Child Support is broken down to basic care and child care (both set amounts no reciepts shown) Due to Covid the children were not in before/ after care from March-June. If a downward modification is now filed will they take into account the child care paid for but not used then and would that be considered a substantial change in circumstances? Also would it be considered a substantial change in circumstances if the children will be on a hybrid school plan resulting in additional child care expense but it being something not permanent in the sense when school opens back up full time they will resume their normal before/after care and not full day care.
A party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification (see Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896; see also Family Ct Act § 451[a]). In determining whether there has been a change in circumstances warranting modification of a parent's child support obligation, the court must consider several factors, including "the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children" (Matter of Fantel v Stamatatos, 59 AD3d 717, 718 [internal quotation marks omitted]; see Matter of Brescia v Fitts, 56 NY2d 132, 141). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued (see Matter of Rosenberg v Rosenberg, 145 AD3d 1015, 1015; Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d 766, 766-767).
The court will most likely be more concerned about the expenses going forward then trying to correct any previously paid support under the existing order. So perhaps the resolution should be to pay based upon a pro rata of your income and the other parent's income based on actual bills rather than a set amount with no bills being required.
You probably should consult with an experienced matrimonial attorney.
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There is a public policy against reimbursement of basic child support payments. I would suggest you discuss the specific facts of your case with a family law attorney to determine your future rights and liabilities. Good luck
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