Posts Tagged ‘order’

Child Support and High Income Non-Custodial Parent

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.

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Posted in Child Support Standards Act, Family Court, Family Law, New York Law, child support, child support enforcement, court orders, imputed income | No Comments »

Divorce Actions and New Automatic Stay Orders

Sunday, September 6th, 2009

Since the enactment of Domestic Relations Law §236(B), often referred to as  the “Equitable Distribution Law,” divorce lawyers have had to deal with transfers of, or encumbrances on, marital property which might frustrate the eventual disposition of a divorce case.

Immediately after the enactment of the Equitable Distribution Law, attorneys attempted to prevent transfers and encumbrances of marital property by various means, such as seeking injunctive relief to prevent or undo any transfers, filing notices of pendency with regard to real property which would form part of equitable distribution, and seeking other forms of relief from the courts.  Eventually, the case law made clear that a notice of pendency cannot be filed in a divorce case since an equitable distribution action did not directly affect the title to, or the possession, use or enjoyment, of real property. This left injunctive relief as the only means to restraining transfers during the pendency of an action.  Since the burden of obtaining an injunction was considerable, the moving party had to make a requisite showing that the party to be restrained was threatening to dispose, or was already disposing, of marital assets so as to adversely affect the movant’s ultimate rights to equitable distribution.  Typically, the burden of making the application, and the expenses of doing so, fell on the non-titled spouse.

The different courts in New York State took different approaches to address this issue.  Here in Rochester, the supreme court justices handling matrimonial cases would issue, if requested, standing orders which restrained the parties from substantially altering their financial positions. However, the standing orders would be issued in most cases after a motion was brought or after a preliminary conference was held.

Now, effective Sept. 1, 2009, there is a statute which provides for an automatic stay in all matrimonial actions. The present DRL §236(B)(2) has been redesignated as DRL §236(B)(2)(a) and subparagraph (b) has been added, which reads:

b. With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are a follows:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

The Office of Court Administration has  promulgated a Rule already and is in the process of issuing an Official Form incorporating the Notice required under the Statute.  Until the official form is issued, a divorce attorney should attach a notice to the summons stating that, upon service, an order is in effect and then reciting, word-for-word, the five elements listed above.  In my experience, the Monroe County Clerk’s Office will provide a form at the time the summons is filed, unless the requisite notice is already attached to the summons.

This legislation basically preserves the status quo during the pendency of a matrimonial action by shifting the burden of seeking relief from a spouse asking for the imposition of an injunction to a spouse moving to vacate or modify that restraint.  What is unclear at this time, is how this automatic order will be enforced, and what are the remedies for its violation.

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Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, Uncategorized, court orders, divorce, equitable distribution, procedure | No Comments »

Pendente Lite Motions And Available Relief

Sunday, July 5th, 2009

A divorce case could easily last for a year or, occasionally, much longer. Therefore, it is common for the parties to seek various forms of relief from the court while the action is pending.  This type of relief is commonly referred to as pendente lite and is usually obtained by making a motion, brought by an order to show cause.  Such motion is usually supported by affidavits, exhibits, and statements of net worth. A pendente lite motion may seek such things as temporary custody of children, temporary schedule of visitation with the minor children, temporary child support, temporary maintenance, exclusive possession of the marital residence, temporary order of protection, interim award of attorneys fees, interim award of expert fees, and an order restraining marital assets.  Since pendente lite motions are made on expedited basis, not all facts may be known at the time the motion is brought.  Once the relief sought in the pendente lite is granted, the court’s decision is unlikely to be reversed on appeal since numerous cases have held that the proper remedy for objections to a pendente lite order is a plenary trial.  As the court stated in Penavic v. Penavic, 60 A.D.3d 1026 (2nd Dept. 2009), “[t]he best remedy for any perceived inequities in the pendente lite award is a speedy trial, at which the disputed issues concerning the parties’ financial capacity and circumstances can be fully explored.” After the final decision is made, the trial court has the power to adjust the pendente lite relief.

The most significant form of pendente lite relief in many cases is temporary maintenance.  As the court stated in Mueller v. Mueller, 61 A.D.3d 652 (2nd Dept. 2009), “pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse . . . with due regard for the  preservation standard of living”. It is the burden of the party seeking pendente lite relief to demonstrate the need for the award sought. The standard of living previously enjoyed by the parties is a relevant consideration in assessing the reasonable needs of a temporary maintenance applicant.

One critical issue that can be addressed by a pendente lite motion is preservation of marital assets. Pursuant to Domestic Relations Law § 234, a court has broad discretion in matrimonial actions to issue injunctive relief in the interest of justice to preserve marital assets pending equitable distribution. Place v. Seamon, 59 A.D.3d 913 (3rd Dept. 2009). Such request for restraints on property transfers can be granted upon the movant demonstrating that the spouse to be enjoined “is attempting or threatening to dispose of marital assets so as to adversely affect the movant’s ultimate rights in equitable distribution”.

Pendente lite financial relief is usually retroactive to the date of filing of the motion.

For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. The courts do not lightly infringe upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage.

Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. The party seeking such relief must present detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince the court that the application is not an effort to force the other party out of the house. Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court may order that a hearing be held to resolve the conflicting versions of the facts. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted. As I have written before, such relief can also be obtained from the Family Court on expedited basis and, occasionally, on ex parte basis,  if the safety of a party is at issue.

A pendente lite motion which requests either child support, maintenance or attorneys fees, must include a statement of net worth as an exhibit, even if the statement of net worth has been filed separately.

