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 New York Question and Answer Handbook for Noncustodial Parents: A question and answer resource on paternity establishment, child support, and visitation Acknowledgments This handbook was produced as part of a generous grant from the Charles Stewart Mott Foundation. With additional support from the Ford Foundation and Public Welfare Foundation. All of the ideas, opinions, and legal interpretations presented in this handbook are explicitly those of the Center on Fathers, Families, and Public Policy. It should not be assumed that the foundations providing support for this work share them. The production of this handbook would not be possible without the help of many individuals who took the time to read and comment on earlier drafts. Ultimately, any errors in interpretation of the laws of New York are solely those of the author. In addition, the Center on Fathers, Families, and Public Policy made the final decision as to whether to include or not include things in this handbook. The Center would like to thank Judi Albury, Director of Paternity & Community Outreach, of the New York City Office of Child Support Enforcement. Her comments on the handbook were greatly appreciated. The Center on Fathers, Families, and Public Policy would like to thank the Vocational Foundation, Inc. and CEO Works for their help in arranging two focus groups to help improve this handbook. Most important we would like to thank a number of fathers that read over this handbook and provided many thoughtful suggestions to improve it. Fathers from two programs that are part of the Charles Stewart Mott Foundation Fathers at Work Initiative provided extensive comments on this handbook. These fathers include from the Vocational Foundation, Inc. Young Fathers Program: Geraldo Rivera, Quennel Gibson, Jose Feliciano, Cory Murray, Keith Miller, Jules Jean-Louis, Rushon Miller, Jermel Hendricks, Enox Rios, Eugene Israel, Dennis Brown, Corey Brown, Randolph Holman, Rayheim Thompson, and Jason Prieto. In addition, we received great comments from fathers at CEO Works about this handbook. 
Table of Contents The Top Ten Things You Should Understand About The New York Child Support System Questions Surrounding Paternity Establishment
Child Support
Visitation and Custody
Introduction This Question and Answer handbook is based solely on the laws of New York and is only accurate for the state of New York. It was produced on November 1, 2001, and does not reflect any changes in New York law since that date. This handbook provides only general legal information surrounding the New York child support system. It is not advice about your particular legal situation. If you can afford it you should consult an attorney for assistance with your particular legal problems. The authors of this handbook do not practice and are not authorized to practice law in New York. We are providing this handbook as a public service. We try to make it accurate as of the date noted on each publication. Sometimes the laws change. We cannot promise that this information is always up-to-date and correct. We do not intend this information to be legal advice. We do not intend it as advertising or solicitation. By providing this information, we are not acting as your lawyer. Always talk to a competent lawyer, if you can, before taking legal action. Every day in the United States, thousands of children are born to unmarried parents. Most of these parents lovingly welcome their children into their lives. However, the problems and concerns faced by unmarried parents who are also poor are particularly complicated and sometimes can seem hopeless. This handbook will highlight the legal processes involved in paternity establishment and child support enforcement. You should read this handbook with the understanding that any individual faced with the situations outlined here would benefit greatly from the assistance of a legal professional. The handbook can be read cover to cover but if you have a specific question you can just jump to the question that provides the answer for which you are looking. Legal Services Most people would, if they could afford it, hire a lawyer to handle matters as complicated and serious as establishing paternity and setting child support orders. However, the reality is that many low-income, unmarried fathers cannot afford such services. The Center on Fathers, Families, and Public Policy developed this handbook as a source of information for low-income fathers and for social service professionals who are trying to help explain the paternity establishment and child support enforcement systems. This handbook does not replace the services of an attorney to help you with your legal problems. The Top Ten Things You Should Understand About The New York Child Support System
Paternity Establishment What is meant by the word "paternity"? Both legally and biologically, the word paternity means the identity of the father of a child. Except in rare circumstances, when a mother gives birth to a child, she is considered to be the legal mother of that child. Every child also has a biological father. But if you were never married to the mother of the child, New York will not treat you as the father of the child unless legal paternity is established. How can the paternity of a child be established? In New York there are two primary ways to establish paternity for a child born to a mother who has never been married. Both parents can sign a legal document to establish the paternity of the child. This document is called an Acknowledgment of Paternity. Another way to establish paternity is through a court proceeding. If you are absolutely sure that you are the father of the child, and the mother agrees, you can both voluntarily acknowledge that you are the father of the child. While the baby is still in the hospital, the mother and the father, if he is present, are offered the opportunity to do this. In addition to the opportunity to acknowledge paternity voluntarily at the hospital, New York provides opportunities for acknowledgment at a later date. You will still need to go to court if you wish to have court-ordered visitation with your