In New York, at what age is the liability of support for children released?
Full Question:
I have been told that a parent is required to fully support their child in terms of living expenses, i.e. food and shelter until the age of twenty-four. Under New York statutes, is this true?
06/23/2007 |
Category: Minors » Age of Major... |
State: New York |
#6631
Answer:
The applicable New York statutes are as follows:
§ 240 Dom. Rel. Custody and child support; orders of protection.
1. (a) 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. 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.
(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.
(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) 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.
(d) 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.
(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 U.S.C. § 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) 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.
(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) 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.
(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 hundred dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered into
between the parties after the effective date of this subdivision presented
to the court for incorporation in an order or judgment shall include a
provision stating that the parties have been advised of the provisions of
this subdivision, and that the basic child support obligation provided for
therein would presumptively result in the correct amount of child support
to be awarded. In the event that such agreement or stipulation deviates
from the basic child support obligation, the agreement or stipulation must
specify the amount that such basic child support obligation would have been
and the reason or reasons that such agreement or stipulation does not
provide for payment of that amount. Such provision may not be waived by
either party or counsel. Nothing contained in this subdivision shall be
construed to alter the rights of the parties to voluntarily enter into
validly executed agreements or stipulations which deviate from the basic
child support obligation provided such agreements or stipulations comply
with the provisions of this paragraph. The court shall, however, retain
discretion with respect to child support pursuant to this section. Any
court order or judgment incorporating a validly executed agreement or
stipulation which deviates from the basic child support obligation shall
set forth the court's reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall not
enter an order or judgment other than a temporary order pursuant to section
two hundred thirty-seven of this article, that includes a provision for
child support unless the unrepresented party or parties have received a
copy of the child support standards chart promulgated by the commissioner
of social services pursuant to subdivision two of section one hundred
eleven-i of the social services law. Where either party is in receipt of
child support enforcement services through the local social services
district, the local social services district child support enforcement unit
shall advise such party of the amount derived from application of the child
support percentage and that such amount serves as a starting point for the
determination of the child support award, and shall provide such party with
a copy of the child support standards chart. In no instance shall the court
approve any voluntary support agreement or compromise that includes an
amount for child support less than twenty-five dollars per month.
(j) In addition to financial disclosure required in section two hundred
thirty-six of this article, the court may require that the income and/or
expenses of either party be verified with documentation including, but not
limited to, past and present income tax returns, employer statements, pay
stubs, corporate, business, or partnership books and records, corporate and
business tax returns, and receipts for expenses or such other means of
verification as the court determines appropriate. Nothing herein shall
affect any party's right to pursue discovery pursuant to this chapter, the
civil practice law and rules, or the family court act.
(k) When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall order
child support based upon the needs or standard of living of the child,
whichever is greater. Such order may be retroactively modified upward,
without a showing of change in circumstances.
(l) In any action or proceeding for modification of an order of child
support existing prior to the effective date of this paragraph, brought
pursuant to this article, the child support standards set forth in this
subdivision shall not constitute a change of circumstances warranting
modification of such support order; provided, however, that (1) where the
circumstances warrant modification of such order, or (2) where any party
objects to an adjusted child support order made or proposed at the
direction of the support collection unit pursuant to section one hundred
eleven-h or one hundred eleven-n of the social services law, and the court
is reviewing the current order of child support, such standards shall be
applied by the court in its determination with regard to the request for
modification, or disposition of an objection to an adjusted child support
order made or proposed by a support collection unit. In applying such
standards, when the order to be modified incorporates by reference or
merges with a validly executed separation agreement or stipulation of
settlement, the court may consider, in addition to the factors set forth in
paragraph (f) of this subdivision, the provisions of such agreement or
stipulation concerning property distribution, distributive award and/or
maintenance in determining whether the amount calculated by using the
standards would be unjust or inappropriate.
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or custody
to a person who has been convicted of murder in the first or second degree
in this state, or convicted of an offense in another jurisdiction which, if
committed in this state, would constitute either murder in the first or
second degree, of a parent, legal custodian, legal guardian, sibling,
half-sibling or step-sibling of any child who is the subject of the
proceeding. Pending determination of a petition for visitation or custody,
such child shall not visit and no person shall visit with such child
present, such person who has been convicted of murder in the first or
second degree in this state, or convicted of and offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, of a parent, legal custodian , legal
guardian, sibling, half-sibling or step-sibling of a child who is the
subject of the proceeding without the consent of such child's custodian or
legal guardian.
(b) Notwithstanding paragraph (a) of this subdivision a court may order
visitation or custody where:
(i)(A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent, the child's
custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of such
murder; and
(ii) the court finds that such visitation or custody is in the best
interests of the child.
(c) For the purpose of making a determination pursuant to clause (C) of
subparagraph (i) of paragraph (b) of this subdivision, the court shall not
be bound by the findings of fact, conclusions of law or ultimate conclusion
as determined by the proceedings leading to the conviction of murder in the
first or second degree in this state or of an offense in another
jurisdiction which, if committed in this state, would constitute murder in
either the first or second degree, of a parent, legal guardian, legal
custodian, sibling, half-sibling or stepsibling of a child who is the
subject of the proceeding. in all proceedings under this section, a law
guardian shall be appointed for the child.
