Child Support In Shared Custody Situations

Child support under Domestic Relations Law §240 or Family Court Act §413 is not difficult to calculate in situations where there is a parent who clearly has a primary physical residence of the child. However, where the child spends equal time with both parents, these issues become a lot more complicated. Domestic Relations Law §240[1-b](f) requires that “The court shall calculate the basic child support obligation, and the non-custodial parent’s pro rata share of the basic child support obligation”. Therefore, which parent becomes the non-custodial parent in shared custody situation? This question was addressed in the 1998 case of Baraby v. Baraby, 250 A.D.2d 201 (3rd Dept. 1998).

In Baraby, the Appellate Division held that:

where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support.

Since the statute is silent as to joint custody arrangements, the court ruled that for purposes of complying with the statute, one parent must be deemed “custodial” and the other “non custodial.” This step must be taken before a deviation from the support guidelines could be made under Domestic Relations Law §240[1-b](f) and (g). The parent with higher income is declared to be the non-custodial parent for child support calculations. This result problematic in situations where the parents’ incomes are close to each other.

For parents who are contemplating true shared custody, the issues of child support must be carefully addressed in the separation agreement to provide language explaining the contemplated child support arrangement and the reasons the parents are entering into such arrangement. Baraby does not stand for the proposition that the parent with the higher income must pay full child support. The parents are still free to opt out of the Child Support Standards Act, provided that at least minimum statutory child support is being paid, and the reasons for the opt-out are clearly stated.

If the court is deciding these issues in the contest of child support modification, then the party with the higher income should present information allowing the court to make a deviation from the child support guidelines pursuant to Domestic Relations Law §240[1-b](f) and (g).

Failure to Pay Child Support and Federal Criminal Liability

In a case of first impression, defendant, the father of twin daughters, was convicted by a jury in the Federal Court for the Southern District of New York of two counts of willful failure to pay a court ordered child support obligation in violation of 18 USC §228(a). One of the questions of first impression for the Second Circuit Court of Appeals was “whether violation of a single child support order which covers two children gives rise to one or two violations of 18 USC §228.” Conviction is affirmed on one count, vacated on the second, and the matter remanded for resentencing. When Congress leaves a statute ambiguous as to the proper unit of prosecution, “the ambiguity should be resolved in favor of lenity.” Here, because the statute does not clearly distinguish between a “support obligation” and a “court order,” defendant’s willful failure to comply with the underlying order of support for his two daughters justifies the prosecution of only one count for willfully violating an order of support, rather than two counts for failing to pay support for his twin daughters. USA v. Kerley. Decided 9/25/08.

Family Court and Willful Failure to Pay Child Support

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Calculations of Child Support in New York

The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.

The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.

The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.

Child Support Modification and Contents of a Family Court Petition

In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.

Child Support and Imputed Income

It is not infrequent for the non-custodial parent to claim an annual income far less than he/she actually earns. In those situations, the courts can impute additional income to the party paying child support. As held by the Appellate Division, Second Department, in Strella v. Ferro, the court “need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential.” The imputed income can be established in several different ways.

One way to establish that a party’s actual income is higher than his/her reported income is to demonstrate how his/her reported lifestyle could not be supported by the reported income.

In Strella, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:

Here, the father’s claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.

In Barnett v Ruotolo, the Appellate Division, Second Department, held that in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation. In that case, the father did not testify and chose to rely on the financial documentation he had submitted. The father’s financial documentation indicated that his monthly income was only approximately one-third of his stated monthly expenses, and no evidence was submitted to show that these monthly expenses were not being paid in a timely manner. The Appellate Division held that lower court properly exercised its discretion in imputing income based upon the father’s self-reported financial affidavit for the purpose of calculating his child support obligation.

If the party’s expenses exceed his/her reported income, and there is no obvious diminution of the party’s assets, then the reported income is likely to be under-reported. Under those circumstances, the court should look beyond the filed tax return to calculate the appropriate child support amount.

The court can also impute income by averaging what was reported on most recent individual tax returns. In Y.W., v. T-T.J., the Appellate Division, First Department, reversed a child support order of $3,288 per month and remanded the case back for recalculation of the basic child support obligation. The Appellate Division held that since each party claimed that the income as reflected on the other’s tax return was not accurate, and the parties were unable to produce sufficient evidence to otherwise convince the support magistrate about their respective incomes, the magistrate properly decided to impute income to the parties by averaging what was reported on their most recent (2004 and 2005) individual tax returns.

