Does Family Court Have Jurisdiction Over Family Offenses Committed Outside of New York?

In a recent case, the Appellate Division had to decide whether the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country.  In Richardson v. Richardson, 2010 N.Y. Slip. Op. 07943 (2nd Dept 2010), the court held that Family Court Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings, and that the Family Court properly exercised jurisdiction over the parties’ petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla.

On March 4, 2009, petitioners filed three separate family offense petitions seeking the entry of orders of protection. The alleged family offenses included, inter alia, assault, harassment, and menacing. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla.

The Appellate Division began its decision by stating that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute.  Included within the actions and proceedings over which the Family Court has been given subject matter jurisdiction are family offense proceedings. Pursuant to the New York State Constitution, family offense proceedings are to determine “as may be provided by law . . . crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household” (N.Y. Const, art VI, § 13 [b] [7]). In light of the provision stating “as may be provided by law,” the grant of jurisdiction to the Family Court over family offense proceedings is permissive and requires legislative action to be implemented.

Family Court Act Article 8 delineates the parameters of the Family Court’s subject matter jurisdiction. The Family Court Act and the Criminal Procedure Law provide the criminal court and the Family Court with “concurrent jurisdiction” over certain enumerated criminal offenses when allegedly committed by one family member against another. Thus, while a family member may choose to seek redress for a family offense in the Family Court, a parallel criminal proceeding also is available. Indeed, the Legislature has specifically authorized a petitioner to commence a family offense proceeding in either or both Family Court and criminal court. Moreover, each court has the authority to issue temporary or final orders of protection.

Family Court Act § 812(1) provides:

Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.

Furthermore, Family Court Act § 812(2)(b) provides: “[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection.” There is no geographic limitation in Family Court Act § 812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. Family Court Act, Article 8, as enacted in 1962, was intended by the New York State Legislature to provide “practical help” to domestic violence victims through the use of civil proceedings in the Family Court.

The history of Family Court Act § 812, provides no indication that the Legislature intended to prohibit the Family Court from exercising jurisdiction over family offenses where the alleged acts occurred in another state or country. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court also limits the jurisdiction of the Family Court. Criminal Procedure Law § 20.40(1)(a) provides, in pertinent part, that “[a] person may be convicted in an appropriate criminal court of a particular county, of an offense . . . when conduct occurred within such county sufficient to establish [a]n element of such offense.”

The Appellate Division concluded “[t]hus, to the extent that the appellant contends that the geographic limitation on the jurisdiction of the criminal court also applies to limit the jurisdiction of the Family Court over family offense proceedings, we hold that contention to be without merit.”

Therefore, if an act that would give a rise to an order of protection takes place anywhere, the party against whom it is committed can seek an order of protection in New York’s Family Court, provided that other procedural requirements are met and personal jurisdiction is obtained.

Upcoming Changes to New York’s Child Support Law and Social Services Law

When New York’s Legislature finally passed the no-fault divorce law and made changes to temporary maintenance and attorneys fees awards, it also passed a number of less publicized changes to the Child Support Standards Act, and related laws, which govern child support in New York. The new legislation modified the Family Court Act, Domestic Relations Law and the Social Services Law, substantially altering the parties’ ability to modify child support awards. It also gave the Family Court additional powers in situations where the party paying child support is unemployed.

The following will describe the most significant changes included in the new legislation.

Family Court Act (FCA) §451 was amended to conform the language of the FCA provision governing the modification of child support orders to the Domestic Relations Law (DRL) so that both provisions provide for a “substantial change in circumstances” as a basis for modification of an order of child support.

This section further provides two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party’s income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section would provide that incarceration is not a bar to finding a substantial change in circumstances under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under FCA §440.

DRL §236B(9)(b) was amended to separate out the “substantial change of circumstances” basis for modification of child support orders into its own section for clarity and would provide two new bases for the modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party’s income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions.

The bill also added a new FCA §437-a to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits.

Another section of the bill amended Social Services Law (SSL) §111-h to provide that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent’s income is derived from the work activity or program. FCA §461 was also amended to reflect the two new bases for modification of an order of child support.

