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Temporary Child Support in New York Family Court and Child Custody

May 14, 2018

The New York law allows family courts to issue temporary child support orders while a child support case is still pending. The amount in such orders should be enough to cater for the needs of the child. Moreover, the law allows the court to issue temporary child support orders regardless of whether the child support case is certified as urgent. Furthermore, pursuant to statute, the court can give temporary child support orders even when the financial disclosure has not been availed by the parties. Financial disclosure is required in all child support cases. It includes information about the income streams and assets of the parents or parties in the child support case. In accordance with the Child Support Standards Act formula, courts use the financial disclosure to determine the amount that each party should contribute towards the child support. If the financial disclosures are available at the time of issuance of the temporary child support order, the order will be consistent with the financial disclosures. However, if the financial disclosures are not available before the family court at the time of issuance of the temporary orders, the orders issued will be consistent with the child’s needs.

When the child support case is resolved, the court gives orders in accordance with the Child Support Standards Act formula. The parties in the case can, however, agree on an amount different from that ordered by the court and register the agreement with the court. When the final orders are made, any temporary child supports orders in existence will be taken into account. The payor in the temporary child support orders will be given credit for the payments made. In case the amount in the temporary orders was greater than the one in the final orders, some amount might be deducted from the payor’s future child support obligation. The final child support orders are backdated to the date the child support petition was filed. If there was any public assistance involved in supporting the child, the court can backdate the final orders to the date the public support commenced. In most cases, there are arrears at the time of issuance the final child supports orders. The arrears result from the backdating of the final orders to a date earlier than the date of issuance of the temporary orders. The arrears also come about when the amount in the final orders is higher than the amount in the temporary orders. The final child support orders describe how the residential custodial parent will be paid any outstanding arrears as well as the regular support payments.

Cases regarding temporary child support and custody have not always been straightforward. For example, the court must decide what to do with the child support when a child custody case is still undetermined. Furthermore, if the court is yet to determine the child custody case, it must decide who will pay and who will receive the child support. Such essential details of child custody cases have been clarified by the Court of Appeals, the uppermost court in New York. The Court of Appeals holds that in cases of shared custody, the parent who spends the most time with the child is the custodial parent as far as child support is concerned. It follows, therefore, that the parent who spends the most time with the child should receive the temporary child support orders. The custodial residence of the child is the place where he/she sleeps the majority of the time. When determining the custodial residence, where the child sleeps carries more weight than where the child spends the waking hours.

According to the Appellate Division in the First Judicial Department in New York, under no circumstance can the residential custodial parent be ordered to pay child support to the non-residential custodial parent. In cases where a court had previously ordered shared custody, but the circumstances have changed such that the child does not spend equal time with the parents, the custodial parent is the one with whom the child resides. In such a case, even though the shared custody court order has not been modified, the custodial parent is entitled to child support payments. If the circumstances have not changed, and the child spends equal time with the parents, the parent with the higher income or assets becomes the non-custodial parent for child support purposes. He/she, therefore, pays child support. Parties in a child support case can debate on whether the court should deviate from the guideline child support amount.

Sometimes, a temporary child support order can contradict a previously issued custody order. For example, the custodial parent in the custody order can be the non-custodial parent in the temporary child support orders. What should happen in such a case? The parties can argue that the former non-custodial parent’s child support obligations should be terminated. In such a case, the temporary child support orders can be given to the custodial parent as per the temporary orders pending the conclusion of child support and custody cases. The parties can also argue that based on the current circumstances, the custodial parent according to the temporary orders needs to receive child support and should be relieved of their ongoing child support obligations.

The custodial parent as per the custody orders can argue that the custodial orders cannot be modified by a temporary order. With that said, he/she may argue that the current child support arrangement should only be altered by the final rulings on the custody and child support cases. If a party is discontented with the temporary orders issued by a Support Magistrate, they might have to wait until a final order is made.

Child support, custody, and other family law cases are not clear-cut. These cases require a rigorous and thoughtful evaluation. A single case can have many compelling arguments. If you have a family case, you should contact a seasoned family law attorney. Spodek Law Group has skilled lawyers with over 40 years experience in family matters litigation. Contact us today to gain the benefits our our top-class legal services.

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