§ 413 — Parents' duty to support child

New York § 413

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 1: Jurisdiction and Duties of Support
• Art. 4: Support Proceedings

Text

§ 413. Parents' duty to support child. 1. (a) Except as provided in\nsubdivision two of this section, the parents of a child under the age of\ntwenty-one years are chargeable with the support of such child and, if\npossessed of sufficient means or able to earn such means, shall be\nrequired to pay for child support a fair and reasonable sum as the court\nmay determine. The court shall make its award for child support pursuant\nto the provisions of this subdivision. The court may vary from the\namount of the basic child support obligation determined pursuant to\nparagraph (c) of this subdivision only in accordance with paragraph (f)\nof this subdivision.\n (b) For purposes of this subdivision, the following definitions shall\nbe used:\n (1) "Basic child support obligation" shall mean the sum derived by\nadding the amounts determined by the application of subparagraphs two\nand three of paragraph (c) of this subdivision except as increased\npursuant to subparagraphs four, five, six and seven of such paragraph.\n (2) "Child support" shall mean a sum to be paid pursuant to court\norder or decree by either or both parents or pursuant to a valid\nagreement between the parties for care, maintenance and education of any\nunemancipated child under the age of twenty-one years.\n (3) "Child support percentage" shall mean:\n (i) seventeen percent of the combined parental income for one child;\n (ii) twenty-five percent of the combined parental income for two\nchildren;\n (iii) twenty-nine percent of the combined parental income for three\nchildren;\n (iv) thirty-one percent of the combined parental income for four\nchildren; and\n (v) no less than thirty-five percent of the combined parental income\nfor five or more children.\n (4) "Combined parental income" shall mean the sum of the income of\nboth parents.\n (5) "Income" shall mean, but shall not be limited to, the sum of the\namounts determined by the application of clauses (i), (ii), (iii), (iv),\n(v) and (vi) of this subparagraph reduced by the amount determined by\nthe application of clause (vii) of this subparagraph:\n (i) gross (total) income as should have been or should be reported in\nthe most recent federal income tax return. If an individual files\nhis/her federal income tax return as a married person filing jointly,\nsuch person shall be required to prepare a form, sworn to under penalty\nof law, disclosing his/her gross income individually;\n (ii) to the extent not already included in gross income in clause (i)\nof this subparagraph, investment income reduced by sums expended in\nconnection with such investment;\n (iii) to the extent not already included in gross income in clauses\n(i) and (ii) of this subparagraph, the amount of income or compensation\nvoluntarily deferred and income received, if any, from the following\nsources:\n (A) workers' compensation,\n (B) disability benefits,\n (C) unemployment insurance benefits,\n (D) social security benefits,\n (E) veterans benefits,\n (F) pensions and retirement benefits,\n (G) fellowships and stipends,\n (H) annuity payments, and\n (I) alimony or maintenance actually paid or to be paid to a spouse who\nis a party to the instant action pursuant to an existing court order or\ncontained in the order to be entered by the court, or pursuant to a\nvalidly executed written agreement, in which event the order or\nagreement shall provide for a specific adjustment, in accordance with\nthis subdivision, in the amount of child support payable upon the\ntermination of alimony or maintenance to such spouse; provided, however,\nthat the specific adjustment in the amount of child support is without\nprejudice to either party's right to seek a modification in accordance\nwith subdivision three of section four hundred fifty-one of this\narticle. In an action or proceeding to modify an order of child support,\nincluding an order incorporating without merging an agreement, issued\nprior to the effective date of this subclause, the provisions of this\nsubclause shall not, by themselves, constitute a substantial change of\ncircumstances pursuant to paragraph (a) of subdivision three of section\nfour hundred fifty-one of this article.