Law Office of Jeffrey W. Johnson
Law Office of Jeffrey W. Johnson
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Child support can be modified in two directions: upward or downward. Upward modification of child support means an increase in the amount of support paid, while downward modification of child support means a decrease in the amount of support paid.

Most frequently, downward modification is sought by parents who are required to pay child support, rather than parents who receive child support payments. Parents usually seek downward modification because they lost their job or got a pay-cut at work. If a parent requests downward modification of child support for those reasons, they have to show proof of their change in income, as well as proof that it happened through no fault of their own. More specifically, they have to prove that they didn’t get fired or demoted with cause (say, for misconduct or excessive absences), and that they didn’t intentionally leave the job so they wouldn’t have to pay child support. If they aren’t working anymore because they have become disabled, they have to show proof of disability. If they are not disabled, they have to show that they are actively trying to find another job.

When it comes to upward modifications, the requesting parent is usually the parent who receives child support rather than the parent who pays child support. There are several ways that upward modification of child support may be sought. For one thing, there is an automatic cost-of-living adjustment that can be sought once two years have passed from the time a child support order was entered. The parent receiving child support can automatically file for that increase, with the only requirement being that two years have passed.

Parents who receive child support payments can also file for upward modification if they have reason to suspect that their co-parent’s income has gone up. Once a receiving parent files for upward modification of child support, the paying parent has to provide financial disclosures to the court. This usually takes the form of presenting some form of verifiable information that reflects the parent’s financial situation (i.e., pay stubs, income tax returns, or bank account information). If the paying parent can show that they haven’t received an increase in income, the upward modification of their child support order may not be granted.

When Does The Court Usually Grant Child Support Modifications In New York?

As stated above, in order for downward modification of child support to be approved, there are conditions that the paying parent must meet outright. Specifically, the parent has to show that their income has been reduced or their job has been terminated through no fault of their own, AND that they are making active efforts to increase their income and/or find a new job.

Even when parents can show proof of those two conditions, it is sometimes still difficult for them to get the court’s approval for downward modification of child support. As a rule, the courts tend to be rather stingy in granting downward modification, and only tend to do so in cases where the paying parent can show that they truly need the support amount to be reduced.

Upward modification of child support, on the other hand, tends to be granted more easily. This is due to a number of factors, including the automatic cost of living adjustment after two years that is built into the system. It is also true that the court places primacy on the best interest of the child, and it is much easier for most judges to justify increased child support payments as being in a child’s best interest than it is for them to justify reduced child support payments being in a child’s best interest. Courts are especially likely to grant upward modification of child support if the requesting parent can show that the paying parent has had a significant increase in income or assets.

In addition, parents can also petition to supplement basic child support payments with add-ons. Add-ons may be requested for:

  • Childcare
  • Unreimbursed medical expenses
  • Educational expenses

Like basic child support payments, responsibility for these “add-on” expenses is also based on income, with consideration of the relative incomes of each parent. For example, if one parent makes twice as much as the other, that parent will be responsible for paying two-thirds of those supplemental expenses.

Also, like basic child support, these add-on support orders can be changed through successful petition for modification. For instance, if one parent’s income has gone up or down, their share of the cost for these add-ons can be adjusted to reflect their current income. The standards for modification of add-on expense payments are basically the same as the standards for modification of basic child support.

As A Child Grows, They Get Involved In Different Activities, Some Of Which Cost Money. Is There A Point Where Parents Can Or Should Reevaluate How Payment For Those Activities Should Be Divided?

There are two basic situations where parents might want to reevaluate their child support arrangement or allocation based on a child’s developing and changing needs.

If there is no written agreement or stipulation between the parties, then basic child support rules govern. Under those rules, supplemental expenses are only covered by child support if they’re considered educational expenses. It is therefore possible that some school activities that a child might become involved with over time might be considered educational in nature. If that is the case, then payment for those activities would be allocated to parents according to their income.

It is now very common for divorce stipulations of couples who have children to contain an agreement as to how all extracurricular expenses will be divided. If your divorce stipulation contains that sort of agreement, then the stipulation governs. However, in the absence of that sort of stipulation, most of a child’s activity expenses would probably not be covered by child support unless they are considered educational in nature. It would therefore not be possible to request a modification for those expenses.

Can A Parent Ever Request To Modify A Child Custody Agreement In New York State? If So, Which Factors Does The Court Consider?

Child custody agreements can be modified. Generally, there are two situations where this is possible. Parents or guardians requesting custody order modifications would have to show:

  • There was no initial child custody agreement. In some cases, custody is assigned without a child custody agreement in place. The court may simply enter a custody order and an order of visitation without an official agreement. In those cases, even if both parents consented to the initial custody order and order of visitation, modification can be requested.

    In order for that request to be approved, the requesting party has to show two things:

    1. There has been a change of circumstances since the custody order was entered. This must be a significant change that affects the viability of the terms of the custody order. An example of such a change would be the custodial parent moving far away, making the visitation plan no longer feasible. Another example is if the custody order for a school-age child was entered before the child was in school, and has to be changed to reflect the child’s everyday school schedule.
    2. The proposed modification to the custody arrangement would be in the best interest of the child/children. The second thing you have to show is that it would be in the best interest of the child or children to modify the custody order.
  • There is an explicit custody agreement between the parties, but certain conditions warrant a change to that agreement. In cases where there was an initial custody agreement—that is, a written agreement between the parties governing custody and the parenting time—modification is possible, but the standards are higher. In order for a request for modification to a pre-existing custody agreement to be approved, the requesting party has to show two things:
    1. There has been an extraordinary or unforeseen change in circumstances that warrants a change of the stipulation. This means that the party or parties must not simply prove that there was a change in circumstances, but that the change of circumstances was extraordinary and/or unforeseen.

      In New York, extraordinary or unforeseen change in circumstances sometimes means that a parent has either started or re-started an activity that is harmful to the child. This can include neglect, abuse, or abandonment. It can also be a change of events that signifies that the parent is unable to care for the child (for instance, if they are hospitalized or incarcerated, or if they have been otherwise deemed unfit to care for the child), or that they have otherwise surrendered their rights to the child. Though this is not always the case, most “extraordinary and/or unforeseen changes in circumstances revolve around these issues.

    2. The proposed changes to the custody agreement are in the best interest of the child. Though this would seem to be part and parcel of the first element of proof, it also has to be independently shown that the proposed changes will indeed be better for the child.

    Generally, it is much harder to get custody orders modified if there is a written divorce agreement, but it is possible and it can be done. It simply requires a much higher burden of proof than modifying an order that was put in place sans a custody agreement.

For more information on Family Law Cases In New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 557-9767 today.

 Law Office Of Jeffrey W. Johnson.

Call Now For A Free Consultation!
(718) 557-9767
We Have A Sliding Fee Scale!