child. If a mother or the state claims that you are the father of a child in a legal proceeding, if there are any doubts you probably should take a genetic test to make sure you are the biological father. Since the 1980s, very accurate genetic tests (DNA tests) have been developed. A genetic test is the best way to be absolutely sure that you are the biological father of the child. If you are not sure that you are the father, and want to be sure, you should insist on a genetic test. What if, after signing the Acknowledgment of Paternity, I have reason to believe I am not the father? Even if you sign an Acknowledgment of Paternity and you later decide you may not be the father, there are ways for you to cancel your signing of the form. However, this is most easily done within 60 days of signing. After 60 days pass, the requirements for canceling the Acknowledgment of Paternity are extremely difficult to meet. If within 60 days of both of you signing the form you decide that you want to cancel this acknowledgment, you have two options. The first option is to file a legal document known as a "Petition to Rescind." You may only file a Petition if there has not been a court case concerning the child. If you can afford it, you should get an attorney to help you cancel this form. There is also a second possibility. This second possibility requires three things for you to cancel the Paternity Acknowledgement. First there must be a court proceeding for the child. Second this court proceeding must happen within 60 days of both parents signing the Acknowledgment of Paternity. Third you must ask the court to cancel the Acknowledgment of Paternity. (you must do this as part of your answer in the court proceeding). If there is a court proceeding about the child within that 60-day period and you do not ask the court to cancel the Acknowledgment, you lose the right to cancel it by using the method provided by the Petition to Rescind. 60 days have passed since the mother and I signed the voluntary Acknowledgment of Paternity form. What can I do now that I realize that I may not be the biological father of the child? If after the 60-day period expires you no longer believe that you are the child's father, your only option is to go to court. You will have to file a Petition to challenge the voluntary acknowledgment of paternity. To challenge a voluntary acknowledgment you must prove at least one of three things. You must prove that the document was signed under conditions of
A court will order genetic test if you attempt to challenge a voluntary acknowledgment of paternity. Successfully challenging an Acknowledgment of Paternity in court will likely require the assistance of an attorney. What if a woman says I am the father of her child but I believe that I am not the father? If you have not signed an Acknowledgment of Paternity and you were never married to the mother of the child, a lawsuit will have to be brought against you to make you the legal father. The mother, the child, or the local child support unit can sue to establish whether you are the biological father. You will receive a legal document that informs you that a mother claims you are the father of her child. It is very important that you read and try to understand everything in this document. This legal document will have on it a date and time for you to appear. It is important that you appear at this hearing. If you do not appear, you will be declared the father of the child, owe child support, and possibly face other penalties for not appearing. I received a document that claims I may be the biological father of a child. Should I just not go to the hearing because I know I am not the father? No. You should go to the hearing and say (and if necessary prove) that you are not the father. Perhaps the best way to prove you are not the father is to get genetic test (DNA test). In New York, if you do not appear this can result in an order declaring you the father of the child. This order is called a default order and it will include an order for you to pay child support. In addition, if you do not appear this can result in you losing your driver's license, occupational license, or sporting licenses. How important are genetic tests (DNA tests) in paternity cases? Genetic test (DNA test) generally can show that someone is not the father or indicate with a great certainty that someone is the father. If the genetic test indicates there is a 95 percent or higher chance that you are the father, a court will likely declare you are the father. Thus, the results of the genetic test will most likely determine what the court rules. Do I have to pay for genetic tests (DNA tests)? Initially, the party that asks for the genetic test must pay for them. However, if that party cannot afford the cost of the test, that party will not have to pay. Instead the government will pay for the test. After the court decides about whether you are the father, the party responsible for the cost may change. Either both parties will pay a part of the cost or one party will pay the entire cost. Still if you can convince the court that you are financially unable to pay, the court should not make you pay. Why would a mother force me to go through the legal process of establishing that I am the father? Having a legal determination of who is the father of a child offers many benefits to the parents and the child. For instance, legal paternity establishment is necessary to get court-ordered child support. In addition, you can only ask a court for visitation with your child if paternity has been established. In some cases the government requires the mother help the state establish the identity of the child's father. She must cooperate in helping New York to establish who is the father of the child, or the government may refuse to give her public assistance. In addition, she only gets the first $50 of your monthly child support payment. Further, she only gets the first $50 when you make your child support payments on time. The rest of your monthly child support payment will go to the government. What if I believe that I am a child's father, but the mother denies me access to the child? For you to have