Sections of the bill dealing with modification of child support only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. The amendments, with exception of certain sections of the Tax Law, become effective 90 days after the passing of the bill.  The effective date of the amendments is October 14, 2010.

This bill represents a substantial change to the prior statutory provisions and case law dealing with modification of child support.  While New York’s child support orders were always subject to modification, these changes will make modification of child support easier. I do not know at this time how these provisions will apply to the orders already in place and whether the party seeking modification of child support will be able to use some of the new provisions to modify existing child support orders.

Asserting Equitable Estoppel As a Defense to a Paternity Proceeding

I have previously written about equitable estoppel.  In a typical equitable estoppel situation, the birth parent, typically the mother, asserts equitable estoppel to prevent genetic blood marker testing to determine whether the individual who believed himself to be the child’s father is in fact that child’s biological father.

In a recent case, Juanita A. v. Kenneth Mark N., 2010 N.Y. Slip. Op. 03758 (2010), the Court of Appeals held that a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where there is another father-figure is present in the child’s life.

On June 25, 1994, the child was born. At the time, mother was unmarried, but living with Raymond S., who was listed as the child’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of that child, had another child. When the child was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with the child. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with the child a second time was rebuffed by Raymond, who warned Kenneth not to speak to her again. Kenneth has had no further contact with the child.

In 2006, when the child was approximately twelve years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of the child. However, the Magistrate did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed the child’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (Aikens v. Nell, 63 AD3d 1662 (4th Dept. 2009)). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel.

In Shondel J. v Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals set forth the law applicable to equitable estoppel in paternity and child support proceedings. It held that

purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position.

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child.

Id. at 326.

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father. In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (In re Baby Boy C., 84 NY2d 91, 102n [1994]). Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argued that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, the Court concluded that it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

The Court of Appeals disagreed with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. The Court stated that the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity — when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

As a result of the Court’s decision, the case was remanded for a hearing where Raymond will be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of the child’s best interests.

I think that this is an important case but its application is limited to very specific factual situations.

Varying From Statutory Child Support Percentages

I have previously written about the court’s ability to consider not only the income one or both parties actually reported but the income as should have been reported.  What is not commonly known is that the court, whether Supreme Court or Family Court, can vary from the statutory percentages, by either increasing or reducing child support amounts.

In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses.  The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)).  Family Court providently exercised its discretion in departing from the prescribed percentage.

The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA.  It is unfortunate that the Appellate Division did not discuss the facts of the case in detail.  Whatever the circumstances were that resulted in the court’s decision may applicable in other cases.  If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.

Order of Protection, Divorce and Surveillance

As a divorce attorney, I am periodically asked if hiring a private investigator to follow a spouse is acceptable and whether, if found out, it would result in any negative repercussions. I usually respond that surveillance is acceptable; however, there may be some evidentiary issues with the results that may make them inadmissible during the trial. A recent decision shed some light on these issues.

In Anonymous v. Anonymous, 2010 N.Y. Slip. Op. 20024 (Sup. Ct. Orange Co. 2010), the husband has brought a motion for summary judgment seeking to dismiss the wife’s petition which alleged the husband violated an order of protection pursuant to a settlement stipulation in Family Court.  The order of protection, entered without any finding of fault against the husband, directed him to refrain from committing a family offense or criminal offense against the wife and to stay at least 1000 feet away from the residence and place of employment of the wife except for court-ordered child visitation or to attend church services on Sundays.  The wife’s violation petition alleged that the husband retained a private investigator who recorded on DVD the wife entering a motel and having an affair with a priest assigned to the Church, where the wife was employed.  The wife alleged that the husband furnished the DVD to her superiors at the Church resulting in the wife being forced to resign.  The wife contended that there was no legitimate purpose in the husband having her followed by a private detective and delivering the DVD to Church officials and that doing so was intended by the husband to cause her to lose her employment and cause her personal humiliation and suffering.  The wife claimed that such conduct constitutes a violation of the order of protection.

In opposition to the husband’s motion to dismiss the petition, the wife’s attorney alleges the husband hired the private detective after he filed his answer and counterclaims in the divorce action.  The wife’s attorney contended the husband was not legally bound to turn over the DVD to Church officials.  The wife’s attorney argued that the husband violated the order of protection by acting through an agent, the private detective he hired, to follow and record the wife’s activities, and then turning over the DVD to the church causing the wife to lose her employment.

