Articles Posted in Child support

The New York family law system was built on an assumption that children resulted from a union of one female and one male parent, but social and technological changes have rendered this view far too narrow. Assisted reproductive technology (ART) allows a parent to conceive with the help of a sperm donor. While some states have enacted laws addressing ART, the rights and obligations—or lack thereof—of a sperm donor regarding the child remain unclear in many cases. Two court decisions from 2016 show how difficult this issue can be. In one case, a court held that a man who donated sperm to a lesbian couple is not liable for child support. Another court ruled that a sperm donor has parental rights to the child.

State laws regarding establishment of parentage bear many common elements. Most states presume that a husband is the father of a child born to the wife during the marriage. An unmarried father can claim paternity of a child, or a court can order genetic testing of an alleged father. Several decisions from the U.S. Supreme Court, including 1968’s Levy v. Louisiana, invalidated state laws that treat “illegitimate” children differently than children born to married parents. These decisions probably helped pave the way for many forms of ART.

ART laws are not consistent across the states. Section 702 of the Uniform Parentage Act (UPA) of 2002 expressly states that a donor is not a legal parent of any child conceived as a result of the donation, but New York has not enacted the UPA. New York law states that a child “born to a married woman by means of artificial insemination” is legally the child of the woman and her husband, provided that a licensed medical professional performed the procedure. It says nothing about same-sex married couples or ART performed without medical assistance. Court decisions in New York have mostly found that sperm donors are not legal parents.
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New York child support law establishes guidelines that base the amount of a child support obligation on a percentage of the parents’ combined income. The percentage used in this calculation depends on the number of children who are to be the beneficiaries of the support. The guidelines only apply, however, to the parents’ combined income up to a certain amount. The state is required to adjust this statutory cap every two years, beginning in 2016, based on changes in the consumer price index. New York courts have held that, in order to apply the guideline percentages to income above this upper limit, a court must make specific findings regarding a child’s need for additional support. A New York appellate court addressed this issue last year in a divorce case, Antinora v. Antinora.

New York’s Child Support Standards Act (CSSA) created general guidelines for calculating child support, found in § 240(1-b) of the New York Domestic Relations Law. For one child, the guideline amount of child support is 17 percent of the combined parental income (CPI). This amount is then prorated based on each parent’s share of CPI. Typically, the noncustodial parent will then be obligated to pay their prorated amount to the custodial parent as child support. The percentage increases for each child up to five children. The minimum guideline percentage for five or more children is 35 percent. Courts may set child support in different amounts based on various factors, but the CSSA provides a standard to apply to all cases.

The Domestic Relations Law states that the guideline percentages only apply to CPI up to a certain amount, which is determined by the state based on standards set forth in § 111-I of the Social Services Law. As of April 1, 2016, the CPI amount is $143,000. A court cannot apply the guideline percentages to CPI above that amount without making specific findings regarding certain factors.

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When the parents of one or more minor children file for divorce in New York, a court must make or approve arrangements for the support of the child or children. The child support obligation becomes part of the final judgment of divorce, and it is enforceable like any other court order. Since child support enforcement can involve prosecution in the court system by a state agency, various constitutional concerns can potentially come into play. A New York federal court recently ruled that it lacked jurisdiction to hear a child support obligor’s civil rights claim against the family court officials. The court dismissed the obligor’s claim in Kneitel v. Palos, et al. with prejudice, meaning he is barred from filing it again.

Federal law allows individuals to file suit against federal, state, or local government officials for depriving them “of any rights, privileges, or immunities” while acting in an official capacity. A claim filed under this law is known as a “1983 claim,” after the law’s codification in 42 U.S.C. § 1983. It allows claims for violations of due process, equal protection, and other constitutional rights. Certain public officials may be protected from liability for certain acts, however, and federal courts lack jurisdiction over certain matters.

The Constitution and a wide range of statutes and court decisions have established that the federal government has exclusive jurisdiction over certain matters, the states have exclusive jurisdiction over others, and on many other matters they share jurisdiction. Domestic relations, including divorce, alimony, and child support, have generally remained under the jurisdiction of state governments and state laws. The U.S. Supreme Court has repeatedly affirmed this view, beginning in 1859 in Barber v. Barber, in 1890’s In re Burrus ruling, and in 2004 in Elk Grove Unif. Sch. Dist. v. Newdow.

