New York Family Law Blog
Anna O’Connor is the respondent and James G. Curcio is the appellant in this case.
The father is appealing to recover child support payments.
The issue became whether or not child support payments that are due can be waived because of an order of judgment. As long as the obligation to make those payments hasn’t occurred, they can be waived.
Facts
In 1988, the two parties were divorced. The settlement resulted in the child living with the mother while the father paid monthly child support fees of $400. Both parties signed and acknowledged the settlement, which means that legally it is enforceable. Part of the terms of the stipulation was that it could not be altered unless both agreed to it in the same manner that the original stipulation was filed. This was followed up on in 1992 when the two agreed in court to move the child support payments to $270 twice a month.
In 1995, a New York Custody Lawyer said the agreement changed again when a written document stated that the daughter would live with the father who would assume all costs for her care, including medical costs. However, it was also provided that if she went back to her mother’s that the previous payments would start again. From February 1995 to April 1999 she stayed with her father for a period of 42 months. The rest of those months were spent with her mother, during which the father paid child support. The mother then filed the motion in 1999 to recover the $540 she claimed was owed to her for that period.
The hearing examiner granted the mothers request because the written document from 1995 was not valid under the terms of the initial agreement. Advisement of the terms of the CSSA would have been required under such an agreement, which did not take place. Her contention is also that because that agreement was never acknowledged in the matter of the previous documents that it is not binding.
In the event that arrears accumulate on child support payments, they cannot be waived at a later date. The law is very clear about ensuring that arrears must be paid to avoid any retroactive alteration of the amounts owed by a parent paying child support. This is to ensure that someone is never rewarded for failing to meet their financial child support obligations.
However, the failure to demand payment in a situation like this is very important. Silence on the issue does not count as a protest that payment is not being met. A Nassau County Family Lawyer said it is also worth noting that the Court of Appeals noted that when an agreement is reached that affects future child support payments that arrears do not accrue. On the other side of the issue however, simply transferring custody of children is not enough to immediately waive the right to child support payments.
It is possible for a couple to come to an agreement that waives the right to future child support payments however. When the mother in this case entered into an agreement that outlined that child support would not be paid during the months when the child lived with the father, essentially she was opting out of the right to receive those payments during the months ahead. Her acknowledgment that the child did spend time living with the father confirms that the document applies.
Because of this, the agreement was valid despite her protests. Therefore, no arrears accumulated based on missed child support payments by the father.
Ruling
The previous order to pay the owing amount of child support is reversed. A Queens Family Lawyer said the branch of the motion that sought recovery of those fees is also denied.
If you encounter legal difficulties, contact Stephen Bilkis & Associates to find out what legal options might be open to you. The circumstances that you are encountering will be understood by our lawyers. They will work with you to protect your interests throughout the proceedings. Convenient locations can be found throughout metropolitan New York. Call any of our offices to receive free a consultation.