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Saturday, October 4, 2014

How to Win your Child Support Case in Family Court, Part 1


This is my first article in a series of articles regarding Child Support in New York State. In my years practicing as an attorney I have won many child support cases.  My knowledge of the Child Support process was key in these victories.  These articles will tell the reader many of the things you need to know to win your child support case. 

There are three types of Child Support proceedings that can be brought in either Family Court or Supreme Court. This article will only be focusing on the New York Family Court process. The topic I am discussing today is De Novo or Initial Child Support Proceedings.

Types of Family Court Proceedings

The three types are: initial de novo proceedings, modification actions and enforcement proceedings.  The Family Court also has jurisdiction over Spousal Support cases which should not be confused with spousal maintenance cases which occur in Supreme Court actions.

The first step is to file a petition in Family Court. If you live in New York City you can file a petition in Brooklyn, Bronx, Queens, Manhattan or Staten Island as well as the other counties in the State (click on the links for the addresses of the respective courts).   You can go to the Office of Court Administration website to find the application. The application will ask you for a few things including the biographic information for you, the child’s parent and your child.  Also the application will ask you what kind of relief you are seeking. There is no filing fee in Family Court.

Initial De Novo Proceedings

In an initial de novo proceeding there is no order of support or judgment of divorce directing support in place.  You are asking that the Court establish an Order.  Prior to filing this initial proceeding, paternity must be established. At times, a party seeking support will have to file a Paternity proceeding in Family Court prior to filing an Initial de novo Petition.  If the parties are married then no paternity proceeding will be needed because the other parent is presumed to be the parent of the child. If no marriage, then there must be an acknowledgement of paternity or order of filiation in place to avoid filing a Paternity hearing. The Court cannot make a decision on child support without paternity being established.

In this Initial petition you must allege the relief you are requesting (i.e. child support), but there is no need to set the amount you are looking for.  You can say that you are seeking support pursuant to the Child Support Standards Act (CSSA) which is by law the presumptive amount of child support that needs to be paid. If you need more money than the presumptive amount you should state this in your petition.

In order to establish the correct child support amount the Court must establish what the combined parental income is.  The court will use the combined parental income to determine the presumptive pro rata amount of child support that is due pursuant to the CSSA and to determine the pro rata amount for ad ons like uncovered medical expenses, insurance and day care.

Determination of the Presumptive Amount of Child Support

The Court determines the presumptively correct amount of Child Support pursuant to the CSSA. This is done by multiplying the combined parental income by certain statutory percentages.  These percentages are determined by the number of children the two parents have.  The CSSA imputes 17% for one child, 25% for two, 31% for three and 35% for four children.  The CSSA has an income cap of $141,000. If the combined parental income is above this then the court in its discretion can deviate from the above percentages.

In my next article I will tell you how to show you how the presumptive amount of child support formula is determined by using a very simple formula.

If you have any questions or are looking to hire a Brooklyn, New York Family Court Attorney to help you with your child support case, call me at The Gilmer Law Firm, PLLC.  Thank you reading this article.  Please click here if you want to sign up for my newsletter


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