Child Support

Published on: October 24, 2022

Family Court granted petition to vacate child support arrears settlement agreement. Michelle B. v. Thomas Y., 2022 N.Y. Slip Op. 50020 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

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.

Published on: September 26, 2022

Does the SUNY cap apply in determining parental contribution to educational expenses? Pamela T. v. Marc B., 930 N.Y.S.2d 857 (2011)

by Stephen Bilkis

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.

Published on: September 19, 2022

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)

by Stephen Bilkis

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.

Published on: February 10, 2020

When Considering A Child Support Modification the Court Will Consider Factors Other than Voluntary Job Loss – Vetrano v. Vetrano, 2019 NY Slip Op 8415 (N.Y. App. Div. 2019)

by Stephen Bilkis

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.

Published on: January 20, 2020

Custodial Interference Can Be the Basis for Suspending the Obligation to Pay Child Support – Katz v. Katz, 2008 NY Slip Op 7873 (N.Y. App. Div. 2008)

by Stephen Bilkis

In Katz v. Katz, the Appellate Division considered whether a father’s obligation to pay child support could be suspended because the mother interfered with his visitation.

The general rule is that under New York law a noncustodial parent’s access to a child and his or her obligation to pay child support are separate issues. The court can require a parent to pay child support and also deny the parent visitation. If a custodial parent refuses to allow the noncustodial parent access to the child, the noncustodial parent should petition the court for custody or visitation. If there is a custody or visitation order in place and the custodial parent does not allow the noncustodial parent access to the child as required by the order, then the custodial parent is violating a court order. The aggrieved parent should take up the matter with Family Court. The remedy is not for the noncustodial parent to simply withhold child support. If the custodial parent is willfully interfering with visitation, upon petition the court may suspend or even cancel the noncustodial parent’s obligation to pay child support.

In Katz v. Katz, upon the couple’s divorce, the mother was awarded physical custody of the couple’s children. The father was awarded visitation. The father was also ordered to pay child support in the amount of $10,000 per month. The father petitioned the court to suspend his obligation to pay child support because the mother was not permitting him to have access to the children as required by the custody order. He also requested a recoupment of the child support that he had already paid. In support of his petition the father alleged multiple incidents in which the mother interfered with his parenting time and denied him telephone contact with the children. The mother responded by filing a motion to dismiss.

Published on: December 8, 2019

Visitation Interference May Result in Suspension of Child Support Obligation – Vasquez v. Powell, 111 A.D.3d 754 (N.Y. App. Div. 2013)

by Stephen Bilkis

In this case the Family Court considered whether interference with visitation was a reason to stop paying child support and whether it would cancel child support arrears. The father was awarded custody of the child and the mother visitation. The mother was also required to pay child support to the father. She complained that the father was not complying with the visitation schedule. She argued that she should not have to pay child support if she was not getting access to the child as outlined in the custody order.

The court takes interference with visitation very seriously. When the court issues a custody order, both parents must follow it. This means that the custodial parent must deliver the child to the non-custodial parent at the time and place agreed upon. Willful failure to do so is illegal. If this happens occasionally, the court will likely only chastise the parent and warn him or her to comply with the order. If it happens repeatedly, the court will view it as willful and take steps to ensure that the order is followed. One remedy may be suspending the obligation of the non-custodial parent to pay child support.

In Vasquez, the mother filed a petition to hold the father in civil contempt for violating an order of visitation. As part of the relief sought, the mother requested that her obligation to pay child support be suspended. She also requested that the court cancel her child support arrears. While the court noted that it has the discretion to suspend child support payments for violations of an order of visitation, it also made it clear that the court would not have the authority to cancel arrearages. It further noted that in this case there was no evidence that the father actively interfered with the mother’s visitation. The evidence showed that at times the child did not want to take advantage of the scheduled visitation, and the father did not force the child.

Published on: April 24, 2019

Party Seeks Credit of Child Support for Education Expenses

by Stephen Bilkis

KG v G

NY Slip Op 04278

Pursuant to Section 50011 of the Rules, this case was affirmed with costs. Much like the appellate opinion and in consideration of a substantial downward departure from support set out in the Child Support Standards Act, this court can’t say the Supreme Court was in error. Before incorporating the party’s agreement into a judgement, it addressed the provision in question in the framework of a larger agreement and each of the party’s respective finances in a way that secured adequate child support for each child, as the parties originally intended (Domestic Relations Law 240 (1-b[h]). Judges Difiore, Fahey, Rivera, Wilson and Feinman concur. Judge Stien offered his dissent and Judge Garcia agrees.