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Non-Custodial Parent Guide/FAQ

Parents are responsible for meeting the financial and emotional needs of their children until they reach the age of 18. Fathers who live apart from their children often have to deal with a lot of issues - such as custody, child support, court processes, and more - which can be overwhelming and confusing.

This guide was designed for non-custodial parents (parents who do not live with their children) to provide helpful resources and help answer some of their frequently asked questions around these issues.

Click each section below for FAQs and resources about: Paternity and Custody
Child Support
Custody
Payments and Arrears
Court
Court Preparation Tips

Paternity and Custody

Who is considered a custodial parent?
The custodial parent lives with his/her child and is the legal guardian of the child. The custodial parent does not have to be the child’s mother or father. The custodial parent can be the child’s grandparents or legal guardian.

Who is considered a non-custodial parent?
The non-custodial parent does not live with the child but is still responsible for providing support for the child. While you may not live with the child you are still a very important part of his or her life.


Child Support

What is child support?
Child support is a payment that non-custodial parents make every month to support their child. The court decides how much you have to pay every month. This amount is determined on the basis of your income and the needs of the child.

Who can apply for child support?
Any parent, guardian or caretaker of a child who needs help supporting her/his child can apply. If the custodial parent applies for public assistance she or he must provide information on the non-custodial parent so the OCSE can seek child support payments.

What is the Child Support Enforcement program (OCSE)?
OCSE maintains child support enforcement laws, creates procedures to establish paternity and to obtain court orders for child support, collects and distributes child support payments and enforces child support orders when payments are not made.

What am I responsible for providing financially?
NYS guidelines state that non-custodial parents must pay a certain percent of their income each month to cover all child expenses plus a certain amount to cover the following expenses: child care, uncovered medical expenses and educational expenses. To get an idea of how much all of this might cost, go to the Taking Control of your Finances section for more information.

At what age do family child support payments end?
Child support payment ends when the child reaches the age of 21.

What if I cannot afford to pay the amount of child support ordered by the court?
Depending on your situation, there are a few options to consider:

You must prove that it is impossible for you to pay that set amount and file a “Change of Status form.” This is a form that you must fill out to request formally that your monthly payments be decreased by the court.
If your income falls below the poverty level then you may be able to get a poverty order allowing you to pay only $25 to $50 a month.

If your income does not fall below poverty level, but you still cannot afford your child support payments, you can still ask the court to decrease the amount of your child support payments.
The court will also allow for a written agreement between the custodial parent and the non-custodial parent allowing for a lesser amount. However, the judge must agree to that amount based on the age and needs of the children, child care expenses and all factors consistent with the best interest of the child.

What are the consequences if I don’t pay my child support?
If you do not pay for child support after being ordered to do so by the court for more than 4 months, the Office of Child Support Enforcement can enforce any or all of the following measures:
  • Suspend any professional licenses and/or driver licenses
  • Garnish employment wages
  • Hold any money you are due to receive during tax season
  • Freeze bank accounts
  • Take any lottery winnings
  • Seize any property
There are some Fatherhood programs available that can assist you with getting a job or advancing in your career, figuring out your budget, understanding child support and reconnecting with your children. The following organizations have Fatherhood programs: Workforce1 Career Center in Upper Manhattan (917) 493-7000, BronxWorks in the Bronx , Northern Manhattan Improvement Corporation, and St. Nicholas Preservation Corporation in Brooklyn.

Where does the money I pay in child support go?
If you make payments through the Office of Child Support Enforcement, the money is usually sent to the custodial parent in the form of a check. However, if the custodial parent is receiving public assistance, then a portion of that money may go directly to the State in order to pay back the money (public assistance cash benefits) the custodial parent is receiving through the government.

Who should provide medical insurance for the child?
If there is no agreement between both parents of the child, then the court can order either parent to be responsible based on the medical insurance plans available to both parents.


Custody

What happens after a case is filed against me?
Both you (the non-custodial parent) and the custodial parent will receive a letter in the mail (sent priority) requesting that you attend a hearing in court set for a certain date. Once you appear before the magistrate on your set court date, the court will determine the amount of child support payments based on documents both parents submit verifying all sources of income, as well as expenses related to the needs of your child.

But I am not the biological parent. Why do I have to pay child support?
The biological father is not always the legal father. To be considered the legal father, you
  1. Were married to the mother when the child was born OR
  2. Are listed on the birth certificate as the father of the child.
Once paternity is established, an “Acknowledgement of Paternity” form must be signed before being legally recognized as the father of a child.

What is a paternity test?
A paternity test is a way to determine the biological father. Paternity tests can be done by taking blood or taking saliva samples with a cotton swab. For more information on paternity testing contact your nearest local family court.