\n (iv) at the discretion of the court, the court may attribute or impute\nincome from such other resources as may be available to the parent,\nincluding, but not limited to:\n (A) non-income producing assets,\n (B) meals, lodging, memberships, automobiles or other perquisites that\nare provided as part of compensation for employment to the extent that\nsuch perquisites constitute expenditures for personal use, or which\nexpenditures directly or indirectly confer personal economic benefits,\n (C) fringe benefits provided as part of compensation for employment,\nand\n (D) money, goods, or services provided by relatives and friends;\n In determining the amount of income that may be attributed or imputed,\nthe court shall consider the specific circumstances of the parent, to\nthe extent known, including such factors as the parent's assets,\nresidence, employment and earning history, job skills, educational\nattainment, literacy, age, health, criminal record and other employment\nbarriers, record of seeking work, the local job market, the availability\nof employers willing to hire the parent, prevailing earnings level in\nthe local community, and other relevant background factors such as the\nage, number, needs, and care of the children covered by the child\nsupport order. Attribution or imputation of income shall be accompanied\nby specific written findings identifying the basis or bases for such\ndetermination utilizing factors required or permitted to be considered\npursuant to this clause;\n (v) an amount imputed as income based upon the parent's former\nresources or income, if the court determines that a parent has reduced\nresources or income in order to reduce or avoid the parent's obligation\nfor child support; provided that incarceration shall not be considered\nvoluntary unemployment;\n (vi) to the extent not already included in gross income in clauses (i)\nand (ii) of this subparagraph, the following self-employment deductions\nattributable to self-employment carried on by the taxpayer:\n (A) any depreciation deduction greater than depreciation calculated on\na straight-line basis for the purpose of determining business income or\ninvestment credits, and\n (B) entertainment and travel allowances deducted from business income\nto the extent said allowances reduce personal expenditures;\n (vii) the following shall be deducted from income prior to applying\nthe provisions of paragraph (c) of this subdivision:\n (A) unreimbursed employee business expenses except to the extent said\nexpenses reduce personal expenditures,\n (B) alimony or maintenance actually paid to a spouse not a party to\nthe instant action pursuant to court order or validly executed written\nagreement,\n (C) alimony or maintenance actually paid or to be paid to a spouse who\nis a party to the instant action pursuant to an existing court order or\ncontained in the order to be entered by the court, or pursuant to a\nvalidly executed written agreement, in which event the order or\nagreement shall provide for a specific adjustment, in accordance with\nthis subdivision, in the amount of child support payable upon the\ntermination of alimony or maintenance to such spouse; provided, however,\nthat the specific adjustment in the amount of child support is without\nprejudice to either party's right to seek a modification in accordance\nwith subdivision three of section four hundred fifty-one of this\narticle. In an action or proceeding to modify an order of child support,\nincluding an order incorporating without merging an agreement, issued\nprior to the effective date of this subclause, the provisions of this\nsubclause shall not, by themselves, constitute a substantial change of\ncircumstances pursuant to paragraph (a) of subdivision three of section\nfour hundred fifty-one of this article.\n (D) child support actually paid pursuant to court order or written\nagreement on behalf of any child for whom the parent has a legal duty of\nsupport and who is not subject to the instant action,\n (E) public assistance,\n (F) supplemental security income,\n (G) New York city or Yonkers income or earnings taxes actually paid,\nand\n (H) federal insurance contributions act (FICA) taxes actually paid.\n (6) "Self-support reserve" shall mean one hundred thirty-five percent\nof the poverty income guidelines amount for a single person as reported\nby the federal department of health and human services. For the calendar\nyear nineteen hundred eighty-nine, the self-support reserve shall be\neight thousand sixty-five dollars. On March first of each year, the\nself-support reserve shall be revised to reflect the annual updating of\nthe poverty income guidelines as reported by the federal department of\nhealth and human services for a single person household.\n (c) The amount of the basic child support obligation shall be\ndetermined in accordance with the provision of this paragraph:\n (1) The court shall determine the combined parental income.\n (2) The court shall multiply the combined parental income up to the\namount set forth in paragraph (b) of subdivision two of section one\nhundred eleven-i of the social services law by the appropriate child\nsupport percentage and such amount shall be prorated in the same\nproportion as each parent's income is to the combined parental income.\n (3) Where the combined parental income exceeds the dollar amount set\nforth in subparagraph two of this paragraph, the court shall determine\nthe amount of child support for the amount of the combined parental\nincome in excess of such dollar amount through consideration of the\nfactors set forth in paragraph (f) of this subdivision and/or the child\nsupport percentage.