Child Support
Modification Amendment

by Clifford J. Petroske, Esq. November 28, 2010
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Since the enactment of the Child Support Standards Act (“CSSA”) in 1989 a set percentage of income has been the “presumptively correct” amount of child support, regardless of the pre-existing financial obligations of the non-custodial parent. Now, the Low Income Support Obligation and Performance Improvement Act brings the same mathematical precision to the modification of an existing child support obligation.

The new law provides that a court may modify a child support order where: (1) three years has passed since the existing order was issued; or (2) either party’s income has changed by fifteen percent or more since the existing order was issued. Once the custodial parent has met one of these thresholds, the non-custodial parent’s income is again subjected to the calculation of support under the CSSA in the same way as support was initially calculated.

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This may not come as a surprise to some. In my experience, many people believe that the law has always allowed child support to be modified at any time simply for the asking. Until now, however, a modification of support was difficult to obtain. This worked to the advantage of many non-custodial parents, for whom the upward modification of child support almost always imposed a financial hardship.

Historically, New York Courts were reluctant to simply increase child support and potentially force a non-custodial parent into default on his or her financial obligations unless there was some “unanticipated and unreasonable” change of circumstances, or the expenses incurred in raising the child had increased and the custodial parent was simply unable to make ends meet. Meeting one of these standards was never easy. If the custodial parent did not come to court with proof of how the children’s expenses have increased (i.e., documents showing expenses at the time of the original order, as well as documents showing current expenses), along with proof of income being insufficient to meet those expenses, he or she had little hope of proving the financial need to obtain an upward modification. In cases with a prior agreement setting the amount of child support (as opposed to an award of support set by the court after a trial) and where the child’s basic needs were not in danger of being unmet, the custodial parent had to have a “substantial change of circumstances” that was both “unanticipated and unreasonable.” In practice, such circumstances were hard to find and prove.

In recent years, a somewhat easier method of modifying child support emerged, available to custodial parents who are clients of the support collection unit. Such persons qualify for cost of living adjusted (COLA) support awards beginning two years after the entry of the existing order, if the cost of living has gone up ten percent or more during the preceding four years, and then every four years thereafter. Either party to such an order can elect to obtain a new child support determination, and opt out of the COLA order. This method of support modification still exists under FCA 413-a, but is only available to clients of the support collection unit. Its application is even more restricted because of the economy. Such a modification depends upon the existence of a ten percent or greater increase in the cost of living occurring within four years. As things stand with the economy, recent annual increases in the Consumer Price Index are well below the 2.5% growth rate anticipated by the statute for a child support modification to be available within four years after the date the existing support order issued (i.e., 10% growth in the CPI can only be reached in four years by 2.5% or greater annual growth rate). For this reason, this method of modification remains effectively unavailable in the short term.

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Not to worry, since the amendments to the child support laws now make upward modifications automatic, or at least presumptively so. It is important to remember that although the Child Support Standards Act sets support as a percentage of income, it also contains numerous factors by which the court can “deviate” from this presumptively correct child support figure. These factors include the financial resources of each of the parties and the child, the standard of living the child would have enjoyed had the marriage or household not been dissolved, the non-monetary contributions that the parents will make toward the care and well-being of the child, a determination that the income of one parent is substantially less than the other parent’s gross income, and/or a consideration of the needs of the other children of the non-custodial parent, if the resources available to support these children are less than the resources available to support the child or children who are the subject of the support proceeding.

The irony is that the enactment of a new easier method to modify child support may well put renewed emphasis on the importance of these deviation factors to arrive at a fair child support modification. Although it may be tempting to believe that an increase in income of fifteen percent or more will automatically translate into a fifteen percent increase in child support, those opposing such increases have little to lose in asking the court to consider the effect on the finances of their new families. Especially in cases where the custodial parent is gainfully employed and remarried to a high-earning individual, it will be difficult for the courts to blindly apply the child support percentages to income and expect a fair and just result in a modification proceeding.

It should not be overlooked that the new law also provides for downward modifications of support. However, a reduction in income will not be considered as a ground for modification “unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.” This is not new, since it was long established by case law to be the appropriate standard of downward modification applications. The new law simply codifies the old case law standard.

Primarily, the new law provides additional grounds for modification of child support. It also re-states, as a separate ground, “substantial change of circumstances.” In this way it does not supercede or over-rule any existing methods of support modification. In fact, the New York State Assembly Memorandum in support of the new law indicates the law is not intended to change the existing law regarding the standard for modifications of orders incorporating but not merging separation or settlement agreements. So, for example, in cases that do not otherwise meet the criteria for modification because there has not been a 15% change in income or 3 years since the existing order entered, there can still be a modification if there has been an unanticipated and unreasonable change of circumstances.

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