Posts Tagged ‘Child Support Standards Act’
Sunday, March 14th, 2010
One question that I am often asked with respect to child support arrears is whether there is a limit on the amount of child support arrears that can be accrued. My usual response is that there is only one limitation in the Child Support Standards Act with respect to the limits on child support arrears and it exists solely in situations where the payor’s income is below the amount set by the poverty income guidelines for the single person, as reported by the federal Department of Health and Human Services.
Specifically, where the payor’s annual income is below the poverty income guidelines, then in accordance with the Family Court Act §413(1)(g), then payor’s child support arrears are limited to $500.00. For 2009, the federal poverty guideline for a single person was set at $10,830.00. This provision can be very helpful to family law lawyers and their clients since this provision allows for retroactive limitation on child support arrears, but it is limited to those situation where the party who owes child support has an extremely low level of income.
There are some limitations even in situations where the payor’s income was below the poverty guideline amount. The party charged with paying child support couldn’t have voluntarily reduced his/her income, and must demonstrate inability to earn a higher amount (i.e., cannot have income imputed on the basis of ability to pay or other factors). On practical level, the most likely situation where this provision becomes applicable is typically where a party becomes disabled and does not seek downward modification of the child support obligation until after child support arrears have accrued.
What is also interesting about the Family Court Act §413(1)(g), is that it directly contradicts Family Court Act §451, which prohibits the court from reducing or annulling arrears accrued prior to the filing of a modification petition unless the party shows good cause for failure to make the application sooner. The courts were able to harmonize both sections by deciding that if the payor’s income is below the poverty level guideline, then by operation of section 413(1)(g) the arrears had never accrued. Ronald F. v. Kathy Jo O., 25 Misc 3d 1229 (Fam.Ct. Erie Co. 2009)
Tags: attorney, child support arrears, child support enforcement, Child Support Standards Act, county, Family Court, Livingston, Monroe, Ontario, Orleans, rochester, rochester ny divorce lawyer, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, New York Law, Supreme Court, child support, child support enforcement, court orders, divorce, imputed income, procedure | No Comments »
Sunday, March 7th, 2010
While I have repeatedly written about various issues involving New York’s Child Support Standards Act, here, here, here, and here, one issue that was not previously discussed and bears mentioning, is the interplay between the Child Support Standards Act and public assistance received by the parent receiving child support. In Gregory v. Gregory, 68 A.D.3d 770 (N.Y.A.D. 2 Dept), the Appellate Division, Second Department decided the amount of child support payable by the non-custodial parent to the custodial parent was receiving public assistance.
In Gregory, the parents physically separated and the mother retained custody of the children. Eventually, the parents agreed that the father would have primary custody of their two sons, and the mother would have primary custody of their daughter. While there was no written agreement or court order concerning child support, the father claimed that he and the mother agreed that each parent would support the child or children in her or his custody, respectively.
Thereafter, the mother applied for and was awarded public assistance. The mother received public assistance from August 1, 2004, until May 31, 2007, totaling $26,830.67, of which $13,415.44 was attributable to the support of the parties’ daughter, who was the child in mother’s custody. In May 2007 the mother commenced a proceeding seeking child support for the parties’ daughter. The Department of Social Services (DSS) intervened in the proceeding, seeking payment of child support from the father, which sum included the money it had paid to the mother on behalf of the parties’ daughter.
After a hearing, the Support Magistrate calculated the father’s support obligation for his daughter for the period to be $26,006.26, and directed him to pay that amount to the DSS. The Appellate Division held that Family Court’s directive that the father pay the DSS the sum of $26,006.26 was proper. Since the support obligation of a parent of a child receiving public assistance is measured by the child’s needs and the parent’s means, not by the amount of public assistance paid on behalf of the child, the Family Court acted properly in declining to limit the amount required to be paid by the father to the DSS to the child’s share of the public assistance grant. Contrary to the father’s contention, he was not entitled to offset alleged unpaid child support from the mother against the amount he owed to the DSS. During the relevant time period, there was no support obligation imposed upon the mother for the children who were in the custody of the father.
The lesson of this case is that whenever the DSS is involved in assisting the custodial parent, this assistance is likely to come at a high price to the non-custodial parent. What is significant in the opinion is that the typical child assistance payment amounts to a few hundred dollars. On the other hand, the amount of child support owed by the non-custodial parent and calculated on the basis of that parent’s income, can be several times higher. The non-custodial parent will not receive the difference between the two figures since it would be retained by the DSS. In similar situations, depending on the incomes involved, a family law lawyer may recommend to the non-custodial parent to pay the custodial parent the total amount of public assistance privately since it may cost a lot less.
