Articles Posted in Child Support

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The case before the Family Court of Albany County involved an appeal from an order dated November 16, 2018. This order addressed a modification of child support, highlighting the complexities surrounding parental obligations post-divorce.

In New York, child support modification can be pursued under certain circumstances outlined in the statutes. Family Court Act § 451 provides the grounds for modifying an existing child support order. One such ground is a substantial change in circumstances since the entry of the last child support order. This change must be significant and ongoing, affecting either the financial situation of the parents or the needs of the child.

Another ground for modification is the passage of three years since the entry of the last child support order, or since the order was last modified, whichever is later. This provision allows for a review of child support obligations to ensure they remain fair and appropriate over time.

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In Barra v. Barra, 214 A.D.3d 1224 (N.Y. App. Div. 2023), the court was asked to settle a child support payment dispute.  Part of the evidence submitted was the couple’s divorce decree.

Divorce cases and child support proceedings are inherently interconnected, with the former often laying the groundwork for the latter. In many instances, child support arrangements are established as part of the divorce settlement, outlining the financial obligations of each parent towards their children. Divorce decrees or settlement agreements typically specify the amount of child support to be paid, the frequency of payments, and any additional financial responsibilities related to the children’s upbringing. By establishing clear terms during the divorce process, the court sets the stage for subsequent child support proceedings, providing a framework for resolution and enforcement.

Moreover, divorce cases create legal precedents that guide child support matters in the future. Courts often refer to the terms outlined in the divorce decree when adjudicating disputes related to child support. This ensures consistency and adherence to the original agreement, promoting fairness and stability in child support arrangements.

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In Josefina O. v. Francisco P., 213 A.D.3d 1158 (N.Y. App. Div. 2023), a case before the Family Court of Montgomery County, the court was asked to settle a dispute that arose between separated parents regarding child support and federal stimulus payments. Stimulus payments, also known as economic impact payments or relief checks, are financial assistance provided by the government to individuals or households during times of economic hardship or crisis. These payments are intended to stimulate economic activity, support struggling individuals, and mitigate the effects of financial downturns. Stimulus payments are typically distributed through direct deposits, paper checks, or prepaid debit cards.

Background Facts

The case involves a mother and father who are separated and have five children together, born between 2007 and 2017. In August 2019, the father consented to an order of support, agreeing to pay the mother a weekly sum for child and spousal support. However, in December 2020, the mother filed a family offense petition against the father, citing harassment and assault. Subsequently, in January 2021, she initiated a divorce action.

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A separation agreement in New York is a legal document that outlines the terms and conditions agreed upon by spouses when they decide to live apart. It addresses matters such as division of assets, spousal support, child custody, and visitation. This contractual agreement allows couples to formalize their separation without pursuing immediate divorce proceedings. Once signed, it serves as a binding contract that both parties must adhere to. The separation agreement provides a structured framework for resolving key issues, facilitating a smoother separation process while minimizing potential conflicts and uncertainties.

In Horne v. Horne, a dispute developed over how to interpret the terms of the child support provisions of their separation agreement.

Background Facts

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The case of Movsovich v. Wood, a Family Court Act article 4 proceeding, addresses issues related to child support enforcement. The respondent appeals a decision that addressed the willful violation of a child support order and its consequences.

In New York, prima facie evidence of a willful violation of a child support order arises when there is a presumption that a respondent has sufficient means to support their minor children, and there is evidence demonstrating a failure to pay support as ordered. This presumption is codified n Family Court Act § 454(3)(a). When the party receiving child support presents evidence that the respondent has not complied with the court-ordered support obligations, it creates a prima facie case of willful violation.

Once the custodial parent establishes this prima facie case, the burden shifts to the noncustodial parent (the respondent) to provide credible and competent evidence demonstrating an inability to make the required support payments. The noncustodial parent must present evidence showing reasonable efforts to obtain gainful employment or any other circumstances that might hinder their ability to meet the support obligation.

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In the legal landscape of family matters, the case of Kanya J. v. Christopher K. presents a complex narrative involving parental rights, custody modifications, and support obligations. The intricate web of legal proceedings unfolds as both parents grapple for a favorable outcome in the best interests of their child. This analysis delves into the background facts, key issues, the court’s holding, and the broader implications of the decisions rendered by the Family Court.

Background

In the period preceding this legal dispute, Kanya J. and Christopher K., parents to a shared child and co-parented. The initial arrangement, established in a consent order dated March 2017, conferred sole custody upon the mother, while the father was granted a graduated parenting time schedule. However, as subsequent months unfolded, a cascade of developments triggered a sequence of legal actions. The mother, citing apprehensions about the child’s well-being, sought to restrict the father’s parenting time.

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In a case about a child support arrears settlement agreement, the Family Court was asked to determine whether a mutual mistake of fact was sufficient grounds to vacate the settlement agreement and reinstate the full amount of the arrears.

Background

The mother and father are parents of a child born in 1992.  The father was ordered to pay child support through the Support Collection Unit (“SCU”). However, he quickly accumulated an arrears. As of November 13, 2019, when the parties initially appeared before a Support Magistrate, the father had outstanding arrears of $206,055.44 for the child who was then an adult.

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In New York, as part of a divorce and child support settlement, parents can be required to contribute to their children’s educational expenses.  The SUNY Cap attempts to limit the required contribution of both parents to the cost of State University of New York (SUNY) tuition. In Pamela T. v. Marc B., a high-conflict divorce with substantial assets, the parents disagreed on each parent’s contribution to college tuition of one of their children, with one parent wanting to limit it to the SUNY cap.

Background

Plaintiff Pamela T. and Defendant Marc B. divorced in 2008. They had two children. The parties had similar annual salaries, each earning just over $100,000 per year. Pamela had approximately $1,200,000 in assets. Marc had approximately $600,000 in assets. Both Pamela and Marc attended private colleges and both have law degrees. Their amended stipulation of settlement addressed child custody and child support.  Pamela was awarded custody and Marc was ordered to pay child support. However, it did not address payment of the children’s college tuition and expenses.

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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.

Background

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.

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In this case, upon divorce, the mother was awarded sole custody of the couple’s child and the father was ordered to pay child support.  After losing his job, the father requested a reduction in child support payments. His request was denied by the Support Magistrate.

In New York the court will consider modification in child support if at least 3 years have passed since the original order, if income of either parent has changed by at least 15%, or if there has been some other change of circumstances. Family Court Act § 451(3)(b).  One reason that a parent’s income would decrease is a loss of job.  There have been instances in which parents have actually quit their jobs or intentionally contributed to the loss of their jobs in order to get out of paying child support. That will not work in New York.  The obligation to pay child support and a child support order will not be modified if a parent job loss was due to his or her own actions.  Furthermore, even if the job loss was involuntary, the parent is required to diligently seek another job.  If not, then the court will not consider a modification of the child support order and in will be imputed.

In Vetrano v. Vetrano, the father petitioned the court for a downward modification, alleging that he was wrongfully terminated from his job and that he was not able to find comparable employment. As a result, his income decreased more than 15% from the date of the original child support order, which was more than three years ago.  In addition, the father alleged that the mother’s income had increased by more than 15%. On its face, the father’s petition presented a prima facie case of changed circumstances such that a downward modification in child support was warranted.  However, the Support Magistrate dismissed the father’s petition concluding that the father had not shown that the loss of his job was not his own fault and that he had been diligently searching for a new job.  When the Family Court denied the father’s objections to the Support Magistrate’s decision, the father appealed to the Supreme Court.

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