New York Family Law Blog
A New York Family Lawyer said a couple entered into a separation agreement and it was recited. The parties were aware of the condition of the child support law and their respective rights and obligations. However, they agreed to depart from the child support guidelines, noting that the mother was capable of providing basic support without assistance from the father, and that the child would spend about thirty-five percent of her time with her father during which time he would pay all her expenses. Further, the father will pay for the child’s clothing, with the mother’s assistance in shopping, and would fund a college trust.
Initially, a New York Child Custody Lawyer said the parties followed the terms of the separation agreement. The mother retained the primary custody while the child visited her father once a week and on alternate weekends. In addition, the child spent alternate school holidays and time with the father each summer. During the visits, the father will paid all expenses.
Previously, the three would take shopping trips for clothing, at the father’s expense. The compliance of the agreement broke down when the child refused to accompany her father on a summer trip he had planned, and instead returned to her mother’s home. After that, all significant visits between the father and his daughter came to an end, as well as the father’s financial support to his daughter.
A Westchester County Family Lawyer said the mother then initiated a court proceeding seeking enforcement and modification of the father’s child support obligations. The father filed a cross-petitioned seeking to be relieved from his obligations on the grounds that his daughter abandoned him.
Subsequently, the court denied the request for enforcement, finding that the father had not actually refused to pay for specific reasonable purchases since the mother had not asked him to do so.
A Westchester County Custody Lawyer said the court however granted the request for modification, concluding that the mother had established a change in the situation warranting an increase based upon the best interests of the child. The court also found that since the custodial arrangements had changed and the father was no longer providing child support, the best interests of the child imposed an upward modification of the father’s support obligations.
In denying the enforcement request, the court apparently left the issue with regards the father’s obligation to purchase clothes. The father’s cross-petition to be relieved of his support obligations was also denied.
Consequently, the appellate division reversed the family court’s order that modified the support provisions, concluding that although the mother has demonstrated some increase in expenses associated with the child, she has not demonstrated her inability to meet those expenses without additional assistance from the father. The court further stated that even if they assume that the mother was attempting to prove an unanticipated and unreasonable change in the situation, there was insufficient proof that resulted in an associated increase in the child’s expenses and needs.
The court concludes that the mother has made an adequate showing to justify a modification of the child support obligations. The court therefore reverses the order of the appellate division and remit to court for further proceedings in accordance with the opinion.
Based on records, the terms of a separation agreement incorporated but not merged into a judgment of divorce. However, the needs of a child must take priority over the terms of the agreement when it appears that the best interests of the child are not being met.
In previous case, the court recognized the need for revisions based on maintaining the fairness of the original agreement as between the parties in light of a subsequent unanticipated change in the situation, or undoing an agreement that was unfair.
In the case, the family court determined that there had been a change in the situation and that it was in the child’s best interests to modify the support provisions of the separation agreement. As the appellate division concluded that it was an error.
Sources revealed that there was no showing that the child’s needs were not being met. The family court found that the mother’s income had increased to nearly $56,000 and the father’s was approximately $ 30,000. Moreover, the increase in the mother’s expenses alone did not justify a need of revisions on the provision. However, the appellate division went further and suggested that even if the termination of visitation was an unforeseen and unanticipated, change in the situation there was insufficient proof that it resulted in a concomitant increase in the child’s expenses and needs.
The circumstances of the case do not require the court to engage in the needs of the child, analysis in order to determine whether there has been a sufficient showing to justify the revision of the agreement.
The court similarly declines to extend the test promulgated in the previous related case to the facts. The court concludes, however, that the complete breakdown in the visitation arrangement constituted an unanticipated change in circumstances that created the need for the revision of the provisions.
Under the separation agreement, the parties anticipated that the child would spend approximately thirty-five percent of her time with her father at his sole expense until she reached majority or became emancipated, and he would in addition pay for her clothing. The estimations were part of the basis for the parties’ agreement to deviate from the child support guidelines. The unanticipated change in the father’s relationship with his daughter created a need for the revision of the provision.
It is the necessity of ensuring that the father continues to support his child as agreed upon by the parties, regardless of the inability to perform under the original terms of the agreement that justifies the modification of the support provisions.
Under the agreement, both parents assumed an obligation of support yet, after the provision broke down through no apparent fault of either party, only the custodial parent was providing the support of the child. Sources revealed that the court may re-establish the support obligation of the non-custodial parent by revising the support agreement.
The court also considers whether imposition of the law was the appropriate remedy after the contracted for support provisions failed.
In the case, the parties intentionally opted out the child support guidelines requirements in order to fashion their own support arrangement that was matted with their respective rights. The two discrete support obligations directly linked to continue the visitation between father and daughter were the obligation to provide support during visits and the obligation to shop jointly and pay for the child’s clothing. When the arrangement broke down, those two support provisions failed.
While a return to the guidelines may not be appropriate in all cases, it appears definite and appropriate, in that the parties’ expressed reasons for departing from those standards that are no longer being followed. In calculating the parties’ obligations, the court will need to factor in the parties’ remaining obligations affecting support, such as the mother’s responsibility for her child’s health insurance coverage.
Furthermore, given that the law support computation already contemplates the need for clothing as an element of support, upon the remittal, the court should also give consideration to eliminate the father’s clothing obligation under the original agreement.
Consequently, the court order to reverse the decision and the matter remitted to the family court for further proceedings.
When you and your partner are contemplating on ending your relationship, you can seek legal assistance from the New York Family Lawyers or a New York City Divorce Lawyer. You can also approach a NYC Child Custody Attorney with regards your child’s guardianship. Just visit Stephen Bilkis and Associates office.