\n (4) Where the custodial parent is working, or receiving elementary or\nsecondary education, or higher education or vocational training which\nthe court determines will lead to employment, and incurs child care\nexpenses as a result thereof, the court shall determine reasonable child\ncare expenses and such child care expenses, where incurred, shall be\nprorated in the same proportion as each parent's income is to the\ncombined parental income. Each parent's pro rata share of the child care\nexpenses shall be separately stated and added to the sum of\nsubparagraphs two and three of this paragraph.\n (5) The court shall determine the parties' obligation to provide\nhealth insurance benefits pursuant to section four hundred sixteen of\nthis part and to pay cash medical support as provided under this\nsubparagraph.\n (i) "Cash medical support" means an amount ordered to be paid toward\nthe cost of health insurance provided by a public entity or by a parent\nthrough an employer or organization, including such employers or\norganizations which are self insured, or through other available health\ninsurance or health care coverage plans, and/or for other health care\nexpenses not covered by insurance.\n (ii) Where health insurance benefits pursuant to paragraph one and\nsubparagraphs (i) and (ii) of paragraph two of subdivision (e) of\nsection four hundred sixteen of this part are determined by the court to\nbe available, the cost of providing health insurance benefits shall be\nprorated between the parties in the same proportion as each parent's\nincome is to the combined parental income. If the custodial parent is\nordered to provide such benefits, the non-custodial parent's pro rata\nshare of such costs shall be added to the basic support obligation. If\nthe non-custodial parent is ordered to provide such benefits, the\ncustodial parent's pro rata share of such costs shall be deducted from\nthe basic support obligation.\n (iii) Where health insurance benefits pursuant to paragraph one and\nsubparagraphs (i) and (ii) of paragraph two of subdivision (e) of\nsection four hundred sixteen of this part are determined by the court to\nbe unavailable, if the child or children are determined eligible for\ncoverage under the medical assistance program established pursuant to\ntitle eleven of article five of the social services law, the court shall\norder the non-custodial parent to pay cash medical support as follows:\n (A) In the case of a child or children authorized for managed care\ncoverage under the medical assistance program, the lesser of the amount\nthat would be required as a family contribution under the state's child\nhealth insurance plan pursuant to title one-A of article twenty-five of\nthe public health law for the child or children if they were in a\ntwo-parent household with income equal to the combined income of the\nnon-custodial and custodial parents or the premium paid by the medical\nassistance program on behalf of the child or children to the managed\ncare plan. The court shall separately state the non-custodial parent's\nmonthly obligation. The non-custodial parent's cash medical support\nobligation under this clause shall not exceed five percent of his or her\ngross income, or the difference between the non-custodial parent's\nincome and the self-support reserve, whichever is less.\n (B) In the case of a child or children authorized for fee-for-service\ncoverage under the medical assistance program other than a child or\nchildren described in item (A) of this clause, the court shall determine\nthe non-custodial parent's maximum annual cash medical support\nobligation, which shall be equal to the lesser of the monthly amount\nthat would be required as a family contribution under the state's child\nhealth insurance plan pursuant to title one-A of article twenty-five of\nthe public health law for the child or children if they were in a\ntwo-parent household with income equal to the combined income of the\nnon-custodial and custodial parents times twelve months or the number of\nmonths that the child or children are authorized for fee-for-service\ncoverage during any year. The court shall separately state in the order\nthe non-custodial parent's maximum annual cash medical support\nobligation and, upon proof to the court that the non-custodial parent,\nafter notice of the amount due, has failed to pay the public entity for\nincurred health care expenses, the court shall order the non-custodial\nparent to pay such incurred health care expenses up to the maximum\nannual cash medical support obligation. Such amounts shall be support\narrears/past due support and shall be subject to any remedies as\nprovided by law for the enforcement of support arrears/past due support.\nThe total annual amount that the non-custodial parent is ordered to pay\nunder this clause shall not exceed five percent of his or her gross\nincome or the difference between the non-custodial parent's income and\nthe self-support reserve, whichever is less.