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Father Claims Lack of Jurisdiction in Child Support Hearing

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals, by permission, as limited by his brief, from so much of an order of the Family Court, Kings County, as granted the mother’s objection to an order of the same court, dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction, to the extent of vacating the order, and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction, and the mother cross-appeals, by permission, as limited by her brief, from so much of the order, as granted her objection to the order, only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

A New York Custody Lawyer said that the mother, who at the time resided in Ithaca, filed a petition in the Family Court, Tompkins County, for child support with respect to the parties’ child. At the time, the father resided out of state. Pursuant to an order, the Family Court, Tompkins County, directed the father to pay the mother certain child support. Thereafter, the mother, who stated that she was residing in Brooklyn, filed a petition in the Family Court, Kings County, for an upward modification of child support against the father, who continued to live outside of New York State.

The father argued, inter alia, that the Family Court lacked subject matter jurisdiction to modify the child support, because New York had not remained the “residence” of the mother and/or the parties’ child for purposes of Family Court Act ยง 580-205(a). In an order, the Support Magistrate dismissed the mother’s petition on that ground. The mother filed an objection to the Support Magistrate’s order, arguing that the record developed before the Support Magistrate established that the Family Court had subject matter jurisdiction and that her petition for an upward modification should be heard and determined on the merits.

In reviewing the mother’s objection, the Family Court indicated, among other things, that the Support Magistrate’s findings of fact did not support dismissal of the mother’s petition for lack of subject matter jurisdiction. The Family Court, however, granted the mother’s objections only to the extent of vacating the order, and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

The Court agreed with the Family Court that the Support Magistrate’s order is not supported by the evidence presented at the hearing, but the Family Court erred in not granting the mother’s objection in its entirety since the record was sufficiently developed to establish the existence of subject matter jurisdiction.

The Uniform Interstate family Support Act (UIFSA), adopted in New York as article 5-B of the Family Court Act, grants “continuing, exclusive jurisdiction over” a child support order to the state that issued the order. As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state.

Here, New York was the issuing state for the child support order. As such, New York had continuing, exclusive jurisdiction over that order. Although the father does not reside in the state, New York would retain continuing, exclusive jurisdiction if New York continued to be the residence of the mother and/or the subject child at the time she commenced this proceeding for a modification of child support.

Although the UIFSA does not define the terms “reside” or “residence”, it has been determined that a person is a “resident” of New York State when he or she has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year. An individual may establish his or her residency with documentary evidence, such as a lease, rent receipts, phone bill, utility bills, voter’s registration card, or driver’s license.
Despite the fact that the mother also maintained a residence in Philadelphia where she worked and where the parties’ child attended school, she submitted documentary evidence that supported her testimony that Brooklyn had been and continued to be her place of residence at the time the proceeding was commenced. In this regard, she presented, among other things, a lease for a Brooklyn apartment which listed herself and the subject child as tenants during the relevant time period; a check for partial payment of the monthly rent payable from her bank account held at a New York credit union, which listed her address as being in Brooklyn; New York driver’s licenses issued to her in 2002 and in 2008; and New York Voter Registration Card indicating that she had been registered to vote in Kings County since April 1996.

In view of the documentary evidence, the mother demonstrated that New York remained her residence, allowing New York to retain continuing, exclusive jurisdiction over the child support order. Accordingly, the Family Court should have granted the mother’s objection in its entirety, and we remit the matter to the Family Court, Kings County, for further proceedings on the merits of the mother’s petition for an upward modification of child support.

The amount of support to be awarded to a person should be equated with the capability of the person who will give it. Here in Stephen Bilkis and Associates, our Kings County Child Support attorneys will determine as to the amount of support which a person is entitled to demand from the person who is obliged to give it. For other matters, you can also ask for an advice from our Kings County Family lawyers.

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