Archive for April, 2009

Parental Interference With Visitation and Suspension of Child Support

Sunday, April 26th, 2009

I have previously written that a child support obligation can be suspended or terminated in situations where the court makes a finding that the child has deliberately severed his/her relationship with a parent, thereby abandoning that parent. However, in order for a court to make a finding of abandonment, the child must be of employable age.

Even if the child is not of employable age, the non-custodial parent’s child support obligation can be suspended or terminated, if the breakdown in the parent-child relationship came as a result of the actions of the custodial parent.

In Ledgin v. Ledgin, 36 A.D.3d 669 (2nd Dept. 2007), the Appellate Division held that interference with visitation rights can be the basis for the cancellation of arrears of maintenance and the prospective suspension of both maintenance and child support. However, such relief is warranted only where the custodial parent’s actions rise to the level of “deliberate frustration” or “active interference” with the noncustodial parent’s visitation rights.

In Frances W. v Steven M., 15 Misc.3d 839 (Fam. Ct. Queens Co. 2007), the court held that petitioner was not entitled to child support where she intentionally aided her sister in brainwashing the child, who is almost 20 years old, into falsely believing that the father had sexually abused her when she was an infant, and otherwise poisoned the child’s relationship with respondent from the time she was four years old. The court stated that since petitioner was an active participant in destroying her niece’s relationship with the father, “she was precluded from obtaining child support from respondent as a matter of fundamental fairness.”

In S.M.B. v D.R.B, 17 Misc.3d 1132(A) (Fam. Ct. Onondaga Co. 2007), petitioner father sought vacatur of order of support contained in parties’ divorce judgment, which incorporated their opt-out agreement. Father began his action after the mother engaged in pattern of active interference and deliberate frustration of child’s relationship with father. Mother was very angry that father paid no more child support than what’s been ordered by court. Mother has withheld father’s access to child since she moved to Florida and remarried. The court found that mother’s acts of alienation were not isolated incidents but a continuing pattern. The court further found that the child now shows no interest in having relationship with father because of mother’s unfortunate endeavors. Father’s support obligation vacated since father met his burden of establishing that mother unjustifiably frustrated his right to reasonable access.

If the child is not of employable age, and the custodial parent did not interfere with the relationship between the non-custodial parent and the child, the non-custodial parent’s obligation to pay child support will not be terminated by the court. Foster v. Daigle, 25 A.D.3d 1002 (3rd Dept. 2006).

Since most of these cases are tried on the issue of parental interference, it is important that each such case, before it is brought, is carefully screened by an experienced family law lawyer. Because parental interference cases require a significant level of proof, it is important that a petitioner is represented by an attorney familiar with such cases.

Divorce, Equitable Distribution and Marital Fault

Sunday, April 19th, 2009

I am often asked whether as a lawyer, I am able to persuade the court to divide the parties’ assets unequally in situations where one of the parties had an affair, engaged in some acts of domestic violence, or committed repeated acts of verbal and emotional abuse. In nearly every case, my response is that in most of the cases, marital fault is irrelevant to the equitable distribution issues.

The New York State Legislature, in 1980, enacted the Equitable Distribution Law (“EDL”) (codified as Domestic Relations Law § 236 B). The adoption of which had been advocated because the traditional common law theory of property resulted in inequities upon the dissolution of a marriage. The EDL was premised on the entirely new theory that a marriage is an economic partnership to which both parties contribute as spouse, wage earner or homemaker, and mandates the equitable distribution of marital assets based upon the circumstances of each particular case. Under the EDL, the distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-enumerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home. Domestic Relations Law §236(B)(5)(d) lists 13 factors to be considered when making an equitable distribution award, which factors encompass, among other things, the income and property of each party at the time of the marriage and at the time the divorce action was commenced, the duration of the marriage, the age and health of the parties, a maintenance award if one had been issued, and the non-titled spouse’s direct or indirect contributions to the marriage.

It is now recognized that marital fault may be taken into account under the EDL’s “catchall provision,” which allows for the consideration of “any other factor which the court shall expressly find to be just and proper” (DRL §236[B][5][d][13]). The criteria which must be considered when evaluating whether marital fault should play a role in any particular case were first stated by the Appellate Division, Second Department, in Blickstein v. Blickstein, 99 A.D.2d 287, appeal dismissed, 62 N.Y.2d 502 (1984), which stated that the “marital misconduct [must be] so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship – misconduct that shocks the conscience’ of the court thereby compelling it to invoke its equitable power to do justice between the parties” (Id. at 292). This guideline was explicitly adopted by the Court of Appeals in O’Brien v. O’Brien, 66 N.Y.2d 576, 589-590 (1985).