The court held that it was not improper for the husband to retain the services of a private investigator since the hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.  The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.  Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

With respect to the question of whether delivering the DVD to the Church officials, which was not necessary for the husband to defend or prosecute the divorce action, raised a triable issue of fact that the husband in having the wife followed and recorded by a private investigator intended to inflict emotional and financial harm upon the wife which might constitute a violation of the order of protection.  Although harassment in the second degree often involves conduct which places a person in fear of their physical safety, the language of the statute does not limit itself to only physical threats. If the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment such might qualify as conduct which alarms or seriously annoys another person, and serves no legitimate purpose, constituting harassment in the second degree.

The husband in his motion papers has prima facie demonstrated his entitlement to summary judgment dismissing the petition by evidence showing he did not retain the private investigator for an improper or illegitimate purpose such as harassment or stalking under the Penal Law or intend to make improper use of the private investigator’s work product DVD.  Upon the failure of the wife to demonstrate the existence of a triable issue of fact that the husband committed a crime or family offense against her or otherwise violated the order of protection, the court granted the motion for summary judgment dismissing the petition.

So, the lesson of this case can be summarized as follows.  One, surveillance in divorce cases is a legitimate means of gathering evidence.  Two, surveillance alone will not amount to a violation of an order of protection.  Three, if results of surveillance are delivered to a third party, with possible negative consequences to the party under surveillance, such act may violate an order of protection, if there was no legitimate reason for such disclosure.  If you are seeking to involve a private investigator to follow and observe your spouse or significant other, I would urge you to consult with a divorce attorney before doing so.

Return From Military Service and Reconsideration of Custody Orders

Laws of 2009, Ch 473, effective November 15, 2009, amended the Domestic Relations Law, the Family Court Act and the Military Law to provide that the return of a parent from activation or deployment by the military will automatically be considered a ‘substantial change in circumstance’ for seeking reconsideration of a custody or visitation order. The amendment changes the law enacted last year which requires that all child custody orders issued when a parent is on active military duty be deemed temporary and subject to revision when the parent returns to civilian life.
Laws of 2009, Ch 473, § 1 amended Domestic Relations Law § 75-l ( entitled Military service by parent; effect on child custody
orders) to provide unless the parties have otherwise stipulated or agreed, if an order was issued under Domestic Relations Law § 75-l, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial
change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.
Laws of 2009, Ch 473, § 2 amended Domestic Relations Law 240, subdivision 1 to add a new paragraph (a-2) to read as follows:
(a-2) Military service by parent; effect on child custody orders.
(1) During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent’s ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this section, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent’s child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service, shall be subject to review pursuant to subparagraph three of this paragraph. Any relevant provisions of the Service Member’s Civil Relief Act shall apply to all proceedings governed by this section.
(2) During such period, the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subparagraph three of this paragraph. When entering an order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent’s leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a “leave from military service” shall be a period of not more than three months.
(3) Unless the parties have otherwise stipulated or agreed, if an order is issued pursuant to this paragraph, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.
(4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station.
Laws of 2009, Ch 473, § 3 amended Family Court Act § 651 to add a new subdivision (f) which reads exactly the same as Domestic Relations Law 240, subdivision 1 (a-2).

On November 15, 2009, amendments to the Domestic Relations Law, the Family Court Act and the Military Law became effective that provide that the return of a parent from activation or deployment by the military will automatically be considered a “substantial change in circumstance” for seeking reconsideration of a custody or visitation order.  The amendments change the law enacted last year which requires that all child custody orders issued when a parent is on active military duty are deemed temporary and subject to revision when the parent returns to civilian life.

Specifically, Domestic Relations Law §75-l ( entitled Military service by parent; effect on child custody orders) provides that unless the parties have otherwise stipulated or agreed, if an order was issued under Domestic Relations Law §75-l, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances.  Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.

Domestic Relations Law §240(1), was amended to add a new paragraph (a-2) as follows:

(a-2) Military service by parent; effect on child custody orders.

