THE BASICS

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THE BASICS
Getting Child Support
in New York State

THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

Because mothers are more often the custodial parents, this booklet assumes
that the mother will be seeking court-ordered child support. However,
fathers who have custody can use this guide too.


WHO IS REQUIRED TO PAY CHILD SUPPORT?

Both parents must financially support their children until the children are
21 years old. This includes parents who adopt children and stepparents.
If a child “becomes emancipated” before reaching 21 years, the parents
no longer have to support that child. (Emancipation is explained later in
this booklet.)

Stepparents have to support their stepchildren only if the step-children will
have to go on public assistance (welfare) without their support. However,
a stepparent doesn’t have to pay support if the biological parent of the
children divorces the stepparent or dies.


WHEN CAN I GET A COURT ORDER FOR CHILD SUPPORT?

If you have custody (the custodial parent), you can get child support from
the father (the non-custodial parent). This is true even if you and your
child’s father were never married and even if you were the one responsible
for breaking up with him.

You can get child support even if you have enough money to support the
child on your own. You can also get child support even if you and the father
are still married and living together, if he is refusing to help pay for the
child’s bills.

You can get child support from a man you never married. However, in that
case, he must have signed an Acknowledgment of Paternity (which says he
knows he is the father) at the hospital when the child was born, or later. If
he did not sign this document, you first have to take him to court and prove
that he is the father. You have to do this even if the man you say is the
father signed the child’s birth certificate and even if he gave the child
his last name.
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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

If both parents have joint legal custody of the child, the parent who
has the child most of the time can get child support.


HOW DO I APPLY FOR CHILD SUPPORT IF I AM THE
CUSTODIAL PARENT?

Usually, you ask for child support in Family Court in the county where
you and the child live. You can also go for child support in the county
where the father lives.

You do not need a lawyer to get child support. It can be a fairly simple
process in Family Court. You may also be able to use the services of
he Support Collection Unit to help you get child support.


WHAT DOES THE SUPPORT COLLECTION UNIT (SCU) DO?

This is a government agency that does many helpful things to get you
child support.

When you arrive in the Family Court building, go to SCU. SCU will
interview you and ask you if you want them to help you. If you are
receiving public assistance, you must use the services of SCU.

Some of the things SCU does are:

! File the child support case for you.

! Help you find the father of your child.

! Help you find out where he is employed.

! Help you prove that the man you say is your child’s father
really is the father.

! Collect the child support payments from the father and give
the money to you.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

! Get any late payments. SCU will collect directly from the father’s
employer, if they have to.


The problem with using SCU is that, if the payments are paid through them,
you will get the money a little later than if the payments are paid directly to
you.

If you receive public assistance, SCU services are free of charge. If you do
not receive public assistance, you pay SCU if they are successful in getting
you child support. Their fee comes out of the child support payments.

NOTE: If you need to keep your address confidential so that an abusive
father of your child cannot find you, do not give SCU your home or
work address. Instead, give SCU the address of a person you trust who
lives or works in another county or state. Ask this person to forward
your checks to you and have this person promise not to give out your
address to SCU or anyone else.


WHAT HAPPENS WHEN I FILE A CHILD SUPPORT PETITION IN
FAMILY COURT?

The clerk of the Court will help you fill out a petition. You do not need to
bring the father to Court on the day you file your petition.
The petition is your request for Family Court to order the father to
pay child support.

After you have filed your petition, the Court will set a date when you and
the father of the child both have to go to Court. This date is often called the
return date, or the adjourn date, or the hearing date. When you return, a
Support Magistrate (usually) or a Judge will hear the case. A Support
Magistrate takes the place of a Judge in most child support cases.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

At the time you first file your petition, you will be given two copies of the
summons and two copies of the petition. Make sure that the clerk gives you
a financial disclosure affidavit, too.


HOW DOES THE FATHER KNOW THAT I AM ASKING FOR HIM
TO PAY CHILD SUPPORT?

It is up to you to make sure that the father gets a copy of the summons, the
petition and the financial disclosure affidavit. But you can’t give these court
papers to him personally. You must get someone else to serve him.
When the court papers are given to the father, this is called
serving him with the papers.



WHAT IS THE CORRECT WAY TO SERVE THE FATHER WITH
COURT PAPERS?

Who:
Anyone who is over the age of 18 who is not involved in the court
case can serve the papers.

What: This person must hand the court papers personally to the father. The
papers the father needs to get are the summons, the petition and the financial
disclosure affidavit.

When: This cannot happen on a Sunday or a holiday. It must happen no
later than 8 days before you have to appear in court.

The person you get to serve the court papers must sign an affidavit of service
in front of a notary public. This paper describes the father of the child and
explains what happened when the father received the court papers.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

An affidavit of service is a sworn statement of the person who
delivered the papers that the father got the court papers.

On the day you have to appear in court, you have to give them the completed
affidavit of service.

If the person who is serving the court papers for you is having problems
finding the father, this person can give you an affidavit (a sworn, notarized
statement) telling how and when s/he tried to find and serve the father. The
Support Magistrate will then decide if you can have the papers served on the
father by mail or some other way.

Sometimes, SCU will serve the father of your child with the court papers, so
that you do not have to do it.


