Where a married man, lives with his wife and children and fathers the child of another woman, courts are not limited to the guidelines but have some flexibility given the paragraph F factors. Factor 8, although it says the court must consider the needs of the custodial children, requires the court to also consider the financial resources of the wife. The argument dad will make is that the guidelines percentage amount is unjust or inappropriate based on the needs of the other children. The court must look at the needs of the other children and the financial resources of any person obligated to support them. As a threshold matter, the court may only consider the needs of the other children if (1) the noncustodial parent is actually providing support, and (2) the resources available to support the other children are less than the resources available to support the children subject to the petition to establish support.
In the case of a non-custodial parent who moves on and creates a new family, courts are encouraged to exercise it’s discretion to deviate from the CSSA guidelines. Michael M. v. Judith M., 561 N.Y.S.2d 870 (N.Y. Fam. Ct. 1990) (holding birth of twins to new family of re- spondent noncustodial parent is circumstance warranting hearing on issue of modification of a prior support order regarding children of his former marriage).
The CSSA makes no distinction between in-wedlock and out of wedlock children or to the birth order of children. However, since child support payments made pursuant to a court order or written agreement are deducted from the obligor’s/payor’s income, clearly the first child to file a petition for child support receives the largest award, greater than that of subsequent children. Where dad has and supports several out of wedlock children but no court order or legal agreement to support one, no allowances can be made for that support.
Step parent child support obligation
A stepparent is not liable for the support of a stepchild unless the child is a recipient of public assistance, and even then the stepparent’s obligation is limited to the amount of the public assistance grant and is secondary to that of the parents. FCA § 415; Monroe County Department of Social Services ex rel. Palermo v. Palermo, 192 A.D.2d 114, 596 N.Y.S.2d 252 (4 Det. 1993). Moreover, the stepparent’s obligation continues only as long as she/he is married to the parent of the child who is receiving public assistance.
However, a step parent’s income and financial contributions are factors to be considered in determining the payor’s child support obligation where the step parent’s income and financial contributions reduce the payor’s/non-custodial parent’s personal expenses (under section (C) below) as well as in cases above the statutory cap where the court elects to use the paragraph f factors.
New York Family Court Act § 413(1)(b)(5)(iv) provides for income attribution or imputation to resources that may not be accounted for on the tax returns.
(iv) at the discretion of the court, the court may attribute or impute income from, such other re- sources as may be available to the parent, including, but not limited to:
(C) fringe benefits provided as part of compensation for employment, and (D) money, goods, or services provided by relatives and friends.
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for per- sonal use, or which expenditures directly or indirectly confer personal economic benefits,
Child support in shared custody cases
Where a child spends essentially equal time with both parents, courts typically designate the monied spouse as the noncustodial parent consistent with the intent and application of the CSSA to ensure that the child enjoys a particular standard of living wherever he happens to be residing at a particular time. Martin v Buckley, 2011 NY Slip Op 52235(U) (December 2, 2011); Carlino v. Carlino, 277 AD 2d 897 (4th Dept. 2000); Baraby v Baraby, 250 AD2d 201, 204 (3d Dept 1998); Bast v. Rossoff, 98 N.Y. Int. 0080 (June 16, 1998). However, special circumstances may or may not warrant CSSA deviation.
The Court in Riemersma v. Riemersma, 2011 NY Slip Op 03702, 84 AD3d 1474 (3d Dept 2011) tabulated the parents’ custody times against the children’s sleeping times in order to find that the parent with more ‘awake’ hours is the custodial parent and found that the father, who had more ‘sleeping’ hours and only ha the kids 35% of the time, was the non-custodial parent with the obligation of paying child support to the mother who earned $37,000 more in annual income. There in arriving at a deviation from the CSSA, the court considered that although the mother made substantially more in come, she made certain non-monetary contributions toward care of the children that the father had not.