(1) During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent’s ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this section, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent’s child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service, shall be subject to review pursuant to subparagraph three of this paragraph. Any relevant provisions of the Service Member’s Civil Relief Act shall apply to all proceedings governed by this section.

(2) During such period, the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subparagraph three of this paragraph. When entering an order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent’s leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a “leave from military service” shall be a period of not more than three months.

(3) Unless the parties have otherwise stipulated or agreed, if an order is issued pursuant to this paragraph, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.

(4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station.

The Family Court Act § 651 was amended to add a new subdivision (f) which contains identical language as Domestic Relations Law §240(1) (a-2).

If you are in the military service, the amendments provide some degree of comfort that any changes to the preexisting custody arrangements as a result of being called to the active duty can be reevaluated.  At the same time, in order to do so, the service person will be required to go to court and is likely to require assistance of a family law lawyer.

Constructive Emancipation, Burden of Proof and Contact With the Child By Non-Custodial Parent

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.

Child Support and High Income Non-Custodial Parent

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.

Enforcement of Child Support Arrears and Chapter 13 Bankruptcy

Support Magistrate determined that respondent willfully failed to pay $7,814.90 in child support arrears, and referred matter to Family Court for confirmation. Respondent’s commencement of Chapter 13 bankruptcy stays all actions and proceedings to collect pre-petition claims against debtor and his property. See, 11 USC § 362[a][1]. Although Family Court is precluded from exercising its enforcement powers pursuant to FCA § 454 to recover arrears while Chapter 13 bankruptcy plan is in effect, Family Court finds that it is not prohibited to confirm finding of willful violation already made by Support Magistrate and hold enforcement in abeyance pending completion of the Chapter 13 bankruptcy plan.
In the Matter of a Support Proceeding Marcia T., Petitioner,
v.
Raymond W., Respondent.
F-01769-08/08A
Family Court, Albany County
Decided on September 1, 2009
CITE TITLE AS: Matter of Marcia T. v Raymond W.
Marcia T., Matter of, v Raymond W., 2009 NY Slip Op 51883(U). Parent and Child-Support-Bankruptcy Proceedings Not Bar to Recovery of Arrears under Prior Determination of Support Magistrate. (Fam Ct, Albany County, Sept. 1, 2009, Maney, J.)
APPEARANCES OF COUNSEL
Bixby, Crable & Stiglmeier, PLLC (Carol Stiglmeier of counsel) for Marcia T.
Jeffrey S. Berkun, Esq. for Raymond W.
OPINION OF THE COURT
Gerard E. Maney, J.
By order dated January 14, 2009, the Support Magistrate determined that respondent Raymond W. willfully failed to obey an order of the Court pursuant to Family Court Act § 156 by failing to pay $7,814.90 in child support arrears. The matter was referred to this Judge for confirmation in accordance with Family Court Act § 439 (a).
Counsel for respondent maintains that because respondent filed for Chapter 13 Bankruptcy relief in November 2008, the confirmation hearing must be stayed. Counsel argues that the bankruptcy code contains an automatic stay provision that provides that the filing of a bankruptcy petition operates as a stay of actions or proceeding to recover a claim against the debtor that arose prior to the commencement of the case. Although certain exceptions to the automatic stay provisions exist, counsel argues that none apply in the instant family court proceeding.
The court agrees with counsel that the commencement of a case under Chapter 13 of the United States Bankruptcy Code stays all actions and proceedings to collect pre-petition claims *2 against the debtor and his property (11 USC §362 [a] [1]) or to obtain possession and control of property of the estate (11 USC §362 [a] [3]). The property of the estate, which is broadly defined, specifically includes “earnings” (11 USC §541 [a] [6]; §1306 [a];). Because payments to creditors must come from the debtor’s post-petition earnings, those earning are property of the Chapter 13 estate (11 USC §1306 [a] [2]). Thus, “[t]he claimant seeking to collect arrearages in support obligations is not free to pursue the Chapter 13 debtor’s post-petition earnings” (Margaret Howard, A Bankruptcy Primer for the Family Lawyer, Family Law Quarterly, Volume 31, Number 3, Fall 1997, at 380).
Although the court finds that it is precluded from exercising its enforcement powers pursuant to Family Court Act §454 to recover arrears while the Chapter 13 bankruptcy plan is in effect, it does not find that it is prohibited by the bankruptcy laws from confirming the finding of a willful violation already made by the Support Magistrate and holding its authority to enforce such finding in abeyance pending completion of the Chapter 13 bankruptcy plan.
It is this court’s understanding that petitioner has filed a claim in the bankruptcy proceeding for the support arrears and that such arrears will be payable under the bankruptcy plan. If the payment of arrears is not satisfied when the Chapter 13 bankruptcy plan is closed, petitioner may move to restore the matter to the family court calendar to have the court exercise its enforcement powers to compel the payment of arrears.
Accordingly, after examination and inquiry into the facts and circumstances of the case and after hearing the proofs and testimony offered in relation thereto and based on evidence that a lawful order of support was in effect and respondent had the ability to pay but willfully failed to do so, it is
ADJUDGED that Raymond W. failed to obey the order of this court for the support of his children , A. W. and S. W., and that such failure was willful;
ORDERED that the determination of the Support Magistrate pursuant to Family Court Act § 156 made herein that Raymond W. willfully failed to obey an order of the court is hereby confirmed; and it is further
ORDERED that if the payment of arrears as set forth in the Support Magistrate’s January 14, 2009 order is not satisfied when respondent’s Chapter 13 bankruptcy plan is closed, petitioner may move to restore the matter to the family court calendar to have the court exercise its enforcement powers pursuant to Family Court Act §454.