\n (C) The court shall order cash medical support to be paid by the\nnon-custodial parent for health care expenses of the child or children\npaid by the medical assistance program prior to the issuance of the\ncourt's order. The amount of such support shall be calculated as\nprovided under item (A) or (B) of this clause, provided that the amount\nthat the non-custodial parent is ordered to pay under this item shall\nnot exceed five percent of his or her gross income or the difference\nbetween the non-custodial parent's income and the self-support reserve,\nwhichever is less, for the year when the expense was incurred. Such\namounts shall be support arrears/past due support and shall be subject\nto any remedies as provided by law for the enforcement of support\narrears/past due support.\n (iv) Where health insurance benefits pursuant to paragraph one and\nsubparagraphs (i) and (ii) of paragraph two of subdivision (e) of\nsection four hundred sixteen of this part are determined by the court to\nbe unavailable, and the child or children are determined eligible for\ncoverage under the state's child health insurance plan pursuant to title\none-A of article twenty-five of the public health law, the court shall\nprorate each parent's share of the cost of the family contribution\nrequired under such child health insurance plan in the same proportion\nas each parent's income is to the combined parental income, and state\nthe amount of the non-custodial parent's share in the order. The total\namount of cash medical support that the non-custodial parent is ordered\nto pay under this clause shall not exceed five percent of his or her\ngross income, or the difference between the non-custodial parent's\nincome and the self-support reserve, whichever is less.\n (v) In addition to the amounts ordered under clause (ii), (iii), or\n(iv) of this subparagraph, the court shall pro rate each parent's share\nof reasonable health care expenses not reimbursed or paid by insurance,\nthe medical assistance program established pursuant to title eleven of\narticle five of the social services law, or the state's child health\ninsurance plan pursuant to title one-A of article twenty-five of the\npublic health law, in the same proportion as each parent's income is to\nthe combined parental income, and state the non-custodial parent's share\nas a percentage in the order. The non-custodial parent's pro rata share\nof such health care expenses determined by the court to be due and owing\nshall be support arrears/past due support and shall be subject to any\nremedies provided by law for the enforcement of support arrears/past due\nsupport. In addition, the court may direct that the non-custodial\nparent's pro rata share of such health care expenses be paid in one sum\nor in periodic sums, including direct payment to the health care\nprovider.\n (vi) Upon proof by either party that cash medical support pursuant to\nclause (ii), (iii), (iv) or (v) of this subparagraph would be unjust or\ninappropriate pursuant to paragraph (f) of subdivision one of this\nsection, the court shall:\n (A) order the parties to pay cash medical support as the court finds\njust and appropriate, considering the best interests of the child; and\n (B) set forth in the order the factors it considered, the amount\ncalculated under this subparagraph, the reason or reasons the court did\nnot order such amount, and the basis for the amount awarded.\n (6) Where the court determines that the custodial parent is seeking\nwork and incurs child care expenses as a result thereof, the court may\ndetermine reasonable child care expenses and may apportion the same\nbetween the custodial and non-custodial parent. The non-custodial\nparent's share of such expenses shall be separately stated and paid in a\nmanner determined by the court.\n (7) Where the court determines, having regard for the circumstances of\nthe case and of the respective parties and in the best interests of the\nchild, and as justice requires, that the present or future provision of\npost-secondary, private, special, or enriched education for the child is\nappropriate, the court may award educational expenses. The non-custodial\nparent shall pay educational expenses, as awarded, in a manner\ndetermined by the court, including direct payment to the educational\nprovider.\n (d) Notwithstanding the provisions of paragraph (c) of this\nsubdivision, where the annual amount of the basic child support\nobligation would reduce the non-custodial parent's income below the\npoverty income guidelines amount for a single person as reported by the\nfederal department of health and human services, the basic child support\nobligation shall be twenty-five dollars per month; provided, however,\nthat if the court finds that such basic child support obligation is\nunjust or inappropriate, which finding shall be based upon\nconsiderations of the factors set forth in paragraph (f) of this\nsubdivision, then the court shall order the non-custodial parent to pay\nsuch amount of the child support as the court finds just and\nappropriate. Notwithstanding the provisions of paragraph (c) of this\nsubdivision, where the annual amount of the basic child support\nobligation would reduce the non-custodial parent's income below the\nself-support reserve but not below the poverty income guidelines amount\nfor a single person as reported by the federal department of health and\nhuman services, the basic child support obligation shall be fifty\ndollars per month or the difference between the non-custodial parent's\nincome and the self-support reserve, whichever is greater, in addition\nto any amounts that the court may, in its discretion, order in\naccordance with subparagraphs four, five, six and/or seven of paragraph\n(c) of this subdivision.