Modification of Visitation Based On the Age of the Child

It is no uncommon to see vistation arrangements involving very young child.  While family lawyers can plan for many different situations, not everything can be planned for or predicted.  What happens to such arrangements when the child gets older?

In a recent case of Sett v. Balcom, 64 A.D.3d 934 (3rd Dept. 2009), the Appellate Division, Third Department, had to address issues related to visitation arrangments put in place when the child was a year old.  Initially, the father was granted two-hour Sunday visitation the mother’s residence, and the mother received sole custody.  The order also permitted unsupervised and additional visitation but only at the mother’s sole discretion.  As the child was now 5 years old, the father brought a modification petition, prompted by the mother’s persistent refusals to permit expanded visitation, and sought joint custody and increased visitation, including overnight visitation.

Following a fact-finding hearing at which both parties testified, Family Court denied the father’s request for joint custody but granted him additional visitation, including overnight visitation.

The Applellate Division held that sound and substantial basis found in record to support Family Court’s decision to modify visitation on ground that petitioner made sufficient showing of change in circumstances warranting modification to promote child’s best interests.  Initial restrictions on father’s visitation stemmed from child’s young age at time and father not having meaningful contact with daughter.  At the time the modification petition was brought, the father was gainfully employed, involved in a stable relationship, lives in home with bedroom for child and enjoys cordial relationship with mother and extended family.  Moreover, when the mother was asked about her objections to increased visitation, the mother’s only stated concern was that the child might be uncomfortable. The mother never voiced any concern about the father’s ability to parent or the child’s safety in his presence. Moreover, again when asked, she raised only two minor concerns about his home, one of which was that it lacked toys. The mother also conceded that the child should have a close relationship with the father and that they played well together during visits.

According to the Appellate Division, nothing in the record—including potential reticence typical of a young child—revealed that expanded visitation would be harmful or detrimental to the child.

Therefore, if you are dealing with a custody and visitation arrangement that entered when the child was young, that arrangement might be ripe for modification. If you believe that a change would be appropriate, discuss your situation with an experienced family law attorney.

Modification of Child Support Orders and Family Court’s Jurisdiction

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.

Attorneys Fees Ordered in Family Court and Discharge in Chapter 7 Bankruptcy

I have previously written how the bankruptcy courts deal with attempted discharge of the so-called domestic support obligations. However, that post focused primarily on discharge of obligation that arose as a result of divorce proceedings and child support. Occasionally, I see an attempt to discharge an obligation arising out of Family Court proceedings, specifically, attorneys fees.

While it is clear that the child support or spousal support obligations are not dischargeable in bankruptcy as domestic support obligations, the question of attorneys fees granted in a child support or other proceeding in Family Court was less clear cut until Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), where the Appellate Division, Third Department, held that the award of counsel fees by the Family Court was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.

In Ross, the mother filed a petition for violation of a prior order of custody and visitation in 2005. In response, multiple cross petitions were filed by the father alleging violations by the mother and seeking modification of custody. In an August 2006 order resolving the parties’ petitions, Family Court sustained the mother’s motion for counsel fees and ordered that the father pay $ 5,000 of her counsel fees. The father subsequently filed for bankruptcy under chapter 7 of the Bankruptcy Code and, in Schedule F of his petition, he listed the award of counsel fees as an unsecured debt. The father was discharged by order of the Bankruptcy Court in January 2007 and, shortly thereafter, the mother commenced the present proceeding in Family Court for the violation of a court order based upon the father’s failure to pay the counsel fees. Contending that the debt had been discharged in bankruptcy, the father moved to dismiss the petition. Family Court, among other things, concluded that the counsel fees awarded in its prior order were a nondischargeable domestic support obligation, denied the father’s motion and granted the mother’s petition in part, finding the father to be in violation of a prior order.

The Appellate Division noted that state and federal courts have concurrent jurisdiction over the issue of the dischargeablity of a particular debt following the discharge of the debtor in bankruptcy. It reviewed the father’s contention that the counsel fees, although awarded in the context of a Family Court proceeding regarding custody and visitation, were not “in the nature of support” for the parties’ children. The Court held that since the mother’s initial petition commencing the proceeding clearly raised issues of financial need and hardship and her motion for counsel fees, which was sustained by Family Court in the August 2006 order, proposed consideration of her circumstances as one basis for an award of counsel fees. The Court held that the term “in the nature of support” is to be given a broad interpretation in the context of the discharge of debt obligations in bankruptcy and agreed with Family Court’s determination that the award of counsel fees in its prior order was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.