Why should I establish paternity legally?
Establishing paternity legally gives you legal rights as a parent including court ordered visitation and custody. It also allows your child to be eligible to receive benefits available through you such as health insurance through your employer and money from social security.

How can I establish legal paternity?
If you signed the child’s birth certificate, then you have already established paternity. However, if you are not listed on the child’s birth certificate as being the father then you will need to take a paternity test. Once you have taken the paternity test and are confirmed as the father of the child you will need to sign an “Acknowledgement of Paternity” form. The mother of the child must also sign this form before you are legally recognized. Once you give this form to the courts you will be legally recognized as the father of the child.

How much is a paternity test and what if I cannot afford one?
The costs will depend on what kind of paternity test is performed. Prices can range from $250.00 and $2,000.00. A test for paternity while the mother is still pregnant is more costly than a test done after the baby is born. Some testing sites offer lower cost testing that is non-court-approved, or “curiosity testing.” Most centers offer payment plans and will require full payment before they release the results to you. The American Pregnancy Association recommends paternity testing facilities which have been accredited by the American Association of Blood Banks. Results from a paternity test should be given within 14 days.

What are New York State’s custody guidelines?
Assuming the custodial parent does not receive public assistance, if the parents come to an agreement when making decisions about custody and visitation, then the court does not need to get involved. If there is no agreement, then the courts will make those decisions once a petition is filed for child support by either parent or by the State. In New York, the type of custody awarded is based on the best interests of the child/children. No preference is given to either parent. The decision on who gets custody takes place at the child support court hearing or during a separate court hearing scheduled specifically to decide visitation rights.

What is joint custody?
Joint custody is when both parents are legally recognized as guardians of the child. Joint custody in New York State is the preferred parenting plan for parents that do not live together. Joint custody can be broken down into two areas, legal and physical custody.

The parent with legal custody has the rights by law to make major decisions that affect the child. There can be joint legal custody or sole legal custody. Sole legal custody is when the parent that lives with the child (custodial parent) has full responsibility of the child and makes all major decisions affecting the child including health, education and welfare. Joint legal custody refers to both parents sharing the responsibility of making all major life decisions for that child.

Physical custody refers to where the child should live. Physical custody can be broken into three areas including sole physical custody, joint physical custody and split physical custody. Sole physical custody is when the child lives with one parent and spends less than 26% percent of the year with the non-custodial parent. Split custody generally means that the child splits the calendar year evenly with each parent. However, split custody can also refer to a situation in which there are two children involved and each parent has sole custody of one child.


Payments and Arrears

If I am not paying child support does that affect my ability to visit my child?
No. Child support payments and visitation rights are separate issues. The custodial parent should never discourage you from visiting with your child if you have a legal agreement relating to visitation rights.

How can I make my child support payments?
You can make your payments by paying the custodial parent with cash, a check or through direct deposit; however, checks or money orders are highly recommended because these payments are on record. A court may also order a wage garnishment in whereby the money can be taken directly out of your paycheck.

Be aware that if the courts are forced to place a wage garnishment on your check, your employer may charge a fee, which can cost up to $10 per month.

What can I do to avoid missing payments?
The best way to avoid missing payments is to keep in contact with your child support enforcement agency. By doing this, you can know when a payment has been changed or you can notify the agency about changes in your income. Also, learn to budget your income to avoid missing payments. Click on this link to learn more about budgeting and connect to a budget worksheet that can help you manage your money and be prepared for your monthly child support payments.

What are arrears?
When you miss a child support payment, you accumulate debt. Child support debt is called an arrear. Even if you are incarcerated or unemployed, you are still expected to pay child support each month. There are ways that you can avoid arrears, such as requesting a petition for modification as soon as your circumstances change.

REMEMBER: Any back child support payments you owe can never be reduced!

In what situations can I change my child support payments?
Most people would need to change child support payments in the following situations:
  1. the custodial parent and child move to another state
  2. the parent paying child support moves to another state
  3. one of the child’s parents gets incarcerated
  4. there is a salary change for the non-custodial parent
  5. one of the parents gets married or divorced
  6. one of the parents starts or stops receiving public benefits
  7. if custody and/or visitation rights regarding the child changes
How do I know the state isn’t taking more out of my check monthly than they should?
There are NYS guidelines based on the percentage of the non-custodial parent’s net low income. Net income is the amount of money you keep after all taxes and deductions have been taken out. Based on the number of children under a case, the following percentages indicate how much may be taken out of your net income for child support: (these figures are an estimate based on NYS guidelines) 1 Child= 17%
2 Children= 25%
3 Children= 29%
4 Children= 31%
5 Children= 35%
Remember: This is just the base amount. You can pay more for medical, school, and other expenses. The amount of children you have may also impact your child support order.