\n (e) Where a parent is or may be entitled to receive non-recurring\npayments from extraordinary sources not otherwise considered as income\npursuant to this section, including but not limited to:\n (1) Life insurance policies;\n (2) Discharges of indebtedness;\n (3) Recovery of bad debts and delinquency amounts;\n (4) Gifts and inheritances; and\n (5) Lottery winnings,\nthe court, in accordance with paragraphs (c), (d) and (f) of this\nsubdivision may allocate a proportion of the same to child support, and\nsuch amount shall be paid in a manner determined by the court.\n (f) The court shall calculate the basic child support obligation, and\nthe non-custodial parent's pro rata share of the basic child support\nobligation. Unless the court finds that the non-custodial parents's\npro-rata share of the basic child support obligation is unjust or\ninappropriate, which finding shall be based upon consideration of the\nfollowing factors:\n (1) The financial resources of the custodial and non-custodial parent,\nand those of the child;\n (2) The physical and emotional health of the child and his/her special\nneeds and aptitudes;\n (3) The standard of living the child would have enjoyed had the\nmarriage or household not been dissolved;\n (4) The tax consequences to the parties;\n (5) The non-monetary contributions that the parents will make toward\nthe care and well-being of the child;\n (6) The educational needs of either parent;\n (7) A determination that the gross income of one parent is\nsubstantially less than the other parent's gross income;\n (8) The needs of the children of the non-custodial parent for whom the\nnon-custodial parent is providing support who are not subject to the\ninstant action and whose support has not been deducted from income\npursuant to subclause (D) of clause (vii) of subparagraph five of\nparagraph (b) of this subdivision, and the financial resources of any\nperson obligated to support such children, provided, however, that this\nfactor may apply only if the resources available to support such\nchildren are less than the resources available to support the children\nwho are subject to the instant action;\n (9) Provided that the child is not on public assistance (i)\nextraordinary expenses incurred by the non-custodial parent in\nexercising visitation, or (ii) expenses incurred by the non-custodial\nparent in extended visitation provided that the custodial parent's\nexpenses are substantially reduced as a result thereof; and\n (10) Any other factors the court determines are relevant in each case,\nthe court shall order the non-custodial parent to pay his or her pro\nrata share of the basic child support obligation, and may order the\nnon-custodial parent to pay an amount pursuant to paragraph (e) of this\nsubdivision.\n (g) Where the court finds that the non-custodial parent's pro rata\nshare of the basic child support obligation is unjust or inappropriate,\nthe court shall order the non-custodial parent to pay such amount of\nchild support as the court finds just and appropriate, and the court\nshall set forth, in a written order, the factors it considered; the\namount of each party's pro rata share of the basic child support\nobligation; and the reasons that the court did not order the basic child\nsupport obligation. Such written order may not be waived by either party\nor counsel; provided, however, and notwithstanding any other provision\nof law, including but not limited to section four hundred fifteen of\nthis part, the court shall not find that the non-custodial parent's pro\nrata share of such obligation is unjust or inappropriate on the basis\nthat such share exceeds the portion of a public assistance grant which\nis attributable to a child or children. Where the non-custodial parent's\nincome is less than or equal to the poverty income guidelines amount for\na single person as reported by the federal department of health and\nhuman services, unpaid child support arrears in excess of five hundred\ndollars shall not accrue.\n (h) A validly executed agreement or stipulation voluntarily entered\ninto between the parties after the effective date of this subdivision\npresented to the court for incorporation in an order or judgment shall\ninclude a provision stating that the parties have been advised of the\nprovisions of this subdivision and that the basic child support\nobligation provided for therein would presumptively result in the\ncorrect amount of child support to be awarded. In the event that such\nagreement or stipulation deviates from the basic child support\nobligation, the agreement or stipulation must specify the amount that\nsuch basic child support obligation would have been and the reason or\nreasons that such agreement or stipulation does not provide for payment\nof that amount. Such provision may not be waived by either party or\ncounsel. Nothing contained in this subdivision shall be construed to\nalter the rights of the parties to voluntarily enter into validly\nexecuted agreements or stipulations which deviate from the basic child\nsupport obligation provided such agreements or stipulations comply with\nthe provisions of this paragraph. The court shall, however, retain\ndiscretion with respect to child support pursuant to this section. Any\ncourt order or judgment incorporating a validly executed agreement or\nstipulation which deviates from the basic child support obligation shall\nset forth the court's reasons for such deviation.