2. (a) An order directing payment of money for child support shall be
enforceable pursuant to section fifty-two hundred forty-one or fifty-two
hundred forty-two of the civil practice law and rules or in any other
manner provided by law. Such orders or judgments for child support and
maintenance shall also be enforceable pursuant to article fifty-two of
the civil practice law and rules upon a debtor's default as such term is
defined in paragraph seven of subdivision (a) of section fifty-two
hundred forty-one of the civil practice law and rules. The establishment
of a default shall be subject to the procedures established for the
determination of a mistake of fact for income executions pursuant to
subdivision (e) of section fifty-two hundred forty-one of the civil
practice law and rules. For the purposes of enforcement of child support
orders or combined spousal and child support orders pursuant to section
five thousand two hundred forty-one of the civil practice law and rules,
a "default" shall be deemed to include amounts arising from retroactive
support.
b. (1) 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
direct that the child support payments be made to the support collection
unit. Unless (i) the court finds and sets forth in writing the reasons that
there is good cause not to require immediate income withholding; or (ii)
when the child is not in receipt of public assistance, a written agreement
providing for an alternative arrangement has been reached between the
parties, the support collection unit shall issue an income execution
immediately for child support or combined maintenance and child support,
and may issue an execution for medical support enforcement in accordance
with the provisions of the order of support. Such written agreement may
include an oral stipulation made on the record resulting in a written
order. For purposes of this paragraph, good cause shall mean substantial
harm to the debtor. The absence of an arrearage or the mere issuance of an
income execution shall not constitute good cause. When an immediate income
execution or an execution for medical support enforcement is issued by the
support collection unit, such income execution shall be issued pursuant to
section five thousand two hundred forty-one of the civil practice law and
rules, except that the provisions thereof relating to mistake of fact,
default and any other provisions which are not relevant to the issuance of
an income execution pursuant to this paragraph shall not apply; provided,
however, that if the support collection unit makes an error in the issuance
of an income execution pursuant to this paragraph, and such error is to the
detriment of the debtor, the support collection unit shall have thirty days
after notification by the debtor to correct the error. Where permitted
under federal law and where the record of the proceedings contains such
information, such order shall include on its face the social security
number and the name and address of the employer, if any, of the person
chargeable with support; provided, however, that failure to comply with
this requirement shall not invalidate such order. When the court determines
that there is good cause not to immediately issue an income execution or
when the parties agree to an alternative arrangement as provided in this
paragraph, the court shall provide expressly in the order of support that
the support collection unit shall not issue an immediate income execution.
Notwithstanding any such order, the support collection unit shall issue an
income execution for support enforcement when the debtor defaults on the
support obligation, as defined in section five thousand two hundred
forty-one of the civil practice law and rules.
(2) 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 or in receipt of services pursuant to section one hundred
eleven-g of the social services law, the court shall issue an income
deduction order pursuant to subdivision (c) of section five thousand two
hundred forty-two of the civil practice law and rules at the same time it
issues the order of support. The court shall enter the income deduction
order unless the court finds and sets forth in writing (i) the reasons that
there is good cause not to require immediate income withholding; or (ii)
that an agreement providing for an alternative arrangement has been reached
between the parties. Such agreement may include a written agreement or an
oral stipulation, made on the record, that results in a written order. For
purposes of this paragraph, good cause shall mean substantial harm to the
debtor. The absence of an arrearage or the mere issuance of an income
deduction order shall not constitute good cause. Where permitted under
federal law and where the record of the proceedings contains such
information, such order shall include on its face the social security
number and the name and address of the employer, if any, of the person
chargeable with support; provided, however, that failure to comply with
this requirement shall not invalidate the order. When the court determines
that there is good cause not to issue an income deduction order immediately
or when the parties agree to an alternative arrangement as provided in this
paragraph, the court shall provide expressly in the order of support the
basis for its decision and shall not issue an income deduction order.
c. Any order of support issued on behalf of a child in receipt of family
assistance or child support enforcement services pursuant to section one
hundred eleven-g of the social services law shall be subject to review and
adjustment by the support collection unit pursuant to section one hundred
eleven-n of the social services law. Such review and adjustment shall be in
addition to any other activities undertaken by the support collection unit
relating to the establishment, modification, and enforcement of support
orders payable to such unit.
3. Order of protection. a. The court may make an order of protection in
assistance or as a condition of any other order made under this section.
The order of protection may set forth reasonable conditions of behavior to
be observed for a specified time by any party. Such an order may require
any party:
(1) to stay away from the home, school, business or place of employment
of the child, other parent or any other party, and to stay away from any
other specific location designated by the court;
(2) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(3) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of the criminal procedure law, or any
criminal offense against the child or against the other parent or against
any person to whom custody of the child is awarded or from harassing,
intimidating or threatening such persons;
(4) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in a proceeding or action under this chapter or the family court act;
or
(5) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child.
(6) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced.
(7) to observe such other conditions as are necessary to further the
purposes of protection.
b. An order of protection entered pursuant to this subdivision shall bear
in a conspicuous manner, on the front page of said order, the language
"Order of protection issued pursuant to section two hundred forty of the
domestic relations law". The absence of such language shall not affect the
validity of such order. The presentation of a copy of such an order to any
peace officer acting pursuant to his or her special duties, or police
officer, shall constitute authority, for that officer to arrest a person
when that person has violated the terms of such an order, and bring such
person before the court and, otherwise, so far as lies within the officer's
power, to aid in securing the protection such order was intended to afford.
c. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action or in a proceeding to
obtain custody of or visitation with any child under this section, or by
one or more orders from time to time before or subsequent to final
judgment, or by both such order or ord
