Full question:
I was separated from my husband 5 years ago. At the time of separation I had one child, who has child support. After 2 years of separation I gave birth to another child. Can I claim child support for the second child from my ex-husband under New York law?
- Category: Divorce
- Subcategory: Child Support
- Date:
- State: New York
Answer:
In New York, the biological father of a child is primarily required to pay child support and the stepfather is responsible only if support from biological parents is insufficient to keep child off public assistance. Child support provision is provided under N.Y. Fam. Ct. Act § 413(1)(a), which reads as:1. (a) Except as provided in subdivision two of this section, the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine. The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision.
(b) For purposes of this subdivision, the following definitions shall be used:
(1) “Basic child support obligation” shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except as increased pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) “Child support” shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years.
(b) For purposes of this subdivision, the following definitions shall be used:
(1) “Basic child support obligation” shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except as increased pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) “Child support” shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years.
Additionally, under N.Y. Fam. Ct. Act § 415, which read as:
Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means. Step-parents shall in like manner be responsible for the support of children under the age of twenty-one years.
In Monroe Cty.Dep't of Soc. Servs.on Behalf of Palermo v. Palermo, the court held that stepfather was not required to pay child support to a child born out of mother’s extramarital relationship years after separation from the stepfather.
In the instant case, the child born after two years of separation may not be entitled to child support from the mother’s ex-husband.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
