How to get child support when you are a victim of domestic violence

This information is designed to help domestic violence survivors, who are usually women. Therefore it is assumed that if you are reading this, you are a mother who is seeking child support. However, the information in this booklet may also be helpful to fathers and non-parents who have custody of children.

 

If you are domestic violence survivor, you may be afraid to file for child support against the abusive father. It is possible to receive child support from the father without him ever learning of your address or telephone number. You may ask the court to keep your address confidential during the entire court process. You can also get protection from the court officers while you are in court.

 

Note: Some abusive fathers who are served with child support papers then decide to seek custody or visits with the children. It is best that you discuss these issues and any other concerns that you may have with a domestic violence counselor before you file for child support.

 

Who is required to pay child support?

Biological and adoptive parents are required under New York State law to financially support their children. It does not matter if the parents never lived together or were never married to each other. If you are not married to the father, and he did not sign an Acknowledgement of Paternity form at the hospital, then a court order naming him as the legal father (and "order of filiation") must be issued before the father is obligated to pay child support. That can be done as part of the child support case as will be explained below. The obligation to pay child support continues until the child is 21 years old unless the child becomes emancipated before turning 21. An emancipated child is either married, self-supporting or in the military.

 

Who may file for child support?

  • If you live with your child, and your child's father does not live with you, you are the "custodial parent" and the father is the "non-custodial parent". As the custodial parent, you may file a child support case against the father, the non-custodial parent.

  • If you live with the father of your child, you can still file for child support against the father if he is refusing to provide any financial support for the child.

  • If you are receiving public assistance for the child, it is the Human Resources Administration who may seek a child support order against the father.

  • Anyone who has custody of a child, not just the parents, may file for a child support order against one or both of the parents.

 

Where do I go to file for child support?

  • If you are not married to the father, the only court where you can file for child support is Family Court.

  • If you have already filed for an Order of Protection against the father in Family Court, you can request child support on a temporary basis as part of the Order of Protection case. However, you must then file a separate child support petition in Family Court.

  • If you are married to the father, you may request child support as part of a divorce case. All divorce cases are filed in Supreme Court.

  • If you are married to the father but you do not want to get a divorce, your petition for child support must be filed in Family Court.

*This resource tells you how to get a child support order in Family Court. However, the information about how the amount of child support is calculated also applies to a divorce case in Supreme Court.

 

How do I file a petition for child support in family court and what do I bring to court with me when I file?

  • Go to Family Court early in the morning to file the petition. If you arrive later than 10 am, you may be told to return the following day. Bring copies of the birth certificate for each child.

  • If you were never married to the father and he signed an Acknowledgment of Paternity form, bring a copy of this to court with you. This form makes him the legal father. If he did not sign the Acknowledgment of Paternity form, the court will have to make an order saying that he is the legal father (an "order of filiation") before it can make an order for child support.

  • If you are married to the father, bring a copy of your marriage certificate. If you are divorced or legally separated from the father, bring copies of the Judgment of Divorce or Separation Decree.

  • The petition clerk will give you a form to fill out. You should provide as much information about the father as you can, including his name, address, social security number and date of birth.

  • If the father does not know your address, and you feel that you will be in danger if the father finds out your address, tell the petition clerk that it is very important that your address remain confidential.

  • The same day that you file the petition, you will be given a date to come back to court to see the judge. In a child support case, the judge is called a "Support Magistrate". The date you come back to court is called the "return date" or "adjourn date", and is often at least two months from when you file the petition.

  • The petition clerk will give you two packet, one packet is for you and one is for the father. Each packet has one copy of the Summons, the Petition, and a Financial Disclosure Affidavit form. You will also receive an Affidavit of Service which must be completed by the person who gives the Summons, Petition and Financial Disclosure Affidavit to the father.

 

What is "service" of the court papers and how is it done?

The Summons, Petition and Financial Disclosure form must be given to ("served on") the father so that he knows that you have filed a child support case against him. The Summons tells the father when he must come to court.

