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If a NCP is recieving SSDI and children derivative payments…

Customer Question
If a NCP is...

If a NCP is recieving SSDI and children derivative payments in the State of New York- are those benefits counted as the income for calculating child support in New York state

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

New York

Lawyer's Assistant: Have you talked to a lawyer yet?

I am pro Se

Submitted: 9 months ago.Category: Family Law
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Answered in 3 minutes by:
9/12/2017
Family Lawyer: Michael Bradley,
 replied 9 months ago
Michael Bradley
Category: Family Law
Satisfied Customers: 1,434
Experience: Owner at The Protection Group LLC
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SSDI is not considered income in a child support determination

SSDI is considered federal welfare

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Customer reply replied 9 months ago
I am the custodial parent. The non custodial parent receives payments earmarked for the children . It seems that some state treat this as income that helps calculate the Child support payments. I cant find anything in New York though. Seems like a lot is on the Judges discretion.
Customer reply replied 9 months ago
are u there?
Family Lawyer: Michael Bradley,
 replied 9 months ago

so the non custodial parent gets money that is earmarked for the children than live with you?

and the only reason he gets the money is because of the children?

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Customer reply replied 9 months ago
I ( the father) have custody. She gets money earmarked ( derivative payments) for the kids. She is NCP
Family Lawyer: Michael Bradley,
 replied 9 months ago

is there a child support order in place?

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Customer reply replied 9 months ago
No order yet. I want the money to count as income for support calculation. Her lawyers are not using it to keep under the poverty level. She also receives Maintenance from me. I want Child support to offset .
Customer reply replied 9 months ago
Has anything in New york been done that would support me. I see it in Wyoming.
Customer reply replied 9 months ago
Anything? I have to go soon.
Family Lawyer: Michael Bradley,
 replied 9 months ago

I am still looking

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Family Lawyer: Michael Bradley,
 replied 9 months ago

she is on SSDI, the kids gets a monthly amount as well and she keeps is and not you?

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Customer reply replied 9 months ago
correct
Customer reply replied 9 months ago
That would be OK if I can count as income for her
Family Lawyer: Michael Bradley,
 replied 9 months ago

in my opinion yes it is income since she is keeping both

you are supposed to get that and she a credit on child support she would owe

SSDI is income to her, the derivative is added as income as well and then deducted but should not be deducted since she is keeping it

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Customer reply replied 9 months ago
Is there any case or something to support that
Family Lawyer: Michael Bradley,
 replied 9 months ago

try this case

In a recent decision of the Appellate Division, Fourth Department, in Holeck v. Beyel, 145 A.D.3d 1600, 43 N.Y.S.2d 816, the court upheld a direction to a disabled father (the non-custodial parent) to apply to the Social Security Administration to change representative payee of the children’s social security disability (SSD) benefits from the father to the custodial mother. The appellate court also upheld the denial of the father’s request for a reduction in his support obligation by virtue of his loss of the SSD benefits for the children.

Generally, when a disabled parent is qualified for Social Security disability benefits, the children may also qualify to receive benefits on the disabled parent’s work-record. Eligible children can be a biological, adopted or stepchildren. Normally, benefits stop when the child reaches age 18 unless they are disabled. However, if the child at age 18 is still a full-time student at a secondary (or elementary) school, benefits will continue until the child graduates or until two months after the child becomes age 19, whichever is first.

The Fourth Department noted in a child support matter, the trial court has the discretion to consider everything available to support the child. Here, it was determined that the needs of the children would be best served by having the mother, who had primary physical custody, receive directly the SSD benefits for the children.

In 1996 it was held by the Court of Appeals in Matter of Graby v Graby (87 N.Y.2d 605), that Social Security payments received for the benefit of the child of a disabled parent are not to be included as the income of either parent when making calculations under the C.S.S.A. child support formula. Rather such payments are treated as resources of the child, to be considered only to determine whether the parents’ support obligations determined under the formula is unjust or inappropriate. Moreover, Social Security disability benefits paid to a child on the basis of a non-custodial parent’s disability are not to be credited against that parent’s child support obligation.

Here, moreover, the appellate court concluded that because the father failed to establish that he had previously used the payments for the benefit of the children, the Support Magistrate did not err when directing that the father pay to the mother the benefits he received after the mother filed her petition. Such post-petition benefits were not to be considered support arrears. Rather, appellate court validated that the Support Magistrate properly directed the father to provide the mother with funds that were for the children’s social security payment that the father received which he neither gave to the mother, nor used for the children’s benefit.

The father’s request for a reduction of his child support obligation was properly rejected. The father requested that reduction after the mother became the payee for the children’s SSD benefits. The father contended that he would be receiving less income due to the change in payee.

However, it is well settled that:

although a dependent child’s Social Security benefits are derived from the disabled parent’s past employment, they are designed to supplement existing resources, and are not intended to displace the obligation of the parent to support his or her children.

Therefore, the fact that the Support Magistrate directed the father to request that the Social Security Administration designate the mother as the children’s representative payee, together with the father’s resulting loss of the use of that money, did not provide a basis for a downward modification of the father’s child support obligation.

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Family Lawyer: Michael Bradley,
 replied 9 months ago

how did your case go?

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