New Child Support Surcharge

New York has recently made changes to its child support enforcement statutes to comply with the new federal requirements. Changes to the fee for child support enforcement services followed a new federal requirement. The states are required to charge an annual fee of $25 in every child support case in which $500 is collected during the federal fiscal year. The fee applies only to those for whom the support is being collected and who never received public assistance. For those who have received pubic assistance, the statute increases the pass-through charge from $50 to $100, as of Oct. 1, 2008, and to $200 as of Jan. 1, 2010, when two or more children are involved.

Parent’s Obligation to Pay College Expenses Does Not Always Terminate at the Age of 21

In New York State, a parent’s obligation to pay child support terminates when the child reaches the age of 21. However, in situations where a parent is charged with the financial responsibility of paying for the child’s college education, this support obligation may extend well beyond the age of 21. In the case of Lamb v. Amigone, 12 A.D.3d 1165 (4th Dept. 2004), the Appellate Division, Fourth Department, held that unless the parties’ Separation Agreement made a specific reference to parental contribution toward college expenses terminating at the age of majority, the parental college expense contribution continued beyond the age of 21.

That result was also reached by the Appellate Division, Fourth Department, in Schonour v. Johnson, 27 A.D.3d 1059 (4th Dept. 2006), where the Court held that where “[i]n their stipulation, the parties did not place any age limitation on their mutual promises to contribute to the costs of their daughters’ undergraduate college educations”, the appellant was obligated to pay for his daughters’ four years of college education regardless of their age.

Similarly, the court can order payment of college expenses even where the child reaches the age of majority if special circumstances exist. See Domestic Relations Law § 240 [1-b] [c] [7]; also, Krouner v. Urbach, 267 A.D.2d 575 (3rd Dept. 1999); Smith v Smith, 174 AD2d 818, 819 (3rd Dept. 1991).

Thus, both stipulations of settlement and settlement agreements must be carefully prepared and reviewed to make sure that they conform with the parties’ intent. Otherwise, the parties may find themselves in court, relitigating provisions of their settlement many years later.

Criminal Penalties Related to Child Support

New York has recently amended two sections of the Penal Law, §260.05 and §260.06, which make it a crime for a parent to voluntarily reduce his or her income, terminate employment or fail to seek employment to circumvent an order of child support. Specifically, §260.05, non-support of a child in the second degree, provides that:

A person is guilty of non-support of a child when:

1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment; or
2. being a parent, guardian or other person obligated to make child support payments by an order of child support entered by a court of competent jurisdiction for a child less than eighteen years old, he or she knowingly fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment.

Penal Law §260.06 makes such failure to support a felony if a person was convicted of violating Penal Law §260.05 within the last 5 years. Such charges are available in conjunction with other remedies available to the recipient of child support under the Family Court Act, the Domestic Relations Law and the Judiciary Law. Both sections take effect on November 1, 2008.

Out-of-State Orders and New York Child Support

In a recent decision, Spencer v. Spencer, the New York Court of Appeals has finally clarified issues related to application of the Uniform Interstate Family Support Act (“UIFSA”).

Prior to Spencer, in situations where a party had a child support order from a state where the age of emancipation was less than 21, the child support order expired due to the age of the child, and if New York courts had jurisdiction over the party, the custodial parent could bring a new child support petition in New York. Since the petition was treated as a new filing, and not a modification of the out-of-state order, the New York courts then could order child support to continue until the age of 21. This was highly inequitable to parties who had child support orders from the states where the age of emancipation was 18, such as Ohio, or 19, such as California.

Spencer was decided under the following facts. The parties in dispute were married and had several children while living in Connecticut. Following divorce, the mother moved to New York while the father continued to reside in Connecticut. When the eldest son turned 18, the Connecticut support order expired. In 2004, the alimony obligation also expired and the father, as the court noted, “began working three days a week as a consultant.” The mother brought a new child support petition in New York. The New York Family Court issued a new order in 2005 directing payment of child support lasting until age 21.

The Court of Appeals held that the New York order was a modification of the Connecticut support order under the one-order policy of the UIFSA. The Court of Appeals stated that the New York Family Court lacked subject matter jurisdiction to modify an out-of-state order, and child support terminated pursuant to the terms of the initial order. As a result of the decision, prior orders entered under similar circumstances should be vacated. Unfortunately, the Court of Appeals did not address whether recoupment of the child support paid under a new New York order is available to the parent who was paying child support.