Tags: attorney, child support, child support guidelines, Child Support Standards Act, county, DSS, Family Court, Family Law, Livingston, Monroe, Ontario, Orleans, public assistance, rochester ny divorce lawyer, Wayne
Posted in Child Support Standards Act, Family Court, Family Law, New York Law, child support, child support enforcement | No Comments »
Saturday, January 30th, 2010
One of the most common questions I hear as a part of my family law practice is a question of when a child become emancipated for child support purposes. My usual response is that emancipation of minors depends on a variety of circumstances. The Child Support Standards Act’s provisions dealing with emancipation hold that the child becomes emancipated upon reaching the age of 21, joining military, or getting married. In addition, the child may become constructively emancipated by willingly abandons the parent and withdrawing from parental supervision and control. In addition, the child may become emancipated, assuming the child is of employable age, by becoming economically independent of the parents. If emancipation is sought for a child who is of employable age, and is working, I usually tell my client that the child has to work between 35 and 40 hours per week and generate sufficient income to be economically independent of the parents. In some situations, however, even a full-time job may not be enough.
A recent case, Thomas B. v. Lydia D., 2009 N.Y. Slip. Op. 06789 (1st Dept. 2009), is an excellent illustration of these concepts. In Thomas B., the Appellate Division held that two parents may not, by written agreement, terminate the child support obligation because of the child’s full-time employment, without a simultaneous showing of the economic independence of the child.
Pursuant to a stipulation of settlement entered into as part of the parties’ judgment of divorce, father was obligated to pay annual child support until the parties’ child reached the age of 21 or was otherwise “emancipated.” The stipulation defined emancipation as “the Child’s engaging in full-time employment; full-time employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event.” The father brought a motion seeking to declare the child emancipated and argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005. The mother opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse. His employment at the music store was one of the conditions of that treatment. She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.
The court stated that mere full time employment was not enough, and emancipation would require economic independence from the child’s parents which is not established by merely working a standard, full-time work week. Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, the child cannot be considered economically independent, and thus is not emancipated. This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support. Moreover, the parties cannot contract away the duty of child support. The Appellate Division found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child’s employment was one of the requirements of participation in the halfway house substance abuse program. In Thomas B., it was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time.
One lesson of Thomas B. is that the lawyer dealing with this type of situation must present sufficient evidence to establish the child’s work hours and income, as well as his/her needs and expenses. It is also critical to present testimony as to whether the other parent is meeting the child’s other financial needs, and whether such financial assistance is necessary or is merely voluntary. If you believe that your child became emancipated due to employment, I would recommend consulting with a family law attorney.
Tags: attorney, child support, child support enforcement, Child Support Standards Act, county, economic, emancipation, employment, Family Court, Family Law, independence, Livingston, Monroe, Ontario, Orleans, parent, rochester, rochester ny divorce lawyer, stipulation, Supreme Court, termination, Wayne
Posted in Child Support Standards Act, Family Law, New York Law, Settlement Agreements, Stipulations, Supreme Court, child support, court orders, emancipation, procedure | No Comments »
Saturday, December 12th, 2009
I often see cases involving constructive emancipation which typically arise when the child refuses to have contact with the non-custodial parent. If the contact cannot be reestablished after a period of time, the non-custodial parent can move to terminate the child support obligation, assuming that the non-custodial parent was not at fault for the breakdown in the relationship and the child is of the employeable age. Burden of proof ofconstructive emancipation rests on party making the assertion. Constructive emancipation cases are not easy to prove and are factually intensive. I have previously written about various issues in constructive emancipation here.
A recent example of such case was Dewitt v. Giampietro, 66 A.D.3d 773 (2nd Dept. 2009). According to the Appellate Division, although the daughter refused to have contact with the father after some incident which was not described, the father ceased making attempts to reestablish contact with daughter after approximately one month. According to the Appellate Division, one month period of trying to reestablish a relationship with the daughter could not be considered as a serious effort by the father. The court also noted that the daughter testified that she loved her father and would be willing to re-establish visitation gradually through counseling. According to the Appellate Division, the child’s reluctance to see parent is not considered to be abandonment.