I have previously written about several different situations involving interaction between New York’s Family Law and bankruptcy.  The basics of divorce and bankruptcy were addressed in this post,  the issues related to the bankruptcy court’s handling of domestic support obligations were addressed in this post, and the issues related to attorneys fees and bankruptcy were addressed in this post.  Because of the complexity of the issues involved, New York courts continue to decide cases were the family law and bankruptcy law interact.  A recent case of Marcia T. v. Raymond W., 24 Misc.3d 1245(A) (Fam. Ct. Monroe Co. 2009), addressed whether Chapter 13 bankruptcy stay prevented recovery of child support arrears and a finding of willful failure to pay.

Respondent father filed for Chapter 13 Bankruptcy relief in November 2008.  Petitioner mother brought a willful violation petition based upon the father’s failure to pay several thousand dollars in child support arrears.  Support Magistrate determined that respondent willfully failed to pay $7,814.90 in child support arrears, and referred matter to Family Court for confirmation in accordance with Family Court Act § 439(a).  Respondent’s lawyer argued that because of Chapter 13 filing, the confirmation hearing must be stayed since automatic stay prevents recovery of any claims that arose prior to the commencement of the bankruptcy case.

The Family Court held that respondent’s commencement of Chapter 13 bankruptcy and resulting automatic stay stops all actions and proceedings to collect pre-petition claims against debtor and his property.   Because payments to creditors must come from the debtor’s post-petition earnings, those earning are property of the Chapter 13 estate, pursuant to 11 U.S.C. §1306 (a)(2).  Thus, the claimant seeking to collect arrearages in support obligations is not free to pursue the Chapter 13 debtor’s post-petition earnings.  It further held that although Family Court is precluded from exercising its enforcement powers pursuant to FCA §454 to recover arrears while Chapter 13 bankruptcy plan is in effect, Family Court found that it is not prohibited to confirm finding of willful violation already made by Support Magistrate and hold enforcement in abeyance pending completion of the Chapter 13 bankruptcy plan.

The court further noted that petitioner has filed a claim in the bankruptcy proceeding for the support arrears and that such arrears will be payable under the bankruptcy plan. If the payment of arrears is not satisfied when the Chapter 13 bankruptcy plan is closed, petitioner may move to restore the matter to the family court calendar to have the court exercise its enforcement powers to compel the payment of arrears.

The above is an excellent illustration of how a Chapter 13 bankruptcy can be utilized to prevent serious problems that a finding of willful violation may present.  Further, since the typical Chapter 13 plan lasts for 5 years, this allows the party paying child support to extend payment of child support arrears over 5 years.  A family law lawyer needs to be familiar with bankruptcy law issues since it is not uncommon for these areas of law to interplay.

Upcoming Changes to New York’s Child Support Statute

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.