court-ordered visitation you must be declared the father of the child. If you have not been declared the father, you must give (file) legal documents to the court. These legal documents are to start a paternity action. You can also apply for services through the local child support enforcement unit. After you have applied for services, it is possible that they will take the lead to start a paternity action. If you can afford one, you have the right to be represented by an attorney at any portion of a paternity proceeding. If the mother can afford one, she also has the right to be represented by an attorney at any portion of a paternity action. If the child support agency is a part of the case because the mother has received public assistance, the child support agency will also have an attorney. The child support enforcement attorney does not represent you or the mother; he or she is supposed to represent the interest of the child. As part of the paternity action, you can request a genetic test (DNA test) of the mother, the child, and yourself. If you request these genetic tests, each of you will be ordered to have the genetic test taken. If you are ordered or the parties agree to genetic tests, the results of these tests will be a part of the paternity proceeding. If it is determined that you are the father of the child, you are financially responsible for the child.. If you wish to have visitation or custody, there will have to be a separate hearing to determine these issues. If you desire to have visitation or custody it is important that you initiate this separate hearing. As part of this separate hearing, you should ask the court to write a visitation order that clearly states the dates and times when you can see your child. What are some of the legal benefits of establishing paternity for an unwed father? Once paternity has been established, a man becomes the legal father of that child. He has all of the rights and responsibilities of a man who had been married to the mother. The child will be eligible for government dependent benefits and inheritance rights from you. In addition, your name can be listed on the birth certificate as the father of the child. There is no guarantee of the right to custody or visitation, but a father has the right to ask a court for custody or visitation. If you sign an Acknowledgment of Paternity, you may go to court to ask for custody of or visitation with the child. If you establish paternity through the court system, you may ask for visitation with or custody of your child. The court may not grant your request for visitation or custody if the court determines there is evidence that such an arrangement would not be in the child's best interest. You should ask the court to make an order that specifically says which days and hours you can be with the child. What are some of the legal consequences of establishing paternity for an unwed father? If you are declared the legal father of a child you are legally and financially responsible for the child. If the mother has physical custody of the child and she is receiving government assistance, you will have to pay child support. You may also owe the reasonable costs of the mother's pregnancy and confinement, the child's medical expenses, child support back to the time of the baby's birth, and other costs. Child Support How do I make my child support payments? The usual method for payment of child support is to have your employer directly take money from your paycheck and give it to the support collection unit. Your employer cannot discriminate against you or treat you unfairly just because they have to withhold child support from your paycheck. For how long do I have to pay child support? Parents paying child support are generally responsible to support their children until the child is 21. How does the court decide how much child support I should pay? New York has established guidelines to calculate what amount a non-custodial parent should pay for child support. New York has established the following guidelines:
A parent may ask the court to award an amount greater or less than the guideline amount. To do this you must convince a court that the guidelines are unfair or inappropriate in your case. I found out that I owe a large amount of child support. I was never at a hearing where they set the amount of support. How did they determine how much I owe? If you did not show up or were unaware of the hearing were they set the child support amount, you still can owe child support. If you do not show up or the court does not know your income, the court will base your child support amount on the needs or standard of living of your child. The court will take the higher of these two amounts in determining the amount of support you owe. In addition, this amount can be retroactively made to be a higher amount. I lost my job. How come the court ordered me to pay child support when I did not have a job? A court may base your child support obligation on the amount you were earning from your last job. To do this a court must believe that you are not working to avoid your child support obligation. I pay my child support to the payment center but the mother claims that she never gets any of the money that I send. What is happening? In some cases the mother does not receive most of the child support that you pay. If she receives certain forms of government assistance, the government will keep most of the child support. If your child support is less than the amount of government assistance, she will only receive 50 dollars per month of the child support you pay. In addition, she will only receive that if you pay on time. This may make you question why you should pay child support. But if you do not pay child support there are many penalties that the government can apply against you. Can an employer discriminate against me if I owe child support? No. By law your employer cannot discriminate against you or treat you unfairly just because they have to withhold child support from your paycheck. What if I cannot afford to pay the amount that is determined by the child support guidelines? You may ask that the court give you a child support order that is lower