The real issue in this case is whether the custody petition really was in the nature of support. The mother’s lawyer was able to persuade the both the Family Court and the Appellate Division that it was. While the Appellate Division relied on the award of attorneys’ fees and the relevant standard under the Family Court Act, an argument can be made that the Court should have looked to the underlying proceeding only and that proceeding dealt exclusively with custody issues. One of the factors in any award of attorneys’ fees is ability to pay, so that can make an award of attorneys fees in any proceeding in Family Court to be in the nature of support.

Paying For Summer Camp and Child Support

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.

Separated Siblings and Their Right of Visitation

I occasionally see cases involving separated siblings.  In those situations, the parents, or the guardians of the children should be aware the siblings, or half-siblings have an independent right of visitation with each other. The Family Court has the same jurisdiction as the Supreme Court to determine visitation of minors, including visitation between siblings.  Family Court Act §651, Domestic Relations Law §71.  DRL §71 provides that “where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or a person on behalf of a child, whether by half or a whole blood, may apply to the family court [for visitation rights] as the best interest of the child may require.”  Thus, in cases involving sibling visitation, like grandparent visitation, the court must first determine whether equitable considerations grant a party standing to bring a petition and then, if so, whether it is in the best interests of the children to award such visitation.  E.S. v. P.D., 8 N.Y.3d 150 (2007).  The court in such a case is charged with determining what is in the best interests of all the children involved.  State ex rel. Noonan v. Noonan, 145 Misc.2d 638 (Sup. Ct. 1989).  The importance of sibling relationships has long been recognized by the courts of this state.  Eschbach v. Eschbach, 56 N.Y.2d 167 (1989).  This is manifested not only in preferring arrangements which allow siblings to live together, but also in ensuring that half-siblings have adequate contact with each other.  Olivier A. v. Christina A., 9 Misc 3d 1104 [A] (Sup. Ct. Suffolk Co. 2005).  The State’s recognition of the importance of siblings maintaining contact with each other is also manifested in Family Court Act §1027-a, which provides that foster care placement of a child with his or her siblings or half-siblings is presumptively in the child’s best interests. See also 18 NYCRR §431.10, which provides that a social services district must make diligent efforts to place siblings or half-siblings in foster care with each other unless such placement is determined to be detrimental to their best interests.

In a recent case, Isabel R. v. Meghan Mc., 23 Misc.3d 1102(A) (Fam. Ct. Dutchess Co. 2009), the court had to decide whether the half-siblings who were living in separate households after their parents’ breakup, were entitled to visitation with each other.  The court found that the evidence demonstrated that the children did indeed have a relationship until that relationship was unilaterally terminated by the mother after she and the children’s father split up.  While the mother argued that she has an absolute and unfettered right to determine whether sibling visitation should take place and that any direction by the court for sibling visitation would violate her constitutional rights. Relying on E.S. v. P.D., supra, the court held that mother’s constitutional argument was meritless and proceeded to decide whether visitation would be in the children’s best interests.  In considering the children’s best interests, the court has considered, among other factors, their prior relationship, the reason visitation was stopped, the reasons given and basis for the respondent’s decision to deny visitation at the present time, the views of the attorneys for the children, the future benefit to the children and the content of the Court’s in camera interviews. The children wished to see each other and expressed no negative feelings about doing so; the children have fond memories of times they spent together and activities they did together.  The court held that under those circumstances, visitation would be in the children’s best interests.

Parental Interference With Visitation and Suspension of Child Support

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.

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

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

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

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

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

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

Recession and Increase in Downward Modifications Petitions

I read New York Times article today that closely parallels my experience over the past few months. As the economy continues to deteriorate and jobs are lost through no fault of the party paying child support, the Family Court has seen a significant increase in petitions seeling downward modification of child support. While the article discusses how the cases are handled in New York City, as opposed to Rochester and nearby counties where I practice, I see a lot of similar issues in our local Family Courts.

