CS guideline question, NY state (edited per socrateaser)

[highlonesome]

Soc,

I live in NY state and have been divorced one year.  Ex and I have one 4 year old daughter together.  At the time of the decree we decided on 50/50 custody arrangement which has been working reasonably well.

  Based on this arrangement, we worked out a support agreement that is well below guidelines (which would be about $950 per month) which normalized us to have equal net incomes at both homes.  This amounts to me paying around $400 per month.

Now the ex has changed her mind and decided she needs more money.  She's planning on taking me to court to set payment at the straight 17% guideline.  

1.  Can she do this?  

2.  Is there anything I can do to prevent it?

[socrateaser]

>Now the ex has changed her mind and decided she needs more
>money.  She's planning on taking me to court to set payment at
>the straight 17% guideline.  
>1. Can she do this?  

After doing a very quick search of NY case law, with which I am not well acquainted, I find:

"Domestic Relations Law § 236(B)(9)(b) provides that 'upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance, including financial hardship'". JOSEPH SANGIMINO v. TERRY SANGIMINO, 575 N.Y.S.2d 515, 176 A.D.2d 872 (10/21/91)

Your facts state that you have an agreed/stipulated order/judgment calling for an amount of support that is below guideline. In order to obtain an upward modification, your ex must show that her financial circumstances have substantially and adversely changed, or that your financial circumstances have substantially improved, since issuance of the prior chlid support order.

This is not a tremendously heavy burden of proof to carry. However, if neither of your incomes have changed substantially, and your ex has not incurred some substantial increase in non-discretionary expenses, then I believe that your ex's motion will fail -- otherwise, it will probably succeed.

>2. Is there anything I can do to prevent it?

You may want to try offering a settlement amount somewhere in between what you're paying now, and what you would likely pay were you to lose.

Hope this helps.

[highlonesome]

Here's a case precedent in particular that has me worried, though:

"Child Support Standards Act Applies to Shared Custody: The CSSA only speaks in terms of custodial parent and non-custodial parent and does not address how child support should be determined in "shared custody" situations. Some courts have awarded child support based on the time each parent had custody of the child. The Court of Appeals rejected this approach in Bast v. Rossoff, 91 NY2d 723 (1998). The court stated that in shared custody law, the court must apply the traditional three-step formula set forth in the Child Support Standards Act and then if it finds the amount is unjust or inappropriate, make an award that is just and appropriate. The "custodial parent" is the parent who has custody for the greater period of time."

My questions:

1.  Does this mean that if one parent has the child one day per month more than the other parent, they are automatically assumed to be custodial?

2.  Does this mean that any agreement arrived at by the parents which is below guideline can at any time be changed to basic guideline regardless of change of circumstance?

3.  Does this change at all your initial opinion?

[NeverGiveUp]

In NY a divorce usually goes before a court referee, aka Vince the Nice.  His job is to keep you out of the judges face.  It starts off with a smile and friendly atmosphere, until you refuse to give up your kids voluntarily. Strong arm tactics are the norm.  Part of the approach is to offer you a great package that includes a reduced CS payment  ("I'm on your side look at this great deal!").

After, your ex can bring you back to court and declare, "I just can't get by".  Next you'll stand before an officer of the court (not a judge) who will break out their adding machine and come up with the proper number. She has the kids, no one is going to ask her for records proving your CS payments aren't enough.

Try not to feel too bad, most of us dads here in NY have been screwed in this fashion.

Go here -> http://assembly.state.ny.us/mem/  Put in your zip, then send letters to them explaining how you intend to vote for them again, NOT!  Then ask your friends, family to do the same.  Are you a member of FRANY?

[socrateaser]

>1.  Does this mean that if one parent has the child one day
>per month more than the other parent, they are automatically
>assumed to be custodial?

Yes, for the purposes of applying the guideline three-step process.

>
>2.  Does this mean that any agreement arrived at by the
>parents which is below guideline can at any time be changed to
>basic guideline regardless of change of circumstance?

No, before the court can consider a modification, the requirements of finding a substantial change in the financial circumstances of either party, must be met (see the Sangimino decision).

>
>3.  Does this change at all your initial opinion?

Nope.