\n (i) Where either or both parties are unrepresented, the court shall\nnot enter an order or judgment other than a temporary order pursuant to\nsection two hundred thirty-seven of the domestic relations law, that\nincludes a provision for child support unless the unrepresented party or\nparties have received a copy of the child support standards chart\npromulgated by the commissioner of the office of temporary and\ndisability assistance pursuant to subdivision two of section one hundred\neleven-i of the social services law. Where either party is in receipt of\nchild support enforcement services through the local social services\ndistrict, the local social services district child support enforcement\nunit shall advise such party of the amount derived from application of\nthe child support percentage and that such amount serves as a starting\npoint for the determination of the child support award, and shall\nprovide such party with a copy of the child support standards chart.\n (j) In addition to financial disclosure required in section four\nhundred twenty-four-a of this article, the court may require that the\nincome and/or expenses of either party be verified with documentation\nincluding, but not limited to, past and present income tax returns,\nemployer statements, pay stubs, corporate, business, or partnership\nbooks and records, corporate and business tax returns, and receipts for\nexpenses or such other means of verification as the court determines\nappropriate. Nothing herein shall affect any party's right to pursue\ndiscovery pursuant to this chapter, the civil practice law and rules, or\nthe family court act.\n (k) When a party has defaulted and/or the court is otherwise presented\nwith insufficient evidence to determine gross income, the support\nobligation shall be based on available information about the specific\ncircumstances of the parent, in accordance with clause (iv) of\nsubparagraph five of paragraph (b) of this subdivision. Such order may\nbe retroactively modified upward, without a showing of change in\ncircumstances.\n (l) In any action or proceeding for modification of an order of child\nsupport existing prior to the effective date of this paragraph, brought\npursuant to this article, the child support standards set forth in\nparagraphs (a) through (k) of this subdivision shall not constitute\ngrounds for modification of such support order; provided, however, that\n(1) where the circumstances warrant modification of such order, or (2)\nwhere any party objects to an adjusted child support order made or\nproposed at the direction of the support collection unit pursuant to\nsection one hundred eleven-h or one hundred eleven-n of the social\nservices law, and the court is reviewing the current order of child\nsupport, such standards shall be applied by the court in its\ndetermination with regard to the request for modification or disposition\nof an objection to an adjusted child support order made or proposed by a\nsupport collection unit. In applying such standards, when the order to\nbe modified incorporates by reference or merges with a validly executed\nseparation agreement or stipulation of settlement, the court may\nconsider, in addition to the factors set forth in paragraph (f) of this\nsubdivision, the provisions of such agreement or stipulation concerning\nproperty distribution, distributive award and/or maintenance in\ndetermining whether the amount calculated by using the standards would\nbe unjust or inappropriate.\n 2. Nothing in this article shall impose any liability upon a person to\nsupport the adopted child of his or her spouse, if such child was\nadopted after the adopting spouse is living separate and apart from the\nnon-adopting spouse pursuant to a legally recognizable separation\nagreement or decree under the domestic relations law. Such liability\nshall not be imposed for so long as the spouses remain separate and\napart after the adoption.