In McCann v McCann, 156 Misc.2d 540 (Sup. Ct. 1993), the court addressed issues of marital misconduct. In McCann, a husband had married with the express promise to his wife to make every effort to have children. He subsequently refused to fulfill that promise after several years of lying, and as a result his wife became infertile because of her advanced age. The court found that, while the husband’s misconduct showed “a blatant disregard for the marital relationship” and was “morally reprehensible,” it did not constitute egregious marital conduct sufficient to be considered in equitably distributing the marital assets. To be deemed egregious, the court concluded, conduct must “callously imperil[] the value our society places on human life and the integrity of the human body”.

The only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence. In Havell v. Islam, 301 A.D.2d 339 (1st Dept. 2002), for example, the Appellate Division, First Department upheld the matrimonial court’s award of more than 95% of the marital estate to a wife where her husband beat her with a barbell and a piece of pipe, thereby breaking her nose, jaw and some of her teeth, causing multiple contusions and lacerations, along with neurological damage and other serious injuries. While the husband pleaded guilty to first-degree assault on his wife, the First Department accepted the lower court’s finding that the husband’s attack amounted to attempted murder and constituted egregious marital fault. Egregious fault has also been found in instances of rape, kidnapping , and protracted and severe physical abuse.

Conversely, conduct that courts have found not to be egregious include adultery , alcoholism, abandonment , and verbal harassment coupled with several acts of minor domestic violence.

A recent example of how high this standard is set, was demonstrated in Howard S. v. Lillian S., 2009 N.Y. Slip Op 01880 (1st Dept. 2009). In Howard S., the wife allegedly misrepresented to her husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover.

The husband married the wife in May 1997 and they had four children. In February 2004, the wife had an extramarital affair with an unnamed man and became pregnant with a child, who was born in December 2004. Husband contends that the wife knew or should have known that husband was not the child’s biological father, but concealed that information from him.

According to the complaint, in February 2007, the wife began another affair which “continues to this day.” Wife also concealed this second adulterous relationship from husband, but in the spring of 2007, suggested that they separate and enter into a collaborative law process.

During this period husband had become suspicious about child’s parentage, allegedly due to all the jokes within the circle of family and friends that the child looked nothing like him. Without telling his wife, the husband, in February 2008, arranged for a DNA test of himself and the child. The test confirmed that he was not the child’s biological father. The wife now acknowledges that husband is not the child’s biological father, but claims that she learned this from the DNA test results and denies that she deliberately concealed the truth about the child’s parentage from her husband.

The divorce complaint filed by the husband asserted causes of action for divorce based on both cruel and inhuman treatment and adultery, and asserts a separate claim based on fraud. As damages for the fraud claim, husband seeks to recover his child support expenses for the child, the fees for the parties’ collaborative law process, and profits from the couple’s investments from the time of child’s conception until the commencement of the divorce action.

In May 2008, husband moved for “expanded discovery” to prove “defendant’s egregious fault,” the fraud claim, and her lack of contribution to and dissipation of the marital property. The lower court limited the recoverable damages to husband’s share of the fees for the collaborative law process. The court also denied the husband’s request for expanded discovery as to wife’s marital fault on the ground that her alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution. The husband appealed on the grounds that the court (1) erred by holding that he had failed to state a claim for egregious fault and (2) erred by holding that he could not recover child support payments and certain real estate investments as damages for his fraud claim.

The Appellate Division held that while the wife’s alleged misconduct could not be condoned and was clearly violative of the marital relationship, it did not rise to the level of egregious fault, since she neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them.

In view of the cases cited above, this result was almost certain from the beginning. As painful and harmful lies and deceit in a marriage may be, and Howard S. is as egregious of a case as I have ever seen, unless there was a significant violence between the parties, the court would not alter equitable distribution on the basis of marital fault. At the same time, New York’s equitable distribution principles do not require equal distribution, if other factors of the EDL can be satisfied. If you in a situation where you are dealing with these issues, and considering divorce, I suggest that you speak with an experienced New York divorce lawyer.

Unmarried Fathers, Child Support and Liability for Birth Expenses of the Child and the Mother

Saturday, April 11th, 2009

In a typical child support proceeding brought under the Article 4 of the Family Court Act, the child support is retroactive to the date of the filing of the child support petition.  The Family Court is generally unable to grant child support to a date preceding the filing, unless the child is receiving public assistance.   However, where the paternity is concerned, Family Court’s powers are much broader.  Paternity proceedings are governed by the Article 5 of the Family Court Act.  Article 5 contains two sections that address child support, including costs of birth and related expenses: Section 514 and Section 545.