One form of relief that is typically not available as a part of a pendente lite application, is the order directing the sale of the marital residence. Such relief can only be obtained after trial.

If a party decides to violate the pendente lite order, the proper application is contempt. Shammah v. Shammah, 22 Misc.3d 822 (Sup. Ct. Nassau Co. 2008).

Usually, a pendente lite motion sets up the parties’ positions with respect to critical issues in their divorce case.  If a lawyer is successful in obtaining the relief sought, his/her client’s position going forward will better and the client’s negotiating posture may improve significantly.  Most  divorce attorneys recognize this and are careful in making pendente lite motions.

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Posted in Domestic Relations Law, Supreme Court, attorneys fees, child support, court orders, custody, divorce, maintenance, pre-nuptial agreement, visitation | No Comments »

Child Support, Equitable Estoppel and Same-Sex Relationship

Monday, June 15th, 2009

I have previously written about issues of equitable estoppel, which may result in non-biological parent being treated as a biological parent of the child. Recently, I came across a case, H.M. v. E.T., 2009 N.Y. Slip Op. 04240 (2nd Dept. 2009) that dealt with applicability of equitable estoppel to child support in a same-sex relationship situation.

In October of 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a “Support Application” with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.’s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child’s birth.  In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.’s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties’ relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.

After the child support proceeding was commenced in Canada, the case was transmitted to the Family Court, Rockland County pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B (hereinafter “UIFSA”).  Initially, the Support Magistrate found that under the present law of New York, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. The Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act Article 5, or in any other article of the Family Court Act, applicable to a controversy between a birth mother and another female concerning the other female’s parentage of a child. Finally, the Support Magistrate, deeming all of H.M.’s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.

Subsequently, after the objections to the Support Magistrate’s Order were filed, the Family Court overturned the Support Magistrate’s Order citing cases where courts “held individuals responsible for the support of a child even though they were not related to the child by biology or adoption.” The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that “a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine's] application.” Then, the Family Court, noting that the subject child was born as a result of E.T.’s “promises,” concluded that H.M.’s allegations, if true, could support a finding that E.T. “should be estopped [from denying] her role as a person responsible to provide support for [that] child.” Accordingly, the Family Court directed a hearing to determine whether E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.”

E.T. appealed from the order of the Family Court. The Appellate Division, Second Department, reversed the Family Court’s order and reinstated the order of the Support Magistrate dismissing the petition. The Appellate Division stated that the basic premise of the petition was that  H.M. who was never married to or in a civil union with E.T., sought to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. Since the Family Court received H.M.’s support application pursuant to UIFSA, it was authorized to determine “parentage” (Family Ct Act § 580-301[b][6]; § 580-701). UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a “similar” proceeding originating in this State, and may only exercise whatever “powers” and provide whatever “remedies” that are “available” in such a proceeding.

The only proceeding in this State “similar” to a proceeding for a determination of “parentage” is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled “paternity proceedings,” only provides a vehicle for resolving controversies concerning a man’s fatherhood of a child.  After analyzing the language of the Family Court Act, the court concluded that a paternity proceeding requires “the male party” to be “the father” of the child.

The court further held that although the doctrine of equitable estoppel can be applied in a proceeding pursuant to Family Court Act  Article 5, when the Family Court applies the doctrine, the Family Court is merely precluding a party from “denying a certain fact”.  This is not the same thing as the Family Court granting equitable relief, something the Family Court lacks the power to do. Therefore, when the Family Court applies the doctrine, the Family Court is doing so as a means of granting relief specifically authorized by the Constitution or statute. That is, the Family Court is applying the doctrine as a means of adjudicating a “male” “the father” of a child. However, H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant. Under these circumstances, the Family Court could not apply the doctrine, and could not reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief.

The logic of the Appellate Division’s decision, its heavy emphasis on the language of the Family Court Act, and especially the use of the term “male”, raise the question of whether a different result would have been reached on these facts if both parties to this litigation were male. Since recent decisions in this area of family law have been gender neutral, it seems likely that the Court of Appeals, if the case is appealed, will likely focus on on whether any such applications should be considered on a gender neutral basis and also, even more importantly, whether the courts will move away from “paternity by estoppel” toward “parentage by estoppel” as a matter of equity. I believe that we may learn the answer to this question in the foreseeable future.

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Posted in Family Court, Family Law, New York Law, UIFSA, child support, court orders, jurisdiction, paternity | No Comments »

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

Sunday, May 31st, 2009

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.

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Posted in Bankruptcy, Family Court, Family Law, New York Law, attorneys fees, child support, court orders, custody, federal law, visitation | No Comments »

Separated Siblings and Their Right of Visitation

Saturday, May 2nd, 2009

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.

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Posted in Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, best interests of the child, court orders, custody, divorce, visitation | No Comments »

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

Saturday, April 11th, 2009

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

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

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

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

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

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Posted in Family Court, Family Law, New York Law, child support, child support enforcement, court orders, paternity, procedure | 1 Comment »

Downward Modification of Child Support

Monday, April 6th, 2009

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

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

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

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

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Posted in Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, New York Law, Settlement Agreements, Stipulations, Supreme Court, child support, child support enforcement, imputed income, modification, procedure | No Comments »

Out-of-State Orders and New York Child Support

Sunday, July 27th, 2008

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

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

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

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

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Posted in Family Law, New York Law, UIFSA, child support, court orders, emancipation | No Comments »