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Appellate Division determined that child support payments may be suspended if the custodial parent unjustifiably prevented access to the child. Usack v. Usack, 17 A.D.3d 736 (N.Y. App. Div. 2005)


Generally, child support and custody are two different issues.  Parental access is not based on the amount of child support is paid or whether it is paid on time or is in arrears.  This means that a parent who has been ordered to pay chid support cannot stop paying child support simply because they have not had access to the child. In Usack v. Usack, the Appellate Division was asked to review this general rule in circumstances where the custodial parent intentionally prevents the non-custodial, child support paying parent access.

Plaintiff James Usack and Defendant Linda Usack were married for 20 years and had three children. Linda had a good relationship with the children. After Linda had an affair with another man, James filed for divorce. James told the children about the affair, and from that point on, the children’s relationship with Linda was strained. The Supreme Court of New York granted James custody of the children and ordered Linda to pay child support  a portion of the uninsured medical expenses for all three children.

Linda appealed, arguing that her child-support payments should be suspended due to James’s conduct. That request was based upon James’ near complete frustration of any relationship, communication or contact between Linda and her children since December 2001. The court found that James and the three children have rejected every effort of Linda to demonstrate her continued devotion to the children with a vehemence. The court noted that his was remarkable for its undiminished intensity over a protracted period which still continues.  However, the court still found that there was insufficient evidence to attribute the children’s uniform attitudes and behavior to James.

A parent has a statutory duty to support a child until the age of 21.  Family Ct Act § 413 (a). However, the court has determined that if the custodial parent has unjustifiably frustrated the noncustodial parent’s right of reasonable access, child support payments may be suspended.” See Matter of Smith v. Bombard, 294 AD2d 673, 675.

James testified that while there were martial problems in early 2001, the family was “perfectly happy” and Linda enjoyed a close relationship with the children and was very involved in all of their activities until he told the children about the defendant’s affair. He claimed that, they then unilaterally chose to completely ostracize defendant and reject all of her repeated efforts to communicate, to attend their sporting activities or to have any meaningful contact or relationship with her.  James denied actively discouraging or preventing the children’s relationship with defendant. The Appellate Division found James’ credibility to be suspect.

James failed to demonstrate any meaningful efforts on his part to facilitate the children’s continued relationship with their mother. In fact, the court found that by his example, his actions, and his inaction, James orchestrated and encouraged the estrangement of Linda from the children. He exploited their sadness toward her over the affair and manipulated their loyalty to him to punish her for her rejection of him. Furthermore, James  never suggested that the defendant had been other than a dedicated, involved, loving, and hard-working mother who genuinely pursued to have a relationship with the children.

Thus, the court found that Linda met her burden of demonstrating that James deliberately frustrated her relationship and visitation with the children. Therefore, the court suspended Linda’s support obligations until James can demonstrate that he has made good faith efforts to actively encourage and restore Linda’s relationship with the children, and Linda’s visitation with the children.

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