2006 New York Code - Parents\' Duty To Support Child.

 
    §  413.  Parents'  duty to support child. 1. (a) Except as provided in
  subdivision two of this section, the parents of a child under the age of
  twenty-one years are chargeable with the support of such child  and,  if
  possessed  of  sufficient  means  or  able  to earn such means, shall be
  required to pay for child support a fair and reasonable sum as the court
  may determine. 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,  including  but  not limited to section four hundred
  fifteen of this act, 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 four
  hundred twenty-four-a 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


  paragraphs (a) through (k) of  this  subdivision  shall  not  constitute
  grounds  for 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.
    2. Nothing in this article shall impose any liability upon a person to
  support  the  adopted  child  of  his  or  her spouse, if such child was
  adopted after the adopting spouse is living separate and apart from  the
  non-adopting  spouse  pursuant  to  a  legally  recognizable  separation
  agreement or decree under the domestic  relations  law.  Such  liability
  shall  not  be  imposed  for  so long as the spouses remain separate and
  apart after the adoption.
    3. a. One-time adjustment of child  support  orders  issued  prior  to
  September  fifteenth, nineteen hundred eighty-nine. Any party to a child
  support order issued prior  to  September  fifteenth,  nineteen  hundred
  eighty-nine  on the behalf of a child in receipt of public assistance or
  child support services pursuant to section one hundred eleven-g  of  the
  social  services  law  may  request  that  the  support  collection unit
  undertake one review of the order for adjustment  purposes  pursuant  to
  section  one  hundred  eleven-h of the social services law. A hearing on
  the adjustment of such order shall be  granted  upon  the  objection  of
  either  party pursuant to the provisions of this section. An order shall
  be adjusted if as of the date of the support collection unit's review of
  the correct amount of  child  support  as  calculated  pursuant  to  the
  provisions  of  this  section would deviate by at least ten percent from
  the child support ordered in the last permanent  support  order  of  the
  court.  Additionally, a new support order shall be issued upon a showing
  that the current order of support does not provide for the  health  care
  needs  of  the  child through insurance or otherwise. Eligibility of the
  child for medical  assistance  shall  not  relieve  any  obligation  the
  parties  otherwise  have  to  provide  for  the health care needs of the
  child. The support collection unit's review of  a  child  support  order
  shall  be made on notice to all parties to the current support order and
  shall be subject to the provisions of section four hundred twenty-four-a
  of this article. Nothing herein shall be deemed in  any  way  to  limit,
  restrict,  expand  or  impair  the  rights  of  any  party to file for a
  modification of a child support order as is otherwise provided by law.
    b. Upon receipt of an  adjustment  finding  and  where  appropriate  a
  proposed  order in conformity with such finding filed by either party or
  by the support collection unit, a party shall have thirty-five days from
  the date of mailing of the  adjustment  finding  and  proposed  adjusted
  order,  if  any,  to  submit  to  the  court identified thereon specific
  written objections to such finding and proposed order.
    (1) If specific written objections are submitted by either party or by
  the support collection unit, a hearing shall be scheduled by  the  court


  on notice to the parties and the support collection unit, who shall have
  the  right  to be heard by the court and to offer evidence in support of
  or in opposition to adjustment of the support order.
    (2)  The  party  filing the specific written objections shall bear the
  burden of going forward and the burden of proof; provided, however, that
  if the support collection unit has failed to provide  the  documentation
  and  information required by subdivision fourteen of section one hundred
  eleven-h of the social services law, the court shall first  require  the
  support collection unit to furnish such documents and information to the
  parties and the court.
    (3)  If  the  court  finds by a preponderance of the evidence that the
  specific  written  objections  have  been  proven,   the   court   shall
  recalculate  or readjust the proposed adjusted order accordingly or, for
  good cause, shall remand the order to the support  collection  unit  for
  submission  of  a  new  proposed adjusted order. Any readjusted order so
  issued by the court  or  resubmitted  by  the  support  collection  unit
  following  remand  by  the  court  shall be effective as of the date the
  proposed adjusted  order  would  have  been  effective  had  no  written
  objections been filed.
    (4)  If  the court finds that the specific written objections have not
  been proven  by  a  preponderance  of  the  evidence,  the  court  shall
  immediately issue the adjusted order, which shall be effective as of the
  date  the order would have been effective had no written objections been
  filed.
    (5) If the determination of the specific written objections  has  been
  made  by  a  family  court  support  magistrate,  the  parties  shall be
  permitted to obtain judicial review  of  such  determination  by  filing
  timely  written  objections  pursuant to subdivision (e) of section four
  hundred thirty-nine of this act.
    (6) If the court  receives  no  specific  written  objections  to  the
  support  order  within  thirty-five  days of the mailing of the proposed
  order, the clerk of the court shall immediately issue the order  without
  any  further review, modification, or other prior action by the court or
  any judge or support magistrate thereof, and the clerk shall immediately
  transmit copies of the order of  support  to  the  parties  and  to  the
  support collection unit.
    c.  A  motion  to vacate an order of support adjusted pursuant to this
  section may be made no later than  forty-five  days  after  an  adjusted
  support  order  is  executed  by  the  court  where  no specific written
  objections to the proposed order have been timely received by the court.
  Such motion shall be granted only upon  a  determination  by  the  court
  issuing  such  order  that personal jurisdiction was not timely obtained
  over the moving party.
    4. On-going cost of living adjustment of child support  orders  issued
  prior to September fifteenth, nineteen hundred eighty-nine. Any party to
  a  child  support  order  issued  prior to September fifteenth, nineteen
  hundred eighty-nine on the behalf  of  a  child  in  receipt  of  public
  assistance  or  child  support  services pursuant to section one hundred
  eleven-g of the  social  services  law  may  request  that  the  support
  collection  unit  review  the  order  for a cost of living adjustment in
  accordance with the provisions of section  four  hundred  thirteen-a  of
  this article.