 

You may not serve the papers yourself. Someone who is over the age of 18 and a resident of the State of New York must serve the papers on the father. You can have a friend or relative serve the papers. You can also hire a professional process server to serve the papers. The papers may not be served on a Sunday or a holiday and must be served at least 8 days before your return date.

 

If you are a domestic violence survivor, you can ask the domestic violence officer at your local police precinct to serve the papers on the father. The domestic violence officers are not required to serve child support papers. But if you show them that you have a Criminal Court or Family Court Order of Protection they may serve the child support papers for you.

 

The person who serves the papers must either hand the papers to the father or hand them to someone else at the father's work or home. If the papers are served on someone else, that person must be "of suitable age and discretion" (meaning someone old enough and likely to give the papers to him) and the papers must also be mailed to the father's home. If you do not know where the father lives, then the papers must be mailed to his last known residence.

 

Only in special situations will the court give you permission to serve the papers only by mailing them to him at his last known address. An example of a special situation is when the father is avoiding service.

 

The person who serves the papers must complete the Affidavit of Service and sign it in front of a notary public. You must bring the completed Affidavit of Service with you to court on the return date.

 

How does someone become a legal father?

A man has to be the legal father for him to be ordered to pay child support. If the father's name is on the birth certificate, that is not enough to make him legally the father. There are several ways to become the legal father ("establish paternity"):

  • Marriage: If you were married to the father at any time, whether before or after the child was born, then he is legally considered to be the father.

  • Acknowledgment of Paternity: If you are not married to the father, but he signed an Acknowledgment of Paternity form, that should make him the legal father.

  • Order of Filiation: If you are not married to the father, and he did not sign the Acknowledgment of Paternity form, then you must file a Paternity Petition in Family Court. The father must be served with the Paternity Petition as explained earlier. On the return date, the father will be asked if he consents to the entry of an Order of Filiation (an order stating that he is legally the father). If he does, then you will receive an Order of Filiation and your child support case will be heard on the same day. If he denies that he is the father, blood or DNA tests will be ordered. If the results of the test show that there is a 95% chance or higher that he is the father, the court will say that he is the father unless he can show proof that he is not the father, which is very difficult to do.

 

What do I need to bring to court on the first return date?

  • The Affidavit of Service completed by the person who served the father with the court papers. Be sure that the person signs the Affidavit of Service in front of a notary.

  • The Financial Disclosure Affidavit form which you must have completed and signed in front of a notary. Be sure to list all of your expenses including housing, food, medical, utilities, and not just your child's expenses.

 

You must bring the Affidavit of Service and Financial Disclosure Affidavit with you to court. Try to bring as many of the following papers as you can:

  • Proof of your expenses, including receipts, bills, and credit card or loan statements.

  • Proof of your income, including pay stubs, income tax returns, W2s, proof of worker's compensation or disability payments, unemployment benefits, award letters from the Social Security Administration.

  • Proof of the father's income such as copies of pay stubs, income tax returns, W2s, unemployment benefits or disability payments. These papers are helpful to the court even if they are not recent.

  • The father's address, Social Security number, and his employer's name and address.

  • Proof of any child care expenses in the form of a notarized letter from the daycare provider and copies of receipts for payments.

  • Proof of any medical expenses for the child that are not covered by health insurance (unreimbursed medical expenses).

  • Birth certificates for your children, a marriage certificate, and any separation agreement or judgment of divorce.

 

Bring photocopies and not originals of all the above-listed documents. The court will keep the documents you give it.

 

What happens if the father does not come to court on the return date?

If you give the Support Magistrate a properly completed Affidavit of Service, and the father does not come to court, then he is in "default" and the court can give you a final child support order.

 

If you have proof of the father's income, the amount of the child support order will be decided based on his income. If you do not have proof of his income, the order will be based on the needs of the child, including household expenses such as rent, food, and utilities. You should give the court proof of your expenses including copies of receipts, monthly bills, credit card statements, and childcare expenses.

