Brian D. Perskin & Associates

Modifying an Order of Child Support

Child support is an integral component of divorce and custody disputes, and is typically awarded to the parent who is granted residential or primary custody of a child or children. In New York State, child support is determined based on a percentage of the payer’s annual salary, as well as the number of children between the two parties. This is known as the Child Support Standards Act.

The courts place an emphasis on the value of supporting one’s children, whether that be through financial support, custody and visitation agreements, or both. In some cases, circumstances change (either for better or for worse), and a modification of child support is required. There are two forms of modifications that can be filed with the court, both with different intentions and results.

Downwards Modification

A petition for a downwards modification of child support is a request that one party, typically the payer, makes to the court in an attempt to get their support obligation lowered. In order to petition the courts for a downward modification, the petitioner must prove that they have had a decrease in income (15% or more) or that their current obligation is putting a significant strain on their ability to support themselves. In order to prove one of these two factors, the petitioner must provide current copies of pay stubs, household bills, statements outlining debt, and even their most recent tax returns.

A downwards modification can also be requested if there has been a drastic change in circumstance. It is difficult to say exactly what constitutes a drastic change in circumstance since it will vary from case to case, but a few examples include increased medical expenses for the child or paying parent, bankruptcy, or loss of employment. A payer can request that the courts recalculate his or her child support obligation after a period of 3 years has passed since the child support order was issued.

Downward modifications were created to provide relief to a payer who is experiencing a financial hardship that leaves them unable to meet their prior child support obligation. A person cannot petition the court for a downward modification if they are not experiencing one of the aforementioned hardships. A custodial parent refusing to abide by the custody agreement by blocking visitation or communication between the non-custodial parent and child is not grounds for requesting a reduction in child support payments. In this case, the non-custodial parent would have to ask the court to enforce the custody and visitation order.

Upwards Modification

As assumed, a petition for an upwards modification of child support is the exact opposite of a downwards modification. The custodial parent, or payee, will oftentimes be the petitioner in this kind of modification request. Historically, at least before the Child Support Standards Act was implemented in 1989, a modification of support (especially an upwards modification) was difficult to obtain. Nowadays, it is possible for the custodial parent to include language in a Stipulation of Settlement (for a divorce matter) or in a Final Order of Child Support that outlines specific circumstances that lead to an increase in support. An example of these stipulations can include, but are not limited to, an increase of a certain percentage at the beginning of each calendar year, or an automatic increase each time the non-custodial parent received an increase in salary.

Additionally, a custodial parent can petition the courts for an upwards modification of child support if the subject child or children incur sudden and unexpected expenses after being diagnosed with a mental or physical issue, or if they become seriously ill or injured. If a custodial parent is able to prove to a judge that they are unable to support his or her family and make ends meet due to this change of circumstance, they will be awarded a greater sum of child support.

In some instances, a custodial parent can move the court to order that a non-custodial parent pay private school tuition or extra-curricular expenses in lieu of increasing a child support payment. This kind of modification is only awarded on a case-by-case basis, and the reasons for a judge granting this request vary greatly. For example, a non-custodial parent may be required to pay for private school tuition if they are in favor of their child attending a particular school, have paid for part of the tuition in the past, or if enrolling in the private school would benefit the child and allow them to pursue higher academic endeavors.

Get the Help You Need

The burden of proving grounds for either a downwards or upwards modification of child support is the responsibility of the petitioner, as they are the person requesting the change. A child support modification is a serious matter and will impact both the petitioner and respondent’s financial stability. For more information on modification of orders, be it support or child custody, contact the family law firm of Brian D. Perskin & Associates P.C. at 718-875-7584 for a free and confidential consultation today!