Recently a Family Court judge in Nassau County ruled in favor of rapper 50 Cent’s request to have his child support payment lowered from $25,000 per month.   The judge, after a hearing on the issue, lowered his child support obligation from $25,000 to $6,500 per month.  This ruling willl more than likely be appealed but has certainly given many noncustodial parents some satisfaction in knowing that there are some courts that at will listen to their plight. 

          In New York, child support is determined by combining the parents’ income up to $80,000 and applying a mathematic formula to that amount (less FICA taxes, NYC or Yonkers income taxes, child support paid for another child pursuant to court order or written agreement or alimony/maintenance paid to a prior spouse or the custodial parent).  The key is that the mathematical formula must be applied on the combined parental income up to $80,000.  The court has discretion to apply the formula to combined income over $80,000, if it chooses to use the formula on income above the cap it must give specific reasons for so doing in its decision.  When the court decides to deviate from the mathematical formula on combined income above the cap, they must base this decision on several factors.   These factors include:

                  a) the financial resources of both parents and the child
                  b) the physical/emotional health of the child, any special needs
                  c) the standard of living the child would have had if the parties were still living together
                  d) the tax consequences to the parties
                  e) the non-monetary contributions of the parties towards the care of the child
                  f) educational needs of either parent
                 g) the substantial differences in both parents’ gross income
                 h) needs of other children under the care of the noncustodial parent (limited to    instances  where the financial resources available to those children is less than what is available to the child)
                 i) extraordinary expenses of the noncustodial parent in making visitation or having extended visitation
                 j) and any other factor the court deems relevant

          Once a child support order is entered by the court, either using the mathematical formula or deviation based on these factors, the order can be modified either upward or downward.  A downward modification petition (which is what 50 Cent requested) requires a showing of “substantial change in circumstances”.  Typically when a downward modification petition is sought, the noncustodial parent is making the request because of a loss of employment or reduction in income.  Having a new or second family is generally not a legitimate basis for a downward modification petition.  Nonetheless, even in cases where there is a loss of employment of loss of partial income the courts will scrutinize the noncustodial parent to determine if the change in employment status was involuntary and will require that the parent make every effort to find commensurate work and/or income.  So in other words, merely going in to inform the court that one was recently laid off from his/her job or demoted with less pay is not sufficient, the court can either order the party to seek another job with similar pay or get an additional job so that the income from the two jobs make up the previous salary.  Where the change was due to issues such as lack of job performance, absenteeism, drug/alcohol abuse, etc., these are all considered “voluntary” for the purposes of a downward modification petition. The court can “impute” income to the noncustodial parent where he/she has a profession, license/certification, trade/skill or college degree.   The court assumes that a noncustodial parent with any of these credentials have a particular earning potential based on what the average salary is for that particular field or industry.  So even if the noncustodial says he/she is unemployed, with these credentials he/she will more than likely have their modification petition denied based on their earning potential.  Prevailing on a downward modification petition, on the other hand, based on loss of employment or income requires a showing that the change in circumstances was “involuntary”.  Involuntary change in circumstances more often results from a permanent or temporary disability, being laid off as an unskilled laborer due to no fault of the noncustodial parent or severe economic slowdown.  And even where this is the case, the court will make every attempt to get the noncustodial parent to find another job or to acquire some employable skills through job training.

          Just as the noncustodial parent can seek a downward modification, the custodial parent can seek an upward modification (which is what 50 Cent’s son’s mother did).  The requirements for filing an upward modification also include a showing of a “change in circumstances”.  Proving a change in circumstances means that the petitioner must show that the child’s needs have increased, the cost of living has increased to the point where it impacts the cost of raising the child, the change in the current and prior lifestyle of the child and that the noncustodial parent’s income or assets has increased substantially.  The mere fact that the noncustodial parent’s income or assets have increased is not sufficient unless it is coupled with supporting proof that the child’s needs have increased.  However, there are instances where the court will increase child support without showing that the noncustodial parent’s income increased, where a significant amount of time has passed since the initial order of support was entered.  For instance, the court will more than likely increase the amount of support in a case where the child support order was first entered when the child was 3 years old and the custodial parent has not gone back to court until the child turned 13 years old.  The court assumes that a teenager’s needs are a lot more than that of a 3 year old. 

          It is much more difficult to have the court grant an upward modification than it is to grant a downward modification petition.  For whatever reason, courts are partial to providing more support for a child than taking any of it away. In 50 Cent’s case, the court more than likely took into consideration some of the factors previously discussed. It is public information that 50 Cent’s income increased drastically in the past few years than from when he first came onto the scene.  And although 50 Cent clearly did not meet any of the criteria for a downward modification petition, he was able to convince the court that his son’s needs were currently being met, that his mother’s cost of living has not increased and that the standard of living he had previously could be met based on the new amount.  One other very important factor I believe he was able to prove to the court was the current child visitation schedule, the fact that he spends a substantial amount of time with his son and provides for his son outside of the child support obligation.

          So a word of caution, do not expect the same treatment that 50 Cent received.  Although it is quite refreshing to see that all judges are not so inclined to automatically deny the downward modification based on an insurmountable obstacle, it is somewhat bothersome that it was done in a one case where such an outcome would probably not have caused a dent in his pockets.

Feel free to contact my office for a consultation on your child support, child custody, child visitation cases.