Unless your child must necessarily reside at home 24 hours per day and is not in school with an IEP, then the child is away from home for the equivalent of a work day, and you are available for work, though not at twenty-two dollars necessarily. The daycare argument is only partially effective, and the father can be compelled to pay a proportionate share of the daycare costs based upon relative incomes, so the day care is a lessened concern. If a court feels you are employable, and sould be working, full or part time, it can impute income upon you based upon some rationally arrived at figure. However, that income would be applicable to add-ons, but if it does not push the cap of joint incomes over $136,000 annually, will have little to no effect upon the father's obligation. Yes, you can seek modification in support court at any time for changed circumstances.
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The court can impute income to you based on your historical earnings to the extent that you are capable of being employed despite the special needs of the child. However, your income is only relevant for purposes of determining the pro-rata percentages for payment of a babysitter that is utilized because of your work schedule or the payment for any special needs that your child has. Unless the combined income of you and the father is over $136,000, your income is irrelevant for purposes of determining his basic child support obligation to you. It would be relevant for purposes of determining your percentage of the responsibility for add-on expenses for your child, as outlined above.
There appear here two major issues wrapped up together. Your concern is whether given that New York is an income shares state, will the court bump up your non-income into an 'income' for purposes of an upward modification. As to this issue, yes. The child support apparatus is not intended to create a population of stay-at-home moms living off the child support money. To accomplish that end, the court will consider the fact that you can work and that you can place the child into a child care facility and dad will pay his pro rata share of that day care.
The second issue is one of proof. You cannot simply come into court and declare your facts as you state them here. Your ex will chime in and offer information to contradict your assertions. So the second issue is the challenge. How do you prove your status and how do you prove your special needs child's status?
The court will not accept everything you say as true. The burden of proof in a child support case is preponderance of the evidence and you'll have to bring with you proofs of your and your child's status and somehow navigate the rules of evidence (which are slightly relaxed).
The ex will point out the $22 hourly wage you were capable of earning and you will counter otherwise That's the adversarial system at play between a mother and father. And I must suggest you see an attorney to assist you because getting all this packaged to a win is not easy. Also, the ramifications of a low-ball order of support or a minimal increase will compel you to keep refiling for upward mods a few dollars at a time. You'll spend your entire child rearing life in family court.
Speak with a family law lawyer.
The first issue that needs to be addressed is why you are seeking an upward modification. It is important to know how much you are receiving in child support, how that figured was arrived at, and why you believe that you should get more money now. Has his income increased? Have your child's needs increased?
As for the issue of imputing income to you, the court may impute some income, but it is highly doubtful that the court would impute $22/hr, when the only reason you had that job was because of your ex's family business. It was almost like charity, and you will argue that you cannot locate any comparable jobs.
Keep in mind that, depending on your ex's income, the court may order your ex to pay child care expenses and then expect you to work. So be prepared to tell the court that you have been performeing a job searcgh in your area,for a job with your skills (based on whatever job experience you have) and that all of the jobs you have seen listed are for $xx/hour. That will limit the judge's ability to impute income. You could also apply to various positions and then, when you get rejected, tell the court that you have been looking for work and have been unable to find a job. Remember that it is important to print out all of your job searches, job postings, resume emails, etc., to show to the court, because just telling the judge your efforts is not enough -- the courts prefer to see your documentation backing up your story.