Accordingly, if a non-custodial parent is in a situation where the child of employable age, generally high school graduate or older, is refusing to have any contact with the parent, the parent must keep on trying to reestablish contact for a period of time in excess of several months. Any such contact may take several different forms, and phone calls, email, letters, postcards, and even text messages may be utilized. It is important that the parent remembers the child’s birthdays and other special occasions. Generally, the courts are reluctant to terminate child support and will do so only if the non-custodial parent will demonstrate that the continuing pursuit of the relationship with the child would be fruitless.
Tags: attorney, child, child support, Child Support Standards Act, constructive, constructive emancipation, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, new york, New York family law, Ontario, Orleans, parent, refusal of contact, rochester, Supreme Court, Wayne
Posted in Child Support Standards Act, Family Court, Family Law, New York Law, court orders, emancipation, modification | No Comments »
Sunday, November 1st, 2009
I have previously written about various child support issues, here, here, here and here. While the number of issues is substantial, one situation that comes up periodically, is the one where the non-residential parent earns a substantial income, placing the combined parental income well in excess of the basis economic support under the Child Support Standards Act. While the income limit for basic economic support under the CSSA is about to increase substantially, what happens in situations where the nonresidential parent earns several hundred thousands dollars or more per year?
In a recent decision, Jackson v. Tompkins, 2009 N.Y. Slip. Op. 06550 (2nd Dept. 2009), the Appellate Division, Second Department, held that in high income cases, appropriate determination under F.C.A. §413(1)(f) for an award of child support on parental income in excess of $80,000 should be based upon child’s actual needs and amount required for child to live an appropriate lifestyle, rather than upon wealth. See, Brim v. Combs, 25 A.D.3d 691, 693 (2nd Dept. 2006). The Appellate Division affirmed the Family Court’s order which directed that the father pay $6,700 in monthly child support.
The above decision is consistent with the prior cases, such as Cassano, and its progeny. The Appellate Division cited Brim v. Combs in reaching its holding. That case makes for an interesting reading since the respondent in Brim v. Combs was Sean “Puffy” Combs. In Brim, the mother’s net worth statement and her extensive testimony at the hearing established that her expenses related to the child were $19,148.74 per month, exclusive of the child’s educational, health, medical, dental, school transportation, school supplies/books, security, and summer camp expenses, which in any case are paid by the father. The court further noted that this amount was deemed admitted as fact by the father due to his failure to comply with the compulsory financial disclosure requirements of Family Court Act § 424-a. Accordingly, the Appellate Division held that the Family Court erred in awarding $35,000 in monthly child support to the mother. Instead, the mother should have been awarded monthly child support in the sum of $19,148.74 to satisfy the child’s actual needs and to afford him an appropriate lifestyle (see Family Ct Act § 413).
Thus, if you earn a substantial income and you are obligated to pay child support, your family law attorney would do well to know what are the child’s needs and what are the actual expenses associated with child, and be prepared to challenge any unsubstantiated claims at a hearing.
Tags: attorney, child support, child support guidelines, Child Support Standards Act, county, Domestic Relations Law, Family Court, Family Court Act, Family Law, income, lawyer, Livingston, Monroe, new york, New York family law, Ontario, order, Orleans, rochester, Supreme Court, Wayne
Posted in Child Support Standards Act, Family Court, Family Law, New York Law, child support, child support enforcement, court orders, imputed income | No Comments »
Sunday, September 27th, 2009
New York’s child support statute has been long criticized for its its $80,000.00 cap on the basic economic child support. The critics have argued that since the statute was enacted approximately 20 years ago, the basic economic child support cap figure was too low. New York Legislature apparently heard those concerns. Laws of 2009, Chapter 343 enacted the “child support modernization act” which amended the provisions of the Child Support Standards Act to raise the cap on combined parental income to $130,000.00, effective January 31, 2010, and to provide for the adjustment of the $130,000.00 cap every two years to reflect changes in the Consumer Price Index. The child support percentages of payments that non-custodial parents are obligated to make toward child support were not modified by the amendments. Domestic Relations Law §240 (1-b) (2) and Family Court Act §413 (1) (c) (2) were each amended to provide that the court shall multiply the combined parental income up to the amount set forth in Social Services Law §111-i, (2) (b). Social Services Law §111-i (2)(b) provides that the combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with Domestic Relations Law §240 (1-b) (2) and Family Court Act §413 (1) (c) (2) shall be one hundred thirty thousand dollars; and that beginning January 31, 2012 and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States Department of Labor, Bureau of Labor Statistics, for the two year period rounded to the nearest one thousand dollars. These amendments take effect on January 31, 2010.