WHAT IF THE FATHER DOES NOT GO TO COURT ON THE
HEARING DATE?


If you have submitted an affidavit of service showing that he received
notice of the case, you can get a final order of support without the father
being present.

Or, if you ask, the Support Magistrate will make a temporary order of
support. At that time, the Support Magistrate can make a warrant to arrest
the father so they can bring him to court. The Support Magistrate can also
send the father another summons and not arrest him, so that he can come
to court voluntarily.


HOW DO THEY DECIDE HOW MUCH CHILD SUPPORT I GET?

The Child Support Standards Act (CSSA) is the law in New York State
that tells the amount of child support a father must pay.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

The amount you get depends on what the father’s income is, what your
income is, how many children you have together, and what your children’s
basic needs are.

The Support Magistrate will look at the information in your financial
disclosure affidavit and the father’s financial disclosure affidavit, if he
supplies one. The Support Magistrate might also ask you and the father
to answer questions. And you and he might be asked to give the Support
Magistrate other evidence of your income and expenses.

Both parents’ incomes are used to figure out how much child support the
father has to pay because both parents have to support their children.

This is how they decide:



Deduct (subtract) these things from each parent’s income:
― alimony or maintenance paid to a former husband or wife
― child support paid to other children by court order
― public assistance and supplemental security income (SSI)
― city taxes
― social security and medicare taxes (FICA)



Combine (add) the incomes of both parents after making those
deductions, and multiply the total you get by the correct percentage:
17% for one child
25% for two children
29% for three children
31% for four children
not less than 35% for five children or more

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE


Divide the figure you get between both parents according to both your
incomes (on a “pro rata” basis). This means that if the father earns
twice as much as you, he must pay twice as much child support.

The father will have to pay additional amounts for child care, if you are
working or going to school. He also pays more for medical care not covered
by insurance, and educational expenses for your child.

Sometimes Support Magistrates use a short cut. They look at the father’s
child support income (his income after local taxes, FICA, etc.) and multiply
it by the correct child support percentage (17% for one child, 25% for two
children, and so forth).

If paying this amount will make the father’s income be under the federal
poverty level, then he will only have to pay $25 per month.

$25 per month is the minimum amount allowed under the CSSA.

If the father is unemployed (and not receiving unemployment benefits) or is
receiving public assistance, you are still entitled to child support, but only
$25 per month, no matter how many children you have with him. If you
later learn that the father is working (or receiving unemployment benefits),
you can go back to Family Court to seek an upward modification of your
support order. (This process is described later in this booklet.)


CAN I GET CHILD SUPPORT WITHOUT GOING TO COURT?

You and the father of your child can make a written agreement about how
much child support you will receive. If you do this, though,


The amount that you agree on can’t be less than $25 per month.


The agreement must say that both of you know the CSSA rules.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE


The agreement must also say that both of you know how much
the basic child support amount would be in your case.


If the amount you agree on is different from what you would have
under the CSSA, the agreement must explain why you agreed to
the different amount.

If you don’t have an attorney, you have to have a copy of a chart that says
how much the CSSA amount of support would be in your case.

If your written agreement does not meet all of these requirements, a Court
can refuse to use it.

If you want to make sure the Court will enforce your agreement, you should
file a petition in Family Court and get your agreement marked “so ordered”
by a Judge. Then if the father doesn’t pay what he has agreed to pay, you
can go back to Court and ask the Judge to order him to pay what he agreed
to pay.


HOW CAN I GET FINANCIAL INFORMATION FROM
THE FATHER?

If you don’t know what the father’s income is, you should ask the Support
Magistrate to make the father give the court a statement of net worth. You
will have to complete one, too.
The statement of net worth, also called a financial disclosure
affidavit, gives detailed information about a person’s income
and expenses.


When you finish it, you must sign it in front of a notary public.

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THE BASICS: GETTING CHILD SUPPORT IN NEW YORK STATE

A subpoena is a legal document that says the person who
gets it has to supply the papers or the information listed in
the subpoena.

If you think the father is lying about his income or finances, you should ask
the Support Magistrate to give you a subpoena. You can use the subpoena to
get information from the father’s employer, bank, credit card companies and
other places to help show the father’s real financial situation.
You can also subpoena other people to come to court to testify if your
case goes to trial.

At trial, you can get people to testify about your expenses and others
to testify about the father’s financial resources.


WHAT IF THE SUPPORT MAGISTRATE STILL DOES NOT
REALLY KNOW THE FATHER’S INCOME?

If the Support Magistrate believes the father is lying about his finances, then
the Support Magistrate can issue an order of default. This order can make
the father pay child support based on the needs of the child, instead of based
on the father’s income.

If you give enough evidence in court to show that the father is hiding his real
income and probably has more than he says, then the Support Magistrate
may impute income to the father. This means give child support based on
a higher income than what the father says he has.


CAN I GET CHILD SUPPORT IF I GET PUBLIC ASSISTANCE?

When you start receiving public assistance or Medicaid, you give up your
right to collect child support to the Human Resources Administration (HRA)
in New York City. The Department of Social Services (DSS) used to be the
agency that collected child support, so you may hear people still refer to
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