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When married parents of one or more minor children seek a divorce in New York, they must arrange for the custody and support of the children before a court may make a final order of divorce. Courts welcome efforts by the parties to a divorce to reach an agreement with regard to child support and other issues. Otherwise, a court will decide these issues after a trial. The party entitled to receive support payments (the “obligee”) may enforce a support order against the party ordered to pay support (the “obligor”) by initiating a new proceeding in court. A New York Appellate Court recently considered an obligor’s challenge to a finding that he “willfully” violated a support order in Matter of O’Sullivan v. Schebilski.

A common arrangement for child custody and child support involves a child living with one parent and having visitation with the other parent, while that other parent makes child support payments. A child support obligation remains in effect until the child turns 21, dies, or is legally emancipated. New York courts may take a wide range of factors into consideration when determining the amount of a child support obligation, including the health and educational needs of the child or children, each parent’s income and earning capacity, and any disabilities or needs affecting either parent.

The parties in O’Sullivan are the parents of one child, who was born in 1992. A court issued a support order in July 2005 and modified it in September 2009. It ordered the father/obligor to pay $142 per week in child support, although the O’Sullivan ruling does not state if this was the original or the modified amount. The mother/obligee brought an enforcement action against the obligor in February 2013, claiming that he owed about $80,000 in child support.

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When the parents of one or more children divorce, courts in New York are typically required to issue an order regarding the non-custodial parent’s obligation to make payments for the support of the children. Failing to pay child support is therefore a violation of a court order, even when the parties to a divorce agree to the terms of child support. Courts in this state have broad powers to enforce child support obligations under § 454 of the Family Court Act (FCA). New York’s Child Support Enforcement Unit (CSEU) is authorized to bring enforcement actions in this state against non-custodial parents with child support obligations. In some cases, non-payment of child support can result in jail time, but New York provides multiple methods for the enforcement and collection of amounts owed.

Jail Sentences

A jail sentence is an extreme penalty for a failure to pay child support. It is often reserved for obligors who have substantial arrearages, or who have failed to obey prior enforcement orders. In a recent case involving a celebrity obligor, a New York court released a well-known rapper from jail after he served two months in connection with an alleged $400,000 child support debt. Another rapper was arrested for non-payment of child support, and while media reports did not state how much he allegedly owed, the court set his bond at over $480,000.

Under the FCA, only obligors who “willfully” fail to obey a support order may be subject to jail time. However, § 454(3)(a) of the FCA states that “failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation,” which seems to place most cases of non-payment in the “willful” category. An obligor may present evidence to rebut this presumption of willfulness and to offer alternative methods of payment. In another celebrity case, a former professional basketball player turned over a house to the custodial parent to settle a $900,000 child support arrearage.

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The U.S. House of Representatives recently passed a bill intended to help state child support agencies obtain credit information about child support obligors who are in arrears. Under the Fair Credit Reporting Act (FCRA), when a state child support agency requests credit information about an individual, that individual is currently entitled to 10 days’ notice of the request. H.R. 2091, the “Child Support Assistance Act of 2015,” amends the FCRA to remove the 10-day notice period, ostensibly to deny non-paying parents a 10-day opportunity to alter their finances. The bill is now pending in the U.S. Senate.

Credit information, including debt history, payments on debts, lack of payments on debts, and other details, has become critically important for consumers. Private businesses known as “consumer reporting agencies,” or “credit bureaus,” collect consumers’ credit information and compile it into credit reports, which are available upon request to certain individuals or businesses for a fee. The FCRA allows individuals to obtain a free copy of their own credit report once a year from each of the “big three” credit bureaus:  Equifax, Experian, and TransUnion.

The FCRA regulates how and when credit bureaus may provide credit reports to requesters. Under § 604(a) of the FCRA, codified at 15 U.S.C. § 1681b, state child support agencies are permitted to request a parent’s credit report to determine whether the parent is capable of making child support payments, and if so, determining the amount they can pay. This section of the FCRA currently requires the state agency to give notice of the request to the parent “by certified or registered mail to [their] last known address” at least 10 days in advance of obtaining the credit report.

