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NY child support modifications are based on earning ability

Noncustodial parents who believe they should be paying less child support must have extremely convincing cases before a New York family court judges will consider support modifications. A financial change must be substantial to warrant a drop in support.

How a judge views a parent who reports the loss of a job, a demotion or a business downturn will depend less on the circumstances than the parent's ability to pay. Providing support for children is a legal requirement. Court-ordered child support may change, but only with very compelling reasons.

A slow business season may not be enough to convince the court that a permanent support change is necessary. A parent may not trade a high-salaried position for a low-paying job to avoid support. A parent's financial hardship must be evident and extreme, not planned.

Documentation must show a drastic and unavoidable financial change has occurred since the time of the initial support order including up-to-date expenses, tax returns, assets and business reports.

The ability to pay child support may be interpreted differently by a non-custodial parent and a family court judge. A parent who is jobless but has significant savings or liquid investments may not understand when a judge denies a support modification. That's because the parent's ability to pay still exists, although a salary does not.

Changes in circumstances are admissible as evidence for downward modifications. Evidence must support the negative financial condition.

A judge could find that a parent's ability to pay is unrealized. Earning ability and income are separate issues, according to the New York Family Court Act. The court might say that a parent's ability to generate sufficient means is underdeveloped compared to the skills, education or finances the parent possesses.

Judges will examine the financial records of the non-custodial parent. An approved child support reduction does not mean parents choose how much they feel they can pay. The court will hold a hearing to decide what support amount is proper.

Child support helps custodial parents pay for daily living expenses for a former couple's joint children that they may not be able to provide if they were not receiving a consistent payment. Such items include food and a roof over their head, but it can include back-to-school clothing and supplies, safe transportation and even a day at the park. A parent who does not receive child support has to take money from other areas of the household budget to make up for the kids' needs and sometimes that means that the kids may have to go without.

It's important to remember that child support is not a form of punishment for the non-custodial parent. It is a way for a parent to ensure that he or she is providing whatever means of necessary care for their kids when they are not always present.

Source: saratogian.com, "Mathew Tully column: On modifying child support payments," Mathew B. Tully, July 14, 2012

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