stamp "Evidence"It is understandable that parents who “cannot afford” a lawyer will attempt to represent themselves in Family Court child support proceedings. Moreover, the Family Court is remarkably able to apply the law and make its determinations of issues presented by unrepresented parties. However, the fact that a party does not have a lawyer does not excuse following the rules nor presenting the proof needed by the Court to make those determinations.

Take the recent child support decision in Matter of Carol A.S. v. Mark H. There, the mother commenced a proceeding against a father in Kings County Family Court in order to establish his paternity of a college-attending daughter (under 21) and to provide support for the child. (A DNA test established was administered that established the father’s paternity.)

The decision of Judge Xavier E. Vargas went to pains to discuss the history of the case, noting the various adjournments that were granted in order to allow both parents the opportunity to gather the documentation the court needed for each party to establish his or her positions. The mother wanted the father to reimburse her for the college expenses paid for the daughter. The father claimed he regularly had been giving the daughter $600 per month by depositing that sum directly to the daughter’s account. He wanted credit for making those payments.

After more than two years of litigation, Judge Vargas upheld those parts of the decision of Support Magistrate Andrea Hecht-Zaki that denied the father a credit for those $600-per-month claimed deposits and denied the mother reimbursement for college expenses.

Judge Vargas noted that generally:

voluntary payments made by a parent for the benefit of children and not pursuant to court order may not be credited against amounts owing under the order. However, where a custodial parent concedes to the credit, courts may offset retroactive support payments by amounts paid by the non-custodial parent, not pursuant to court order, after the filing date of the Petition.

Here, the Father repeatedly claimed that he paid $600 per month directly to the child purportedly for her college living expenses by directly depositing that amount to a Bank of America account. Indeed, the father presented several bank Customer Receipts (barely legible) for amounts deposited into a Bank of America Account from November 2014 to May 2015.

However, those receipts contained no notation or indication that those deposits were made by the father, nor into the child’s account. There were no names on the receipts, nor any indication of who own each account. When queried regarding the deposits, the mother disputed the amounts given to the child. Furthermore, she never conceded to the father receiving credit for the payments, and the record reflected that the father did not give any of the money directly to the mother. Accordingly, Judge Vargas found that the Magistrate did not err when she declined to credit the retroactive support for alleged “voluntary payments” made subsequent to the Petition filing date “not pursuant to court order.”

The mother’s application for college expenses was denied as she did not submit any documentary proof regarding the total cost of college tuition, nor her out of pocket cost.

The court provides a great deal of help to self-represented parties. However, it is not its job to provide legal advice, nor to overlook defects in proof. Documentation must show the entire chain: where did the money come from; where did it go; how did it get there; what was it for, etc. Moreover, parties don’t get to make up there own rules. By deciding to give money directly to his daughter, this father will now have to pay thousands of additional dollars directly to the mother. Documented payments directly to the mother would have avoided that. The father’s doing the right thing, as he saw it, in this case was not enough. Parties have to play by the Court’s rules. (And it’s the job of lawyers to guide you through those rules and organize and present your proof.)

  • Johnny

    It is very true that representing yourself in court has risks, especially when the other side has counsel, because unfortunately some judges appear to favor (and simply take more seriously) the side that has counsel. I’ve witnessed this several times first hand. That said, it is clear from the ruling in this particular case that the father would still have lost, even if he had counsel, and even if he had produced better evidence that he gave his daughter $600 a month, because those payments were “voluntary”. He had a losing case before he even got into court.