Can I give my child gifts in place of child support money?
No. You may give your child all the gifts you want, but they can never be considered a substitute for child support payments. You are still responsible for making your weekly or monthly child support payments.

How can I get a job to pay child support?
The NYS Child Support Division can direct you to agencies that can help you both with skills training and job placement, including the following organizations:

Citizens Advice Bureau
391 East 149th Street, Suite #520
Bronx, NY 10455
Tel. (718) 993-8880

St. Nick’s Williamsburg Works
545 Broadway Avenue, Basement
Brooklyn, NY 11206
Tel. (718) 302-2057

Northern Manhattan Improvement Corporation
76 Wadsworth Avenue
New York, NY 10033
Tel. (212) 453-5368


Court

What happens after a case is filed against me?
Both you (the non-custodial parent) and the custodial parent will receive a letter in the mail (sent priority) requesting that you attend a hearing in court set for a certain date. Once you appear before the magistrate on your set court date, the court will determine the amount of child support payments based on documents both parents submit verifying all sources of income, as well as expenses related to the needs of your child.

What happens if I don’t appear for my child support court hearing?
If you fail to appear for your scheduled hearing, the court system will use a “3 strike rule”. After failing to attend a third scheduled hearing you will be issued a default child support payment order. It is in your best interest that you appear in court. The court can and will order child support payments to be made whether or not you are present. If you are present, you can bring all necessary documents proving your income giving the judge a chance to set a fair amount on your behalf. Go to http://newyork.earnbenefits.org/documents for a list of documents needed to prove income.

Am I still responsible for child support payments if I get incarcerated?
Yes. You are still responsible for payments while you are incarcerated. In this case, you should try to petition the court to grant you a reduction in your child support payments while you serve your time.

If my child support payment was reduced while I was in prison, what happens when I get out?
Once you are released from prison, the court will re-issue you another child support order based on your capability to earn income. The amount of your child support payments may increase based on the judge’s decision.

How do I get custody or visitation rights to my child if the custodial parent does not allow it?
If the custodial parent and non-custodial parent cannot come to an agreement on their own, the court will be responsible for determining custody and visitation rights. The court will grant custody and visitation rights based on the best interests of the child at that particular time.

Can I stop paying child support if the custodial parent discourages me from visiting with my child even after a legal order has been made by the courts?
No! Under no circumstances should you ever stop making child support payments unless you are ordered by the court to discontinue payments. You will be responsible for any payments you miss no matter what the situation. If you encounter a problem in which the custodial parent is not complying with a court order, you should speak with an attorney or your local court clerk.


Court Preparation Tips

The following list has some quick tips to help you prepare for your court date:
  1. Bring any documents you may need to court, including your ID (you will need state approved photo identification to get into the building), proof of employment status (pay stubs, employment verification letter with hourly or yearly salary), any documents/stubs of your rent and/or electricity bills. The appropriate documentation is necessary if you are trying to prove or establish paternity.
  2. Arrive at least 15 minutes early for your court date as it will show a favorable and responsible view of you, especially if you are asking for any adjustments or modifications on your child support order.
  3. Dress nicely. A courtroom is a professional setting and you should dress accordingly, if you need help finding clothing please use the following resource:

    EarnBenefits: Under the community resources tab, EarnBenefits has a referral source to free clothing. http://newyork.earnbenefits.org/freeclothing/spreadsheet.pdf

  4. Be on your best behavior. You should not for any reason get aggressive with anyone during your child support hearing. Shouting, cursing, violent outbursts, intoxication or any kind of physical or emotional outbursts which may be detrimental to others will not be tolerated and may hinder your case.
  5. Speak softly and maintain a professional attitude while in the hallways of the courts.
  6. Show the judge respect by addressing him or her as “your honor or judge”.
  7. Do not chew gum during your court proceeding.
  8. Do not bring any food or beverages with you when you are to appear in the courtroom.
  9. Turn off all cellular phones or pagers when in the courthouse, especially when you appear before the judge.
  10. Do not speak in the courtroom while another proceeding is going on.
  11. Do not speak out of turn. Wait until you are asked to present your documentation or opinions.
  12. Do not bring recording devices into the courtroom as it is not allowed and it may be confiscated.
  13. Do not bring a lot of baggage when you go into the courthouse as it will slow down the security processes.
  14. Let the court know beforehand if you will need an interpreter.
  15. Seek legal representation if necessary. There are many organizations who will represent you for little to no cost based on your income, such as:
The Bronx Defenders
860 Courtlandt Avenue
Bronx, NY 10451
(718) 838-7878
1-800-597-7980
fax: (718) 665-0100
www.bronxdefenders.org