Court’s Discretion in Child Support and Family Law Part 1


When dealing with issues of family law, there are often many considerations to take into account, from the goals that you are hoping to achieve, to the appropriate steps you must take, the way you should present your case in court, and the factors that could diminish your chances of a successful outcome. Sometimes, it can feel as though you are completely at the mercy of the judge presiding over your case when you are in court, as this is the person with the discretion to decide what the results of your legal proceeding will be. However, it’s important to remember that with the right legal guidance, it is possible for parties and their lawyers to influence and shape the result that the judge decides upon. The following information refers to when people need the court to decide the case or want to be guided by the default law. Remember, that many different things can be agreed upon whether in litigation, mediation, a collaborative case or settlement negotiation.

Child support, despite having a formula contained in the New York Child Support Standards Act, still is chock full of a lot of discretionary matters. Calculating the appropriate amount of child support for any given case can be something of a complex matter and certain nuances will apply to particular circumstances. For example, if there is a combined income between the two parents that is in excess of $141,000, there could be discretion on the amount of child support – if any – that should be ordered for the income that exceeds the first $141,000.00. Similarly, the determination of what amount of income to utilize within the formula is also a significant source of debate, as there is discretion about whether certain employment perks should be included in the income or not. Income can also be determined based on the previous employment of an individual, or the expenses paid by other people on that party’s behalf (this is called imputation of income). Once the amount of income has been decided, the combined income will help to determine a rate of child support by multiplying the amount by either 17% for one child, 25% for two children, 29% for three children, 31% for four children, or 35% for more than five children. Then the non-residential custodial parent would be responsible, as a basic amount of child support, to pay their pro-rata share of the combined child support obligation. Currently, the presumption is that the percentages of this formula create the correct level of child support for the first $141,000 of the combined parental income. That threshold number increases from year to year.

In child support cases, it can be possible for your family law attorney to shape the case to seek to deviate from the set guidelines in some circumstances. A deviation may be ordered after the finances of the parents have been considered, and the circumstances of the children determines that a different amount of support is appropriate. On the other hand, the emotional or physical health of a child involved in a case, as well as their special needs or aptitudes may determine that deviation is necessary. Even the standard of living that the child would have been expected to experience has the home or parental relationship remained intact will be considered for deviation purposes. Aside from this, tax influence to both parties are a reason for considering deviation, and non-financial input that the father or mother will contribute to the wellness and care of a child are further reasons to deviate.

If the mother or father within a case requires further education to improve or carry on with their lives as normal, then this could be weighed as part of a decision to deviate from the presumptive support amount. On the other hand, of the gross total income of either part is significantly lower than the other parties’, this could be another reason to deviate from guideline amounts. If the financial resources that are accessed in support of the children living with the payor, and this support is not deducted from the non-custodial parent’s income, then the needs of the children could be considered in calculating an instant support order. Extraordinary expenses for visitation – so long as the child is not currently on public assistance – or expenses from extended visitation may also be considered.

Finally, there is a form of “catch-all” provision that suggests a court may order for deviation based on any factor that is deemed to be relevant and appropriate. However, it’s important to recognize that a trial court cannot simply order deviations on reasons enumerated in the statute without seeking oversight from the appellate courts. Generally, case law will help to determine which proper reasons to deviate are and which are not. For instance, the New York Court of Appeals – the highest court in New York – holds that shared custody on a physical level is not enough by itself to validate deviation from the guidelines of child support amounts.

Prior to this court of appeals decision, in cases of shared custody, many lawyers and courts would expect to apply a proportional offset formula to determine child support. Now, however, child support is done by calculating the support amount with the “monied” parent considered as the non-custodial party in the calculation. Usually, the presumptive amount that is dictated by the Child Support Standards Act formula will be the amount ordered by the court. However, a shared custody case could be ripe with arguments to deviate from the guidelines such as extraordinary visitation or parenting time costs. Unfortunately, just because one of the above factors may be present as a reason to deviate, does not mean that deviation will automatically be ordered – though it is important to pursue every potentially helpful avenue.

We will discuss additional child support, paternity, maintenance, equitable distribution and child custody discretionary matters in next week’s blog post. Further we will address the way that lawyers and parties may influence the amount of support awarded and the results of a case further in a following post. However, if you would like to learn more about child custody, child support, or other family law matters in the meantime, please feel free to explore our blog, click to our website or get in touch with us.

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