\n 3. a. One-time adjustment of child support orders issued prior to\nSeptember fifteenth, nineteen hundred eighty-nine. Any party to a child\nsupport order issued prior to September fifteenth, nineteen hundred\neighty-nine on the behalf of a child in receipt of public assistance or\nchild support services pursuant to section one hundred eleven-g of the\nsocial services law may request that the support collection unit\nundertake one review of the order for adjustment purposes pursuant to\nsection one hundred eleven-h of the social services law. A hearing on\nthe adjustment of such order shall be granted upon the objection of\neither party pursuant to the provisions of this section. An order shall\nbe adjusted if as of the date of the support collection unit's review of\nthe correct amount of child support as calculated pursuant to the\nprovisions of this section would deviate by at least ten percent from\nthe child support ordered in the last permanent support order of the\ncourt. Additionally, a new support order shall be issued upon a showing\nthat the current order of support does not provide for the health care\nneeds of the child through insurance or otherwise. Eligibility of the\nchild for medical assistance shall not relieve any obligation the\nparties otherwise have to provide for the health care needs of the\nchild. The support collection unit's review of a child support order\nshall be made on notice to all parties to the current support order and\nshall be subject to the provisions of section four hundred twenty-four-a\nof this article. Nothing herein shall be deemed in any way to limit,\nrestrict, expand or impair the rights of any party to file for a\nmodification of a child support order as is otherwise provided by law.\n b. Upon receipt of an adjustment finding and where appropriate a\nproposed order in conformity with such finding filed by either party or\nby the support collection unit, a party shall have thirty-five days from\nthe date of mailing of the adjustment finding and proposed adjusted\norder, if any, to submit to the court identified thereon specific\nwritten objections to such finding and proposed order.\n (1) If specific written objections are submitted by either party or by\nthe support collection unit, a hearing shall be scheduled by the court\non notice to the parties and the support collection unit, who shall have\nthe right to be heard by the court and to offer evidence in support of\nor in opposition to adjustment of the support order.\n (2) The party filing the specific written objections shall bear the\nburden of going forward and the burden of proof; provided, however, that\nif the support collection unit has failed to provide the documentation\nand information required by subdivision fourteen of section one hundred\neleven-h of the social services law, the court shall first require the\nsupport collection unit to furnish such documents and information to the\nparties and the court.\n (3) If the court finds by a preponderance of the evidence that the\nspecific written objections have been proven, the court shall\nrecalculate or readjust the proposed adjusted order accordingly or, for\ngood cause, shall remand the order to the support collection unit for\nsubmission of a new proposed adjusted order. Any readjusted order so\nissued by the court or resubmitted by the support collection unit\nfollowing remand by the court shall be effective as of the date the\nproposed adjusted order would have been effective had no written\nobjections been filed.\n (4) If the court finds that the specific written objections have not\nbeen proven by a preponderance of the evidence, the court shall\nimmediately issue the adjusted order, which shall be effective as of the\ndate the order would have been effective had no written objections been\nfiled.\n (5) If the determination of the specific written objections has been\nmade by a family court support magistrate, the parties shall be\npermitted to obtain judicial review of such determination by filing\ntimely written objections pursuant to subdivision (e) of section four\nhundred thirty-nine of this act.\n (6) If the court receives no specific written objections to the\nsupport order within thirty-five days of the mailing of the proposed\norder, the clerk of the court shall immediately issue the order without\nany further review, modification, or other prior action by the court or\nany judge or support magistrate thereof, and the clerk shall immediately\ntransmit copies of the order of support to the parties and to the\nsupport collection unit.\n c. A motion to vacate an order of support adjusted pursuant to this\nsection may be made no later than forty-five days after an adjusted\nsupport order is executed by the court where no specific written\nobjections to the proposed order have been timely received by the court.\nSuch motion shall be granted only upon a determination by the court\nissuing such order that personal jurisdiction was not timely obtained\nover the moving party.\n 4. On-going cost of living adjustment of child support orders issued\nprior to September fifteenth, nineteen hundred eighty-nine. Any party to\na child support order issued prior to September fifteenth, nineteen\nhundred eighty-nine on the behalf of a child in receipt of public\nassistance or child support services pursuant to section one hundred\neleven-g of the social services law may request that the support\ncollection unit review the order for a cost of living adjustment in\naccordance with the provisions of section four hundred thirteen-a of\nthis article.\n