I have previously discussed issues related to the contents of a Family Court petition seeking a modification of child support obligation. I should note that downward modification of child support due to a loss of employment is never guaranteed, and anyone seeking downward modification should use assistance of an experienced child support lawyer. I am planning to write a more detailed post on downward modification of child support in the near future.

Same-Sex Spouse Needn’t Be Certified to Adopt Partner’s Child

In November of 2008, I wrote about New York courts granting a divorce to a same sex couple. In C.M. v. C.C. (Sup. Ct. New York Co. October 14, 2008), the trial court held that the New York court had subject matter jurisdiction to grant a divorce to a same sex couple who were married in Massachussetts. The trial court held that in following Martinez v. County of Monroe and other cases dealing with recognition of the same sex marriage, it had the subject marriage jurisdiction and the divorce case between two women could continue. Since that time, we are seeing various rulings that followed the holding in Martinez. A few days ago, in Matter of Donna S., 2009 N.Y. Slip Op. 29009 (Fam. Ct., Monroe County, AC-14386-08), Judge Joan S. Kohout, held that there was no need for the same-sex spouse of a woman due to give birth in March to seek pre-certification to adopt her partner’s child. Judge Kohout ruled that because the couple’s Canadian marriage is recognized under New York law, the spouse could be treated exactly the same as the husband of a woman who became pregnant through donor insemination, in which case neither pre-certification nor an adoption proceeding would be necessary to establish a parental relationship with the child.

According to Judge Kohout’s opinion, Donna R.S. and Lisa P. were married on July 4, 2007, in Ontario, Canada. Lisa has become pregnant through donor insemination, and is due to give birth in March. Donna initiated the process of being approved as an adoptive parent, with the intention of adopting the child when he/she is born. As part of a normal adoption process, she submitted to a home study by a social worker, who produced a positive report, and then she submitted her petition to the court to be “pre-certified” as an adoptive parent, so the adoption procedure could be handled expeditiously after the child is born.

Pre-certification is a legal process that is typically handled at the start of every adoption. A successful pre-certification process is critical and involves filing pleadings with the appropriate court, a home study, child abuse clearance and criminal record check. Once a prospective adoptive parent has been precertified, he/she can proceed with pursuing a domestic adoption. The “certification” includes a homestudy, child abuse clearance and criminal record check prior to the adoption, and a follow-up homestudy before the adoption is finalized. This requirement was brought into being as a result of the infamous Steinberg case, so that all parties in the adoption process are protected.

The petition did not specify that Donna was seeking to adopt any particular child, but merely wished to be certified as qualified in general to be an adoptive parent. The home study made it clear to the court that her intention was to adopt her same-sex spouse’s child.

Judge Kohout considered the pre-certification process to be unnecessary. Pointing out that the Appellate Division’s ruling last year in Martinez means that “the marriage of same sex couples legally married in other jurisdictions must be recognized by New York,” and mentioning as well that Governor David Paterson had directed New York state agencies to “apply statutes and regulations in a gender neutral manner to same sex parties validly married in another jurisdiction,” Judge Kohout decided to treat Donna similarly to the husband of a woman who has become pregnant through donor insemination.

In those situations, an adoption proceeding is unnecessary. Spouse’s parental status is established by the parties’ execution of a consent form, indicating their agreement that the birth mother’s spouse will be the legal parent of the child.

Additionally, Judge Kohout considered an alternative approach: “Since Ms. S. is the spouse of Ms. P., she will at the very least be considered a step-parent to Ms. P.’s child after the child’s birth. Step-parents are not required to be pre-certified as qualified adoptive parents for the purpose of adopting their spouse’s child.” However, step-parents would have to fulfill a one year waiting period to adopt, or get approval to waive the waiting period from the court.

In conclusion, Judge Kohout stated that the situation could be resolved by the statute governing donor insemination, pointing out that “a child born to a married woman by artificial insemination is deemed the legal child of the husband if both spouses execute a consent to that effect. Given the holding in Martinez, it would seem that by the simple execution of a consent, Ms. S. could become the baby’s legal parent without the necessity of an adoption.”

However, since all the paperwork was in order and there was a positive home study report on file, Judge Kohout granted the pre-certification petition, so the petitioner was eligible to adopt a child until the expiration of the petition in May 2010.