If a parent is unemployed or underemployed, some courts in New York “impute” income to the parent and tailor the child support based on the imputed income. For example, if a parent living in Geneva is out of work and looking for work, a court may impute the parent’s income to be equal to the minimum wage in the State of New York. Courts may also impute the income based on recent work history, occupational qualifications, and the prevailing community earnings levels. For instance, a court may look at the average income of residents in Ontario County and order child support based on that amount.
Because courts in New York have so much discretion in these cases, it is critical that attorneys make quality arguments which shed light on the critical facts concerning the case at hand.
If a parent is voluntarily unemployed or underemployed, on the other hand, a court may base the child support amount on the net income the parent enjoyed prior to voluntarily becoming unemployed or taking a position which resulted in underemployment. For example, following a divorce, if a man leaves a high salary job in New York City for more modest employment in Canandaigua, a court may order the child support payment to be based on the man’s New York City salary because he voluntarily left his position.
My ex-spouse is refusing to pay child support. Can I deny him visitation with the children until he resumes making payments?
In New York, the custodial parent cannot deny the non-custodial parent his or her parenting time because the non-custodial parent has not paid child support. In a New York case, Matter of Stewart v. Soda (4th Dept. 1996), the court held that visitation cannot be terminated solely because a parent fails to pay child support. The court emphasized that “visitation cannot be terminated solely for reasons unrelated to the welfare of the child.” Therefore, terminating visitation due to a failure to pay child support it is an “insufficient basis” to deny visitation.
The New York court’s reasoning is rooted in the belief that child support and visitation are separate issues. This distinction is based on the idea that parenting time is ordered because it is in the best interest of the child to promote love and affection with both parents. When the parents have difficulty managing the visitation schedule laid out in the court order, the appropriate remedy is to seek the assistance of the court. Alternatively, if the non-residential parent is not paying child support, the appropriate remedy may be to garnish the amount directly from the non-residential parent’s paycheck. Put simply, the court does not want to encourage parents to engage in “tic for tac” exchanges which may ultimately harm the children.