The CSSA gives courts the option of not following the guidelines if it determines that doing so would be unfair under the circumstances and may deviate from the calculation under the guidelines.

Additionally, the parents of the child can “opt out” of the Child Support Standards Act by agreeing on a higher or lower amount of child support Domestic Relations Law § 240(1-b)(h) requires that any  “opt out” agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating that the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties’ stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties’ reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate. The requirements of Domestic Relations Law § 240(1-b)(h) may not be waived by either party or by counsel. Cimons v. Cimons. 53 A.D.3d 125; 861 N.Y.S.2d 88 (2008).

THE CSSA provides 10 factors a court or support magistrate must consider and include in its decision if the child support order deviates from the CSSA amount.

The court shall calculate the basic child support obligation, and the non-custodial parent’s pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:

(1) The financial resources of the custodial and non-custodial parent, and those of the child;

(2) The physical and emotional health of the child and his/her special needs and aptitudes;

(3) The standard of living the child would have enjoyed had the marriage or the household not been dissolved;

(4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward the care

and well-being of the child;

(6) The educational needs of either parent;

(7) The determination that the gross income of one parent is substantially less

than the other parent’s gross income;

(8) The needs of the children of the non-custodial parent for whom the non-

custodial parent is providing support who are not subject to the instant action and whose support have not been deducted from income pursuant to [DRL 240 (1-b)(5)(vii)(D)], and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;

(9) Provided the children are not on public assistance, (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and

(10) Any other factors the parties determine are relevant in each case,

the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.

The New York Court of Appeals, in the case of Cassano v. Cassano, 85 N.Y.2d 649 (1995), affirmed that when the parties’ combined income exceeds the statutory cap, the courts may apply the additional paragraph (f) factors, the statutory percentages, or both.  The Court also reaffirmed in Cassano the necessity of courts providing a “record articulation” describing “its choice (whether) to apply the percentage.”

Later, the Fourth Department cautioned that when the combined parental income exceeds the statutory cap of $130,000, the courts cannot just apply the statutory formula.  The court must consider the actual needs of the children, and if the court does not, it is an “abdication of judicial responsibility and renders meaningless the statutory provision setting a cap on strict application of the formula.” Malecki v. Fernandez, 809 N.Y.S.2d 316 (N.Y. App. Div. 2005); Vladlena B. v. Mathias G., 2008 WL 2521283 (N.Y. App. Div. 2008)(Support against blind application of the guidelines in high income cases is found in the First Department which opined that in such cases support should be based on the child’s actual needs and the amount required for a lifestyle appropriate for the child, not on the wealth of both or one of the parties).  Even where the trial court provides an articulate record of the reasons for calculating child support based on a combined parental income greater than the cap, the Fourth Department has been willing to reduce the amount of income applied if it is deemed unnecessarily large based upon the child’s actual reasonable needs.  Michelle M. v. Thomas F., 839 N.Y.S.2d 982 (N.Y. App. Div. 2007).