Posts Tagged ‘order’
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.
Tags: attorney, attorneys fees, Bankruptcy, custody, cutody, discharge, domestic support obligation, Family Court Act, Family Law, lawyer, Livingston, Monroe, nature of support, new york, New York family law, Ontario, order, Orleans, rochester, visitation, Wayne
Posted in attorneys fees, Bankruptcy, child support, court orders, custody, Family Court, Family Law, federal law, New York Law, visitation | No Comments »
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.
Tags: attorney, custody, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, lawyer, Livingston, modification, Monroe, new york, Ontario, order, right, rochester, separated, siblings, Supreme Court, visitation, Wayne
Posted in best interests of the child, court orders, custody, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, visitation | No Comments »
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.
Tags: attorney, birth, child, child support, county, expenses, Family Court, Family Court Act, Family Law, father, lawyer, Livingston, Monroe, mother, new york, New York family law, Ontario, order, Orleans, paternity, petition, rochester, unwed, Wayne
Posted in child support, child support enforcement, court orders, Family Court, Family Law, New York Law, paternity, procedure | 1 Comment »
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.
Tags: agreement, attorney, child support, Child Support Standards Act, downward, Family Court, Family Law, judgment, lawyer, modification, new york, order, stipulation, Supreme Court
Posted in child support, child support enforcement, Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »
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.
Tags: child support, emancipation, Family Law, modification, new york, order, UIFSA
Posted in child support, court orders, emancipation, Family Law, New York Law, UIFSA | No Comments »
