Child Support and Public Assistance

While I have repeatedly written about various issues involving New York’s Child Support Standards Act, here, here, here, and here, one issue that was not previously discussed and bears mentioning, is the interplay between the Child Support Standards Act and public assistance received by the parent receiving child support.  In Gregory v. Gregory, 68 A.D.3d 770 (N.Y.A.D. 2 Dept), the Appellate Division, Second Department decided the amount of child support payable by the non-custodial parent to the custodial parent was receiving public assistance.

In Gregory, the parents physically separated and the mother retained custody of the children.  Eventually, the parents agreed that the father would have primary custody of their two sons, and the mother would have primary custody of their daughter.  While there was no written agreement or court order concerning child support, the father claimed that he and the mother agreed that each parent would support the child or children in her or his custody, respectively.

Thereafter, the mother applied for and was awarded public assistance.  The mother received public assistance from August 1, 2004, until May 31, 2007, totaling $26,830.67, of which $13,415.44 was attributable to the support of the parties’ daughter, who was the child in mother’s custody.  In May 2007 the mother commenced a proceeding seeking child support for the parties’ daughter.  The Department of Social Services (DSS) intervened in the proceeding, seeking payment of child support from the father, which sum included the money it had paid to the mother on behalf of the parties’ daughter.

After a hearing, the Support Magistrate calculated the father’s support obligation for his daughter for the period to be $26,006.26, and directed him to pay that amount to the DSS.  The Appellate Division held that Family Court’s directive that the father pay the DSS the sum of $26,006.26 was proper.  Since the support obligation of a parent of a child receiving public assistance is measured by the child’s needs and the parent’s means, not by the amount of public assistance paid on behalf of the child, the Family Court acted properly in declining to limit the amount required to be paid by the father to the DSS to the child’s share of the public assistance grant.  Contrary to the father’s contention, he was not entitled to offset alleged unpaid child support from the mother against the amount he owed to the DSS. During the relevant time period, there was no support obligation imposed upon the mother for the children who were in the custody of the father.

The lesson of this case is that whenever the DSS is involved in assisting the custodial parent, this assistance is likely to come at a high price to the non-custodial parent.  What is significant in the opinion is that the typical child assistance payment amounts to a few hundred dollars.  On the other hand, the amount of child support owed by the non-custodial parent and calculated on the basis of that parent’s income, can be several times higher.  The non-custodial parent will not receive the difference between the two figures since it would be retained by the DSS.  In similar situations, depending on the incomes involved, a family law lawyer may recommend to the non-custodial parent to pay the custodial parent the total amount of public assistance privately since it may cost a lot less.