Long Island Family Law and Mediation Blog
For child support cases proceeding in a New York Family Court, the court, pursuant to statute, should make a temporary child support order, while the case is ongoing, of an amount that is enough to meet the needs of the child. According to the law, this should be done regardless of whether immediacy or an urgent need is shown. The law provides that even if the financial disclosure, which is required to be provided ultimately in the case, has not been yet provided, that the court should still enter the order. If the information that would be on the financial disclosure is already provided at the time the temporary order would be entered, such as income and assets of the respondent or the parent that should be paying child support, then the court should make the temporary child support order in accordance with the child support standards act formula. If the information is not yet available, then the child support amount to be paid should be based on the child(ren)’s needs.
Ultimately, when the child support order is finalized, the court needs to make the final order according to the child support standards act formula, unless an acceptable agreement is made for a different amount between the parties. The payor would then be given credit for any payments made under the temporary child support order that was in existence prior to the finalization of the case. At times, the temporary order might have been in an amount more than the final order. If that were the case, then the payor parent might have a credit against future support payments. The court is to make the amount of child support due under the final order retroactive to the filing date of the petition for child support. In cases where public assistance was involved, the order can go retroactive to the date that public assistance started. Often times there are arrears for child support due at the time the final order was made. The arrears may be because of the retroactive date that child support is due from or as a result of the possibility that the temporary child support order was lower than the final order. Both reasons might be applicable. Arrears, as well as the ongoing support payments, will need to be paid to the residential custodial parent as the child support order continues.
A question often arises, what should a court do with child support while a custody case is not yet resolved? If there is no ruling yet on custody, then who should pay and who should receive child support? The Court of Appeals, the highest court in New York State, has held that even in cases of “shared” custody that the parent who has the child the majority of the time shall be deemed the custodial parent for child support purposes. Thus, it can be argued that while the case is pending, the parent that has the child the majority of the time should receive a temporary child support order. The custodial residence of the child was also held to be where the child sleeps the majority of the time. Time spent during waking hours does not override where the child sleeps.
The Appellate Division in the First Judicial Department in New York has ruled that the residential custodial parent cannot be ordered to pay the non-residential custodial parent child support. The Second Department has held that despite there being a court order of “shared” custody or equal time, that when the circumstances have changed so that the child is no longer residing with the parent’s equally, then the one with which the child resides primarily becomes the “de-facto” custodial parent. In that case, the court ruled that even though the parties never modified the custody order, the de-facto custodial parent was entitled to child support and should not be paying child support. In cases of actual equal time, the law in New York is that the monied parent, or the parent with the higher income, shall be deemed the non-custodial parent for child support purposes and should pay guideline child support. Of course there are factors that can be used to argue that there should be a deviation from the guideline child support amount as well as debate on whether there should be child support for combined parental income above the initial threshold amount (which at the time of this blog is $141,000.00).
Based on the foregoing principles then, what should happen with child support when there is a custody order in favor of the mother being the residential custodial parent, which gets altered during a custody hearing so that the father then has parenting time a majority of the time as a temporary order? My feeling is that a strong argument can be made that the father’s prior child support obligation to the mother should be terminated, in that instance, and a temporary order of support be issued to the father pending a final determination of the child custody and child support case. Since the father in that case is the de-facto custodial parent, based on one view of the case precedents, a lawyer can argue that he needs to receive child support from the mother and should not have his own ongoing obligation.
The counter-argument, which might be accepted by a court, is that the residential custody order was only temporarily modified and therefore child support should not be modified unless and until there is a final order modifying custody. A Support Magistrate could be forced to rule on that debate in a Family Court child support proceeding involving the aforementioned facts. If one side disagrees with the temporary ruling that the Support Magistrate makes or declines to make, the party might be without a remedy until a final order is made as written objections to a Support Magistrate’s ruling, according to the statute are only to be made to final orders.
Child support and other family law matters are often not as straight forward as one may think. Please click around our blog and website for more information on family law and matrimonial matters. As always, feel free to contact us about your free initial consultation. It would be our please to talk to you about it.