than the guideline amount. (The mother can also ask that you be given an order that is higher.) To do this you must convince a court that the guidelines are unjust or inappropriate in your case. The court may also order you to seek employment if you are currently not employed. Why do I owe so much money in child support? There are many reasons that the amount of money you owe can be larger than what you feel you have the ability to pay in child support. First, your original child support order may not have ever accurately reflected what you truly had the ability to pay. In this instance, you should consider asking a court to change the amount of future child support you owe. Second, if you have not asked for a modification of your child support order when things changed in your life, the amount of child support you are expected to pay may not reflect your current ability to pay. In this instance, you should consider asking a court to change the amount of future child support you owe. Moreover, once you fall behind in paying child support the amount you pay each week will have to be greater. You will have to pay your regular amount of support plus an additional amount to begin to cover what you did not pay in the past. The government may also charge you interest at the rate of 9% per year on any past due child support. You may also be charged other costs:
All of these costs may be added to the amount that you owe each month. I have fallen behind in paying child support. What is the maximum amount they can take from my paycheck? For parents whose children live in New York an employer may deduct only a certain percentage of your income for child support. If you are supporting a spouse or another child, the maximum amount the law says that can be taken from your paycheck for child support is 55% of your income. If you are not supporting a spouse or another child, the maximum amount that can be taken from your paycheck for child support is 65% of your income. What if I want to decrease the amount of my child support payment because things have changed in my life? The court is the only way to change the amount of future support you will owe. It is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you pay in the future. A court will make your child support payments less if it believes that there has been a change in circumstances that warrants a decrease in support. It is important to show the court that you have tried to get more income. In addition, you should show that you did not create your inability to pay at the current level of support. A judge cannot reduce the amounts in past due support you already owe for the time before you asked the court for a change (modification). All the judge can do is reduce the amount of support you will owe in the future. How can my child support order be increased? In New York, there are two ways for a child support order to be increased. The first is if either the child support enforcement agency or the custodial parent ask a court for an increase in child support. The court will grant this if the judge believes:
The second way that your child support can be increased is by the child support enforcement agency. For people receiving child support services, child support can increase your support order based on increases in the cost of living. You will receive a notice of this increase by first class mail. You then have 35 days to tell a court in writing that you object to this increase. This objection must be sent to the support collection unit and the mother. At a hearing the court will then decide whether or not to increase your child support. The court will base your child support order on the child support guidelines. I lost my job. What should I do? You should immediately notify the child support enforcement agency. In addition, you should attempt to get a decrease in your child support amount. The court is the only way to change the amount of future support you will owe. It is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you pay in the future. A court will make your child support payments less if it believes that there has been a change in circumstances that warrants a decrease in support. It is important to try and show the court that you have tried to get more income. In addition, you should try and show that you did not create your inability to pay at the current level of support. A judge cannot reduce the amounts in past due support you already owe for the time before you asked the court for a modification. All the judge can do is reduce the amount of support you will owe in the future. What are some possible penalties for me if I do not pay my child support? Many penalties may be applied to you for not paying child support. Some of these penalties include the following:
My driver's license was suspended because I was behind in paying child support. I need a car to get to work or as part of my work. What should I do? You may apply for a special driver's license from the Department of Motor Vehicles. You could only use this license to drive to get to work or if it was necessary for your job. The Department of Motor Vehicles will decide whether or not to grant you this special driver's license. The fee for this license is $75. Can they put me in jail for not paying child support? Yes. The legal basis for placing you in jail is "contempt of court." Contempt of court is a legal term that means you are not following a court order. You may be put in jail for up to 6 months. Access & Visitation The custodial parent doesn't allow me to see the child. Why do I have to pay support? Child support and visitation are two separate issues. You must pay your child support according to the court order regardless of whether you see your child. However, you may go to court and ask for a specific visitation schedule, if you do not have one. If there is a visitation schedule and the child's mother refuses to follow it, you can ask the court to order her to follow the schedule. This may be a very difficult and sometimes frustrating process, but it is possible that it can help you get consistent visitation with your child. |
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