 

The court may ask if you would like to give the father another chance to come to court. If you do, then you should receive a temporary child support order and a date to come back to court. The court will send the father a Summons with the new court date or will issue a warrant for his arrest.

 

How does the court determine how much child support I will get?

The New York State law that says how much child support a non-custodial parent must pay is called the Child Support Standards Act (CSSA). The Support Magistrate must use the CSSA to decide the amount of child support that the father will be ordered to pay. The father must pay a certain percentage of his gross income less certain deductions.

 

The court deducts the following from the non-custodial parent's income:

  1. Child support actually paid for other children pursuant to a court order or written agreement

  2. Maintenance actually paid to a former spouse pursuant to a court order or written agreement

  3. Social Security and Medicare taxes (FICA)

  4. New York City taxes

 

After the deductions are made, the non-custodial parent must pay:

  • 17% of his income for one child

  • 25% of his income for two children

  • 29% of his income for three children

  • 31% of his income for four children

  • 35% of his income for 5 or more children

 

Health insurance

If the father has health insurance coverage through his job, then the law requires him to provide health insurance for his children also. He must also pay his fair ("pro-rata") share of the following:

  1. The child's medical expenses which are not covered by health insurance (unreimbursed medical expenses)

  2. Child care expenses if the custodial parent is working or attending school. The pro-rata share is the proportion of each parent's income compared to the combined incomes of both parents. For example, if you make $10,000 per year and the father makes $30,000 per year, his pro-rata share is 75% and yours is 25%.

 

If the father has no income or receives public assistance or SSI, then he will probably be ordered to pay a minimum of $25 per month.

 

If the father claims he is not working, but you think he is, or you think the father is lying about how much he earns, you can ask that the court "impute" income to the father. This means that the court will look at the father's work history to determine how much he is capable of earning and will order him to pay child support based on that amount.  

 

How is the child support paid?

How often you receive child support payments depends on how the father is paid. If he receives a paycheck every two weeks, then he will be ordered to pay child support to you every two weeks.

 

If the father works on the books (receives a paycheck and not cash), you can ask that his employer be ordered to take the child support out of his paycheck and send it to you. This is called an Income Deduction Order.

 

You can ask that the father be ordered to send the payments directly to you, but not if you want to keep your address confidential.

 

You may also ask that the father pay the child support through the Support Collection Unit (SCU). The SCU is an agency that will collect the child support payments from the father and send them to you. If you do not think that the father and send them to you. If you do not think that the father will send you the child support regularly, it is a good idea to use the services of the SCU. The only disadvantage to using the SCU is that it takes a couple of weeks longer for you to receive your first payment because the father sends it to the SCU who then sends it to you.

 

If you are a domestic violence survivor, and you wish to keep your address confidential from the father, do not give the SCU your address. You should give the SCU the address of a friend or relative. The SCU can use this other address to send you the child support checks and any other correspondence.

 

What if I receive public assistance?

If you are receiving public assistance, you must have given (assigned) your right to receive child support to the Human Resources Administration. You are also required to cooperate with HRA's attempts to get child support from the father. You must give HRA any information you have regarding the father. If HRA files a child support petition against the father, you may have to appear in court.

 

If the father was abusive to you and you fear for your safety, you will not have to help HRA obtain child support from the father if you can prove to the HRA caseworker that the father was abusive.

 

If HRA obtains a child support order against the father, any child support paid by the father will go to HRA. Each month you will receive up to the first $100 paid by the father, no matter how many children you have.

 

If you receive public assistance, the father must pay child support through the Support Collection Unit.

 

If the father is ordered to pay child support in an amount that is more than your public assistance grant, your public assistance case will be closed. The child support will then be sent to you instead of HRA.

 

What if the father does not pay?

If the father does not pay child support once there is a child support order, he is violating the court order. The back child support that the father owes you is called "arrears". You should file a violation petition with the Family Court. You will then need to have the father served with the violation petition and appear in court on the return date.