While I view the changes as necessary to keep up with economic changes, once the two year recalculation provision takes effect, it is going to make more difficult for family law lawyers to calculate the appropriate child support figures.
Tags: amendment, attorney, child support, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, child support, child support enforcement, court orders, divorce, procedure | No Comments »
Sunday, July 12th, 2009
I frequently see child support petitions in Family Court seeking to modify child support provisions of either judgments of divorce, or stipulations or settlement agreements incorporated in the judgments of divorce. Sometimes these petitions argue that the child support provisions of the judgment of divorce, stipulation or settlement agreement are invalid as violating the Child Support Standards Act. Unfortunately, if brought in the Family Court, these petitions suffer from certain jurisdictional defects as demonstrated in Savini v. Burgaleta, 34 A.D. 686 (2nd Dept. 2006).
In Savini, in 1996, the father entered into a stipulation with the mother which provided that the father would “pay to the [mother] as and for child support 29 percent of his gross salary as defined under the Child Support Standards Act on a weekly basis calculated on actual income.” That stipulation was later incorporated but did not merge into a judgment of divorce.
In a 1997 handwritten agreement, which was neither incorporated nor merged into the divorce judgment, the mother allegedly agreed, inter alia, to accept the sum of $200 per week from the father as child support and not to commence any proceeding to recover the difference between that amount and the percentage of gross salary specified in the prior stipulation.
Subsequently, a child support proceeding was commenced in the Family Court by the mother, and the Family Court Support Magistrate, sua sponte, determined that “the prior Judgment of Divorce and the stipulations did not comply with the Child Support Standards Act” and therefore informed the parties that she would consider the issue of child support de novo. She directed the father, in the interim, to pay child support in the amount $446.15 per week effective February 11, 2005. After a hearing, the Support Magistrate determined, in relevant part, that the father should pay $559.78 per week in child support until June 29, 2005, and $482.57 thereafter, and made the order retroactive to the date of the petition. The Support Magistrate also awarded the mother an attorney’s fee in the sum of $11,990.
The father filed various objections to the Support Magistrate’s findings and order. He claimed that the Support Magistrate was without jurisdiction to hold a de novo hearing on the issue of child support as if the judgment of divorce had never existed. By order entered February 8, 2006, the Family Court, inter alia, denied the father’s objections and father appealed.
The Appellate Division agreed with the father that the Family Court was without subject matter jurisdiction, in effect, to vacate as illegal so much of the judgment of divorce as directed the father to pay child support and, thereafter, to determine the issue of child support de novo. What is particularly interesting in this case was its reasoning. The Appellate Division made this determination on constitutional grounds, stating that New York Constitution, article 6, §13 (c) provides that the Family Court is vested with limited jurisdiction “to determine, with the same powers possessed by the [S]upreme [C]ourt, the following matters when referred to the [F]amily [C]ourt from the [S]upreme [C]ourt: . . . in actions and proceedings for . . . divorce, . . . applications to fix temporary or permanent support . . . or applications to enforce judgments and orders of support”. Similarly, Family Court Act §466 provides, in relevant part, that, unless the Supreme Court directs otherwise, the Family Court may entertain an application to enforce an order or decree of the Supreme Court granting support, or an application to modify such order or decree “on the ground that there has been a subsequent change of circumstances and that modification is required.” The Supreme Court’s judgment of divorce provided, in relevant part, that the Supreme Court “retain[ed] jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing such of the provisions of the stipulation of child support as are capable of specific enforcement, to the extent permitted by law”.
The Court held that “nowhere in the Constitution, in the Family Court Act, or in the judgment of divorce itself, is the Family Court empowered, in effect, to invalidate a stipulation incorporated into the judgment of divorce entered by the Supreme Court. Significantly, the purpose of the mother’s petition was to enforce the terms of the stipulation of October 29, 1996 – not to have it declared illegal. Had either party questioned the legality of the stipulation, the issue should have been determined by the Supreme Court, which had issued the judgment in which the stipulation was incorporated. Accordingly, the Family Court was without jurisdiction to invalidate the stipulation and determine the child support issue de novo.”
What makes this situation different from typical modification of child support, which I previously discussed, here and here, is that fact that the provisions of the judgment apparently violated the Child Support Standards Act. In those situations, the Supreme Court has the jurisdiction to vacate any child support provisions of the judgment and recalculate child support de novo, going back to the original date of the judgment or the parties’ agreement. The Family Court does not have the jurisdiction to do so. Accordingly, this is an important procedural point that should be familiar to most divorce and family law lawyers handling child support issues. If the provisions of the judgment of divorce dealing with child support violate the Child Support Standards Act, the proper venue to address such issues lies in the court that issued the judgment of divorce.
