Modifying Child Support Payments
If you are or have been incarcerated, you may request to have your child support payments modified. However, there is no guarantee that your request will be granted.
A. The Law for Modifying Payments of an Incarcerated Person
Unfortunately, because of a 1988 New York State Court of Appeals case, an incarcerated person has little chance of being granted a modification of their child support payments. In Knights v. Knights (71 NY2d 865, 527 NYS2d 748) the Court of Appeals ruled that incarceration was not a justification to temporarily reduce or stop the petitioner’s support payments despite the financial difficulties imposed by his being incarcerated, when his incarceration was the result of his own “intentional conduct.”
Even if a support modification request were to be granted, a change in support does not usually apply to any arrearages (past amounts of child support already owed) which may have accumulated. Recent New York cases have held that New York Family Court Act 413(1)(g), which provides, in certain circumstances, for a maximum cap on the amount of child support arrears that may accrue, does not apply to incarcerated parents, based on the reasoning used in Knights v. Knights. Thus, child support arrears will continue to accumulate while the support-paying parent is incarcerated.
While modification orders will not erase arrearages, orders do affect payments from the date of the order. Further, the Court of Appeals in Knights v. Knights implied that when a person seeking a support modification is released from prison, the court could forgive a part of the arrearage accrued after the modification petition was filed.
B. How to Ask the Court to Modify a Child Support Order
Despite the above, if you are incarcerated and are unable to make your court-ordered child support payments, you should immediately write to the (Family) Court which originally ordered your child support order and ask for a copy of Family Court Form 4-11A: “Petition for Modification of Order Made by Family Court or Another Court” (downloadable PDF available at http://www.nycourts.gov/forms/familycourt/pdfs/4-11.pdf)
You should complete the petition and Financial Disclosure Affidavit, sign both before a notary, and mail them back to the court. Make sure to attach a copy of your original Child Support Order. If you get a support modification hearing (while incarcerated or after release), you may present any evidence you feel will convince the judge you need to modify your order. If the modification is granted, the court can make it retroactive to the date your petition was filed. If your petition is denied while incarcerated, you can file a new petition after release.
Remember, the amount you owe for child support can change over time based on, for example, cost of living adjustments and alterations in the amount you earn. The Child Support Enforcement Agency automatically reviews each case every two years to assess whether an increase in support is warranted. If it is so determined, Child Support Enforcement can increase your support burden without first going to court. You are, however, given notice of the change and an opportunity to challenge the increase.
C. Resources for Child Support Issues
The Division of Child Support Enforcement has offices in every county in New York and in each borough of New York City. See address / phone information below. Also see Westchester County’s Office of Child Support Enforcement at http://socialservices.westchestergov.com/child-support-help.
NYS Division of Child Support Enforcement
Westchester County Office of Child Support Enforcement (walk-in Location)
100 East First Street, 5th Floor
Mt. Vernon, NY 10550
This agency does not have a website. Make sure you call to contact them, or look at the information above for links.