Under Section 514 of the Family Court Act, the father is liable to pay the reasonable expenses of the mother’s confinement and recovery and such reasonable expenses in connection with her pregnancy, as the court in its discretion may deem proper.  What makes this significantly different from child support proceeding under Article 4 of the Family Court Act, usually Sections 412 and 413, is that the mother’s expenses typically occur well before the petition is filed and even before the child is born.  While Section 514 gives the Family Court at least some discretion in apportioning such expenses, if the mother was receiving public assistance during her pregnancy, the father may be liable to the social services district furnishing such medical assistance and to the state department of social services for the full amount of medical assistance so expended.  See Wayne County Dept. of Social Services ex rel. Van Dusen v. Petty, 273 A.D.2d 943 (4th Dept. 2000).

Under Section 545(1) of the Family Court Act, the father is responsible for child support, retroactive to the earlier of the date of the application for an order of filiation, or, if the children for whom support is sought are in receipt of public assistance, the date for which their eligibility for public assistance was effective.  However, under Section 545(2) of the Family Court Act, the Family Court’s discretionary powers are much broader.  Section 545(2) provides that the court, in its discretion, taking into consideration the means of the father and his ability to pay and the needs of the child, may direct the payment of a reasonable sum or periodic sums to the mother as reimbursement for the needs of the child accruing from the date of the birth of the child to the date of the application for an order of filiation.  In my experience, in dealing with a petition brought under Section 545, the Family Court unambiguously focuses on the unwed father’s present ability to pay, as measured by his current resources and his earning capacity, and not what the unwed father’s ability to pay was at the time of birth.  This may come as an unwelcome surprise to the unwed father, if the petition is brought several years after the child is born.

Yet another difference between proceedings brought under Article 5 of the Family Court Act and Article 4 of the Family Court Act is that under Section 517 of the Family Court Act, proceedings to establish the paternity of a child, and to establish liability for mother’s expenses, may be instituted during the pregnancy of the mother or after the birth of the child.

As a lawyer frequently dealing with these issues, I  evaluate my clients’ financial situation at the time of the child’s birth and the time the petition is brought, since the court will focus on my client’s ability to pay.  I also analyze the mother’s finances within the same time frame and also the proof of payment of medical bills.  Ocasionally, these cases are won and lost on the issue of admissibility of the medical bills.

Downward Modification of Child Support

Monday, April 6th, 2009

I have mentioned last week that I have been seeing a significant increase in Family Court and Supreme Court filings seeking downward modification of child support. Most of these filings were brought on by a non-custodial parent after a loss of employment. In today’s economy, a loss of employment is not uncommon, so the courts are dealing with a significant rise in downward modification petitions.

There are two different situations that may arise when a non-custodial parent seeks downward modification of child support. First, if the child support was established by a stipulation or an agreement, that parent must establish that the loss of employment represents an unreasonable and unanticipated change in circumstances since the time of the stipulation to justify a modification, and that the alleged changes in that party’s financial position was not of his/her own making. See Connolly v. Connolly, 39 AD3d 643 (2nd Dept. 2007); Terjesen v. Terjesen, 29 A.D.3d 705 (2nd Dept. 2007). Additionally the party who lost employment will also have to establish that he/she used his/her best efforts to obtain employment commensurate with his/her qualifications and experience. Cox v. Cox, 20 A.D.3d 527 (2nd Dept. 2005). Further, allegations of a reduction in actual income are insufficient to support an application for a downward modification, as a matter of law, where contractual support obligations are based on a payor’s ability to earn rather than on his or her actual income at the time of the execution of such stipulation or agreement. Ellenbogen v. Ellenbogen, 6 A.D.3d 1026 (3rd Dept. 2004).

If the child support order was set by the court after a hearing, the parent seeking the modification of a child support obligation has the burden of establishing that there has been a substantial and unforeseen change in circumstances warranting a change in the support obligation. See Ketchum v. Crawford, 1 A.D.3d 359 (2nd Dept. 2003); Cadwell v. Cadwell, 294 AD2d 434 (2nd Dept. 2002). This standard is much easier to meet than the one applicable to the situations where child support was set by a stipulation or an agreement.

Depending on the circumstances, a downward modification case will fall in one of the two situations discussed above. Before commencing any proceeding, discuss your situation with an experienced New York family law lawyer to make sure that the proceedings are properly commenced and that you can meet the applicable legal standard.