Tags: attorney, child support, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, jurisdiction, lawyer, Livingston, Monroe, new york, New York family law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, Settlement Agreements, Stipulations, Supreme Court, Uncategorized, child support, court orders, divorce, jurisdiction, modification | No Comments »
Monday, May 25th, 2009
As the end of the school year approaches, parents usually begin to look at various activities their children may participate in during the summer. One such popular option is a summer camp, which may be a day camp or a sleep-away camp. I am often asked who is obligated to pay for it.
I have previously written that under New York’s Child Support Standards Act, the parent paying child support is typically obligated to pay a portion of child care and other expenses. In Micciche v. Micciche, 2009 NY Slip Op 03702 (2nd Dept. 2009), the Appellate Division affirmed the principle that the cost of the summer camp is considered to be a part of the child care expense, and as such, both parties are required to contribute their pro-rata share in accordance with their income.
If there are no contrary provisions in the parties’ separation agreement or judgment of divorce, and one of the parents refuses to contribute his or her share of summer camp, I recommend that the other party discuss this issue with an experienced family law lawyer. Sometimes, it only takes a letter from an attorney to resolve such disputes.
Tags: attorney, child care, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, expenses, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, Ontario, Orleans, rochester, summer camp, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, child support, child support enforcement | No Comments »
Monday, May 25th, 2009
Under New York law, child support consists of two elements: “basic” child support and the “add-ons.” Pursuant to Domestic Relations Law §240, New York requires that basic child support be calculated in two parts: (a) the support based on the total combined income of both parents up to $80,000; and (b) the support based on the total combined income of both parents over $80,000. For both parents’ combined adjusted gross income over $80,000, the court has the discretion to apply the same statutory guidelines, and for all practical purposes will do so. See Cassano v. Cassano, 85 N.Y.2d 649 (1995). The result will be the total combined basic child support attributable to both parents for the combined income in excess of $80,000. From the combined basic child support as calculated under the statute, a pro-rata share of each parent’s income is calculated. Each parent’s pro-rata share is a ratio equal to that parent’s adjusted gross income divided by the combined adjusted gross income for both parents. That pro-rata share is used to calculate each parent’s share of child support add-ons.
The parent paying child support is also obligated to pay for his/her pro-rata share of the following add-ons.
Day Care
Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent’s income to the combined income. Reasonable day care expenses vary and each situation should be discussed with an experienced family law lawyer to determine each party’s rights and responsibilities.
Health Care Expenses
Domestic Relations Law §240 (1)(d) provides that the cost of health care insurance shall be allocated in the same proportion as each parent’s income is to the combined parental income. Domestic Relations Law §240 (1-b)(c)(5) provides that reasonable health care expenses not covered by insurance are allocated in the same proportion as each parent’s income is to the combined parental income. Obviously, the parties can opt-out of the CSSA’s provisions with respect to the add-ons. Any provisions with respect to the cost of health insurance are enforceable just like child support provisions.
In Rochester and Monroe County, as well as in surrounding counties, the Supreme Court and Family Court usually require the non-custodial parent to carry health care insurance for the children. However, similarly to child care, there may be situations where it is more beneficial financially for the custodial parent to pay for the cost of health insurance for the children and for the non-custodial parent to contribute his or her share. The parties should be mindful of the cost of health care coverage and should discuss these issues with a family law attorney before entering into a separation agreement or agreeing to a judgment of divorce.
Educational and Extracurricular Expenses
In addition, the parents may be obligated to pay for the cost of extracurricular expenses and educational expenses, such as a private school or college. I have previously discussed issues related to the college costs, and will address issues related to paying for a private school at a later date.
Tags: attorney, child support add-on, Child Support Standards Act, cost, day care, divorce, Domestic Relations Law, Family Court, Family Law, health care insurance, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, unreimbursed medical expenses, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, child support, child support enforcement | No Comments »
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.
Tags: attorney, change in circumstances, child support, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, interference, lawyer, modification, Monroe, new york, New York family law, New York Law, Ontario, parental interference, rochester, Supreme Court, suspension, termination, visitation, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, New York Law, child support, child support enforcement, divorce, modification, visitation | No Comments »
