of retroactive support. Where
such direction is for child support and paternity has been established by
a voluntary acknowledgement of paternity as defined in section forty-one
hundred thirty-five-b of the public health law, the court shall inquire
of the parties whether the acknowledgement has been duly filed, and
unless satisfied that it has been so filed shall require the clerk of the
court to file such acknowledgement with the appropriate registrar within
five business days. Such direction may be made in the final judgment in
such action or proceeding, or by one or more orders from time to time
before or subsequent to final judgment, or by both such order or orders
and the final judgment. Such direction may be made notwithstanding that
the court for any reason whatsoever, other than lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding. Any
order or judgment made as in this section provided may combine in one
lump sum any amount payable to the custodial parent under this section
with any amount payable to such parent under section two hundred
thirty-six of this article. Upon the application of either parent, or of
any other person or party having the care, custody and control of such
child pursuant to such judgment or order, after such notice to the other
party, parties or persons having such care, custody and control and given
in such manner as the court shall direct, the court may annul or modify
any such direction, whether made by order or final judgment, or in case
no such direction shall have been made in the final judgment may, with
respect to any judgment of annulment or declaring the nullity of a void
marriage rendered on or after September first, nineteen hundred forty, or
any judgment of separation or divorce whenever rendered, amend the
judgment by inserting such direction. Subject to the provisions of
section two hundred forty-four of this article, no such modification or
annulment shall reduce or annul arrears accrued prior to the making of
such application unless the defaulting party shows good cause for failure
to make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification may
increase such child support nunc pro tunc as of the date of application
based on newly discovered evidence. Any retroactive amount of child
support due shall be support arrears/past due support and shall be paid
in one lump sum or periodic sums, as the court shall direct, taking into
account any amount of temporary child support which has been paid. In
addition, such retroactive child support shall be enforceable in any
manner provided by law including, but not limited to, an execution for
support enforcement pursuant to subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules.
1-a. In any proceeding brought pursuant to this section to determine
the custody or visitation of minors, a report made to the statewide
central register of child abuse and maltreatment, pursuant to title six
of article six of the social services law, or a portion thereof, which is
otherwise admissible as a business record pursuant to rule forty-five
hundred eighteen of the civil practice law and rules shall not be
admissible in evidence, notwithstanding such rule, unless an
investigation of such report conducted pursuant to title six of article
six of the social services law has determined that there is some credible
evidence of the alleged abuse or maltreatment and that the subject of the
report has been notified that the report is indicated. In addition, if
such report has been reviewed by the state commissioner of social
services or his designee and has been determined to be unfounded, it
shall not be admissible in evidence. If such report has been so reviewed
and has been amended to delete any finding, each such deleted finding
shall not be admissible. If the state commissioner of social services or
his designee has amended the report to add any new finding, each such new
finding, together with any portion of the original report not deleted by
the commissioner or his designee, shall be admissible if it meets the
other requirements of this subdivision and is otherwise admissible as a
business record. If such a report, or portion thereof, is admissible in
evidence but is uncorroborated, it shall not be sufficient to make a fact
finding of abuse or maltreatment in such proceeding. Any other evidence
tending to support the reliability of such report shall be sufficient
corroboration.
1-b. (a) 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 (f) 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:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments;
(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:
(A) 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:
(A) 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:
(A) 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 that
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, provided the order or agreement provides 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,
(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,
(F) 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.
(6) "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)[fn*] The court shall multiply the combined parental income up to
eighty thousand dollars 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.
[fn*] NB Effective until January 31, 2010
(2)[fn*] 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.
[fn*] NB Effective January 31, 2010
(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 (f) 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)[fn*] The court shall prorate each parent's share of future reasonable
health care expenses of the child not covered by insurance in the same
proportion as each parent's income is to the combined parental income.
The non-custodial parent's pro rata share of such health care expenses
shall be paid in a manner determined by the court, including direct
payment to the health care provider.
[fn*] NB Effective until October 9, 2009
(5)[fn*] 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:
(A) 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 twoparent
household with income equal to the combined income of the noncustodial 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 (A) 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 twoparent household with
income equal to the combined income of the noncustodial 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
noncustodial 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 (A) or (B) of this clause, provided that the amount that the
noncustodial parent is ordered to pay under this item shall not exceed
five percent of his or her gross income or the difference between the
noncustodial 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
selfsupport 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 (f) of this subdivision, the court
shall:
(A) 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.
[fn*] NB Effective October 9, 2009
(6) 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 or the difference
between the non-custodial parent's income and the self-support reserve,
whichever is greater. 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.
(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 (f) 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.
(f) 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;
(6) 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. In no
instance shall the court order child support below twenty-five dollars per
month. 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 h