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New York law regarding paternity is closely related to laws regarding the marital relationship. This includes a strong presumption that the husband of a woman who gives birth is the father of the child. State law allows people to rebut this presumption in many cases, such as if someone else claims to be a child’s biological father. A court may determine, however, that maintaining the status quo is in a child’s best interest, even if the person the child calls “Dad” is not, biologically speaking, the child’s dad. In this sense, the paternal relationship is more important than paternal biology. Courts at both the state and federal levels have addressed this issue recently.

Children Born During Marriage

The presumption of paternity in marital relationships can cut both ways, so to speak. Paternity brings with it a wide range of legal obligations to support a child, which some people welcome, while others do not. An individual may claim paternity of a child born to a mother who is married to someone else, or a husband may try to disclaim paternity if he suspects that he is not the biological father. Either way, state law sets a very high bar for anyone challenging the presumption of paternity, requiring clear and convincing evidence. The ultimate determining factor, regardless of the evidence presented, is the best interest of the child.

Children Born out of Wedlock

When a child is born to an unmarried mother, no presumption of paternity applies. State law prohibits the inclusion of a father’s name on a birth certificate unless that person has signed an acknowledgement of paternity, or a court has entered an order finding that the person is the child’s father. If a child’s mother and the acknowledged or adjudged father get married after the child is born, under New York law the marriage “legitimizes” the child.

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A lawsuit filed in a Manhattan federal court deals with what appears to be a highly contentious dispute between the parents of two children. The plaintiff in Kelleran v. Casey, who is the father of the children, alleges that the defendant accessed his laptop computer without his permission and “hacked” several online accounts, allegedly to obtain information to use against him in a child support modification proceeding. The case demonstrates how acrimonious family law cases can get, and it also raises important questions about how to modify child support orders and how to obtain evidence of another parent’s income.

The parties had two children before separating in 2005. A Brooklyn family court ordered the plaintiff to pay $2,000 per month to the defendant in child support in October 2005. The plaintiff does not state whether this order was the result of a settlement agreement or not, nor does he state whether or not he was in arrears on child support prior to the current dispute.

In May 2012, the plaintiff claims, he allowed his daughter to borrow his laptop computer for the weekend. During that time, the defendant allegedly accessed a file on the computer that contained a listing for a Manhattan apartment owned by the plaintiff’s brother. The plaintiff claims that the defendant used this information as the basis for a petition to modify child support filed in March 2013. He further claims that the petition contained false information about his finances.

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A New York court cannot grant a divorce until the parties have addressed, among other issues, custody of any children and the child support obligation of the non-custodial parent. The parties may agree to terms and ask the court to approve them as part of a final judgment of divorce, or they may submit their dispute to the court to resolve for them after a trial. If the court must decide child support, New York law establishes guidelines based on the parties’ combined income and other factors.

What Counts as Income?

Section 240 of the New York Domestic Relations Law sets forth most of the child support standards and guidelines. When calculating the child support obligation, the court must consider both parents’ income, known as “combined parental income” (CPI).

The law’s definition of “income” includes more than just salary, wages, tips, and commissions. It also includes benefits received from worker’s compensation, public and private disability insurance, unemployment insurance, Social Security, Veterans’ Affairs, pensions, retirement plans, annuities, and imputed income based on fringe benefits.

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People who serve in the United States Armed Forces are entitled to a variety of benefits through the U.S. Department of Veterans Affairs (VA), including pensions and other retirement income, health care, life insurance, and dependent and survivor benefits. In a divorce in the state of New York, certain VA benefits are treated as assets subject to equitable distribution. VA benefits may also constitute income to be considered in calculating child and spousal support. The divorce process can present concerns for both veterans and spouses of veterans, both of whom may worry about losing assets or income streams on which they depend.

The New York Times recently published a story by the former spouse of a National Guard member who deployed to Iraq and returned home with physical and psychological injuries. She describes helping him obtain assistance through the VA, and the ongoing treatments and tests that eventually resulted in diagnoses of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Unfortunately, the two were not able to make the marriage work, and they divorced. The author states that she is lucky, since she has a job that provides benefits. Many military spouses who end up divorcing find themselves cut off from support from the VA.

Several types of VA benefits are particularly important in a divorce proceeding:

– Pensions:  Some veterans are eligible for tax-free retirement benefits.
– Life insurance:  The VA provides numerous life insurance options for veterans and their dependents.
– Health care:  The VA operates a large network of healthcare facilities, including hospitals and clinics.

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