New York State Bar Association

Children and the Law Committee

January 27, 2006

 

 

CHILD SUPPORT AND RESPONSIBILITIES FOR OTHER CHILDREN

Judith M. Reichler Esq.

 

 

            There are two instances in which the Child Support Standards Act (“CSSA”) addresses the needs of a parent’s other children when establishing child support.  The first is found in the section for determining income.1   The second is found in the factors for deviating from the presumptive basic child support obligation.2

 

DEDUCTION FROM INCOME

            When determining a parent’s income, so that a child support obligation can be ordered, the court may deduct from the income child support that parent actually pays, pursuant to court order or a written agreement, on behalf of a child whom the parent has a legal duty to support and who is not subject to the action.

            In order for a parent to receive the benefit of the deduction, all of these elements must be met:

1.                                                      the order must have been made prior to the filing of the subject application;

           

2.                                                      the prior child support obligation must have been memorialized in a court order or a written agreement;

           

3.                                                      the obligation must be for the support of a child the parent has a legal obligation to support (not stepchildren or someone else’s children);

           

4.                                                      only the amount of the obligation that is actually being paid will be deducted; and

             

5.                                                      portions of payments that represent arrears would not be deducted, because these payments are for past failures to pay, not the ongoing obligation.

 

            Courts are vigilant to guard against fraud in this area and will not allow a deduction from income of an obligation that was manufactured in order to reduce the support requirements of the subject application.  For example, one court refused to deduct from the noncustodial parent's income a large order he had obtained to support his wife and two children (with whom he had since "reconciled").  It also reasoned that the ongoing support of his wife and marital children was properly considered as among his "expenses of maintaining his current household."  Mary V.G. v. James X.S., 641 NYS2d 711 (2d Dept. 1996).

            This provision of the CSSA is not unconstitutional even if it penalizes children of intact homes by preventing their parents from deducting the support of those children from income attributed for purposes of establishing support for another child.  This is because of the deviation permitted by the CSSA if the court finds that application of the statutory percentage to parental income would be unjust or inappropriate.  Susan M. v. Louis V., 614 NYS2d 584 (3d Dept. 1994).

 

FACTOR FOR DEVIATION FROM THE PRESUMPTIVE AMOUNT

            The other provision that considers a parent’s support obligation for other children  is contained as factor 8 of the so-called “paragraph f” factors.  This factor would permit the noncustodial parent to assert the needs of his or her other children to receive a reduction from the presumptive child support obligation.  This factor would be useful for a parent who is supporting other children, but not pursuant to a written agreement or court order.  It is not a statutory deduction from income, but may be used as a factor in determining whether the presumptive amount is unjust or inappropriate.

            This factor addresses the commonly encountered “second-family,” or “multiple-family,” situation, where the noncustodial parent has re-married, or at least re-coupled, and started (at least) one other family.  No child support is being paid, pursuant to a written agreement or court order, but the parent asserts a need to support this second, or third, family.

            The law in New York is well settled that a support obligor can’t avoid obligations to children of a previous marriage or relationship by voluntarily undertaking the financial burdens of another family.   Yet the expenses of another family are often given by the noncustodial parent as a reason the court should make a lowered child support order.  The legislature was not unmindful of the needs of these children and provided a factor which would allow the court to lower the amount of the order to take into consideration these additional children.

            As with deduction of an order from income, this factor may result in a reduction from the presumptive amount only if all the elements in the factor are met:

 

1.                                                      The children must be the children of that parent, and not stepchildren or someone else’s children;

           


 

1.                                                      The financial resources of any other person obligated to support the other children (usually the new spouse or mate) must also be considered; and

           

2.                                                      The factor may reduce the parent’s support obligation only if the resources available to support those children are less than the resources available to support the children who are subject to the action.

           

            The two most over-looked elements in this factor are the requirement that the financial resources of the children’s other parent be reviewed, and that a reduction in child support be considered only if the resources available to support the other children are less than the resources available to support the children who are subject to the application. See, for example, North Guilford County o/b/o Sanders v. Campbell,3 where the court remanded because “there was no indication that the resources available to support [respondent’s other children] are less than the resources available to support [the subject child].”4  A similar result was reached in Meyers v. Cicci,5 where the appellate court disallowed a deduction where

There has been “no showing that the resources available to support respondent’s children from his subsequent marriage are less than those available to support the child who is the subject of the instant proceeding.  In fact, the record indicates the contrary.  Consequently, respondent’s reliance on [this factor] is unfounded. . . [H]is wife’s sources of income, if any, have not been elucidated on the record.6

            These are the only provisions in the CSSA for other children.  No other method is allowed.  It would never be appropriate, for example, to combine the number of children in all households, set the amount of child support at the level for that many children, and divide the support equally among the children.7

            It bear mentioning, however, that there is no similar opportunity to consider other children supported by the custodial parent.  Where there may be a parallel need for the court to take into consideration the custodial parent’s other obligations, this could be done under the “catch-all” factor 10, which allows the court to consider “any other factors the court determines are relevant in each case.”8                   

 

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Last updated January 12, 2006

 

 

           


1DRL 240(1-b)(b)(vii)(D); FCA 413(1)(b)(vii)(D).

2DRL 240(1-b)(f)(9); FCA 413(1)(f)(9).

3305 AD2d 686 (2nd Dept 2003).  See also Picciullo v. Collein, 226 AD2d 643 (2d Dept. 1996).

4305 AD2d at 687.

5233 AD2d 723 (3rd Dept 1996).

6233 AD2d at 724.

7Assemblywoman Helene Weinstein, Explaining Rationale for Support Standards, NYLJ, Aug. 8, 1990, p. 2, col. 6).

8DRL 240(1-b)(f)(10); FCA 413(1)(f)(10).