 

If the court determines that the father has violated the child support order, the court may issue a money judgment for the arrears. In addition, the court can:

  1. Issue an Income Deduction Order

  2. Suspend the father's driver's license

  3. Suspend the father's business, professional or recreational licenses

  4. Order the father to pay several child support payments in advance ("post an undertaking")

 

If the court finds the father willfully violated the child support order, then he could be placed on probation or sentenced for up to six months in jail. A willful violation means that the father had the money to pay the child support but refused to.

 

If the father is not already paying child support through the Support Collection Unit (SCU), when you go to court on the violation petition, you can ask for the services of the SCU. The SCU can take the following additional steps if the father is not paying child support:

  1. Take the father's income tax refunds and lottery winnings and send them to you

  2. Freeze the father's bank accounts

  3. Take a portion of the father's unemployment benefits and send them to you

 

Will the court give me a lawyer in a child support case?

No, even if you have no income or very low income you cannot get a court-appointed lawyer in a child support case in Family Court. Most of the time you won't need a lawyer. Just be sure to bring as much information as you have about the father's income as well as proof of your expenses.

 

Once I have a child support order, is there any way to increase the amount that the father has to pay me?

If you want a higher amount of child support, you must file a petition for an "upward modification". You will only receive an order for a higher amount if you can prove that there has been a change in your circumstances that you could not have expected. This means that your expenses for your child must have increased and you did not know beforehand that they would increase.

 

If the father is paying child support through the SCU, you can request a cost of living increase. Whether you get the increase depends on changes in the economy and not on your particular situation.

 

Resources (courts)

 

Bronx

 

Bronx Family Court

900 Sheridan Ave.

Bronx, NY 10451

(718) 590-3318

 

Bronx Supreme Court

851 Grand Concourse

Bronx, NY 10451

(212) 791-6000

 

Brooklyn

 

Kings County Family Court

283 Adams St.

Brooklyn, NY 11201

(718) 643-2650 ext. 2652

 

Kings County Supreme Court

360 Adams St.

Brooklyn, NY 11201

(718) 643-8076

 

Manhattan

 

New York Family Court

60 Lafayette St.

New York, NY 10013

(646) 386-5206

 

New York County Supreme Court

60 Centre St.

New York, NY 1007

(212) 374-4423

 

Queens

 

Queens County Family Court

151-20 Jamaica Ave.

Jamaica, NY 11432

(718) 298-0197

 

Queens County Supreme Court

88-11 Sutphin Blvd.

Jamaica, NY 11435

(718) 520-3713

 

Staten Island

 

Richmond County Family Court

100 Richmond Terrace

Staten Island, NY 10301

(718) 390-5460 ext. 5461

 

Richmond County Surrogate's Court

18 Richmond Terrace

Staten Island, NY 10301

(718) 390-5201

 

Resources (domestic violence organizations)

 

Safe Horizon

For help with domestic violence, call the domestic violence hotline at (800) 621–HOPE (4673)

For help with all crimes, including support for family members of homicide victims, call (866) 689-HELP (4357)

For help with rape and sexual assault, call (212) 227-3000

 

Sakhi for South Asian Women

Counselors speak Bengali, Gujarati, Hindi, Punjabi, Urdu

Hotline: (212) 868-6741

 

New York State Coalition Against Domestic Violence

(800) 943-6906

 

New York Asian Women's Center

Counselors speak Bengali, Chinese, Hindi, Japanese, Korean, Tagalog and Vietnamese

(888) 888-7702

 

Jewish Board of Family and Children's Services

(212) 532-2400

 


Disclaimer: This content is offered only as a public service and does not constitute legal advice. You should contact an attorney who is knowledgeable in this area to obtain advice with respect to any particular issue or problem.


Queens Legal Services Corporation produced this resource with funding from the Office of Violence Against Women, U.S. Department of Justice. They dedicate this resource to all of the courageous and inspirational domestic violence survivors they have worked with.

 

 

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Última revisión: February 15, 2016