New York Courts dot gov
New York StateUnified Court System

Herkimer, Jefferson, Lewis, Oneida, Onondaga & Oswego Counties


Family Court


Child and/or Spousal Support

 

Until What Age Is a Parent Obligated to Support a Child?

In New York State, a child is entitled to be supported by his or her parents until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child may be considered to be "emancipated" and the parents' support obligation may end.

A child may also be considered "emancipated" if he or she is under 21, leaves the parents' home and refuses to obey the parents' reasonable commands.

 

Who May File a Petition for Child Support?

A parent, or other person, with whom a child resides may file a petition in Family Court asking the court to enter an order for the "non-custodial parent" to pay child support.

A child who is not emancipated and is living away from both parents may file a petition against his or her parents asking for an order of support to be paid to the child.

When a child is receiving public assistance benefits, or is living in a foster home and receiving foster care benefits, the Department of Social Services may file a petition against the non-custodial parent or parents asking that the court enter an order for child support to be paid to the government agency while it continues to pay benefits for the child.

The party filing the petition is called the "petitioner" and the party from whom support is sought is the "respondent". The petition must be served upon (delivered to) the respondent, together with a summons indicating the date of the court hearing.

There are no filing fees in Family Court.

 

Do the Parties Need to Be Represented by Lawyers?

The parties may hire lawyers to represent them or may speak for themselves without a lawyer.

Where a party cannot afford to hire one, the court will assign a lawyer at no cost, only when it is alleged that there has been a violation of the order and a party is in danger of going to jail.

 

What Documents must Be Brought to Court?

The parties must provide copies of their most recently filed tax returns, some recent pay stubs, and a completed financial disclosure statement showing their earnings and expenses. The parties may also bring to court proof of their expenses, such as rent, food, clothing, medical costs, child care, education and the cost of supporting other children.

 

What Happens at the Hearing?

A "Support Magistrate" conducts the hearing, taking testimony from both sides concerning their income and expenses and the cost of supporting the child. The parties can present evidence and witnesses and cross-examine each other and the witnesses. The Support Magistrate calculates how much support the non-custodial parent must pay to the parent with custody, and sets a schedule for regular payments. Payments may be paid directly to the petitioner or through the Support Collections Unit ("SCU"). SCU, which is not part of the court, will then send the money to the petitioner.

There is an informative twenty minute video which, in a step by step manner, will take you through the process of a paternity or child support proceeding in the New York State Family Court. You will learn what documents are necessary and what to expect in the court room.

"What You Need to Know About Child Support Hearings and Services" (Video)

 

What If the Parties Disagree with the Support Magistrate's Order?

Both parties have the right to appeal the order by filing an "objection" within 30 days of the date the order is sent to them. The objection must be filed with the court clerk's office, with a copy sent to the other party. The other party may send a reply to the court. After reviewing the case file, a judge then rules on the objection. The judge may leave the order as it is, change it, or send the case back to the Support Magistrate for further proceedings. If either party disagrees with the judge's decision, the case may be appealed to a higher court.

 

What Happens If the Respondent Does Not Pay the Order?

The petitioner may file a "violation petition" asking the court to take action against a respondent who fails to pay a support order. The petition must be served upon (delivered to) the respondent. The Court will advise the Respondent of his right to counsel and may assign counsel if financially eligible. A hearing is then held to decide whether the respondent has violated the court's order. The Support Magistrate may enforce the order by directing SCU to take the payments directly from the respondent's paycheck, order the respondent to pay a lump sum toward back monies owed, or take other steps to collect the money owed, including granting a judgment.

A respondent who falls behind in payments also risks having his or her driver's license or professional and business licenses suspended, bank accounts seized, passport revoked, and tax refunds intercepted.

If the respondent is found to have willfully and voluntarily failed to pay a child support order, he or she may be jailed for up to six months, for contempt of court, placed on probation, or ordered to participate in programs to assist in finding employment.

 

Can the Order Be Changed?

If there is a change in circumstances, either party has the right to file a petition to modify the order. The party seeking a change in the order must file a modification petition containing a statement explaining the change. The petition and a summons must be served upon (delivered to) the other party. The court then holds a hearing to consider the request to change the order.

Orders paid through the Support Collections Unit will be reviewed automatically every three years for possible "adjustment" (change), upon request of either party, and in all cases where the person with custody of the child receives public assistance for the child. The parties are notified of their right to request that SCU review the order, and, following the review, are each notified of the possible change in the order. If they disagree with the proposed new order, they may request a hearing before a Support Magistrate, and a new Support order will be established.

 

What If a Custodial Parent Is Seeking Support from a Parent Who Lives Outside of New York State, or in a County in New York State That Is Far from the Child's Home County?

If the custodial parent lives in one state and seeks support from the other parent who lives outside of that state, an inter-state case may be filed in the Family Court, under the Uniform Interstate Family Support Act (UIFSA). A UIFSA case may also be filed in Family Court when the parents reside in two different counties within New York State which are not located next to one another. A petitioner may file the case in the Family Court in his or her home county, and the petition will be sent to the court in the respondent's state or county. The respondent is then served with the petition and appears in court in his or her home state or county. The petitioner is not required to appear in the other court where the respondent lives. A local city or county attorney may appear there to represent the petitioner at the support hearing.

The hearing is held in the same manner as a support case filed within the local county, but documents and evidence are exchanged through the mail or by fax.

 

Can a Petition Be Filed Against a Husband or Wife for Spousal Support?

In New York State, a married person may file a petition in Family Court seeking spousal support from a current husband or wife. While a divorced person may not seek a new order of support from an ex-spouse in Family Court (that would be done in the state Supreme Court), a petition may be filed seeking to modify an already existing order for an ex-spouse.

The petition and summons must be served upon (delivered to) the respondent. A hearing is then held before a Support Magistrate, where the parties must present evidence of their income and expenses, and may present witnesses to testify. The Support Magistrate decides whether to order the respondent to pay spousal support for the petitioner and, if so, how much and for how long a period of time.