Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

Continue Reading Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

Count the overnights. “Legal” custody or decision-making power does not matter. Child Support is only payable to the parent with the children the majority of the overnights. If overnights are equally shared, the parent with the higher income is deemed to be the noncustodial parent for C.S.S.A. purposes.

Such is the rule of law made clear in two recent Appellate Division cases. In its June 28, 2013 decision in Leonard v. Leonard, the Fourth Department held that despite  the father having sole legal custody, as parenting time was equally shared and the father had the higher income, the father would be deemed the noncustodial parent and obligated to pay child support.

In Rubin v. Della Salla, an April 18, 2013 decision of the First Department, where each parent had spheres of decision-making, it was held that the father with whom the child spent 56% of the overnights could not, as a matter of law, be ordered to pay child support under the C.S.S.A.

In Leonard, upheld the decision of Monroe County Supreme Court J.H.O. to award the husband sole legal custody. The wife sought joint legal custody, bu the Fourth Department agreed that the parents’ acrimonious relationship and inability to communicate effectively with respect to the needs and activities of the children made joint custody not feasible. Moreover, the J.H.O. did not abuse his discretion in failing to split decision-making “zones of influence.”

The Fourth Department, however, held that it was error for the J.H.O. to award child support to the husband. Child support should have been awarded to the wife. As the residency arrangement was shared, and neither parent had the children for a majority of the time, the party with the higher income was to be deemed to be the noncustodial parent for purposes of child support.

Here, the residency schedule affords the parties equal time with the children. Inasmuch as the husband’s income exceeded that of the wife (at the time of trial, the husband earning $134,924.48 annually, with the J.H.O. imputing income of $25,000 to the wife), the husband was the “noncustodial” parent. As such, he must pay child support to the wife.

The Fourth Department acknowledged that the authority presented by the wife involved awards of joint legal custody, whereas the husband, here, was awarded sole legal custody. That fact, however, should not affect the child support determination.

Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children.

Continue Reading Parenting Time, Not Legal Custody, Determines Entitlement to Child Support

square peg2.jpgThere is a gap in New York’s child support statutes. They do not contemplate a custodial parent paying support to a non-custodial parent.

The Family Court Act does declare that both parents are chargeable with the support of their children. Moreover, the Family Court Act does not make a distinction between the “custodial” and “non–custodial” parents when declaring that parents of a child under the age of 21 years ,“if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.” F.C.A. §413(1)(a). (The Domestic Relations Law contains no such preamble to its section providing for an award of child support within matrimonial actions.)D.R.L. §240(1-b).

However, those same Family Court Act and the Domestic Relations Law provisions provide that awards of child support “shall″ be made “pursuant to the provisions” of those subdivisions. The subdivisions, then, set out the presumptive formula to determine awards of child support. The presumptive formula is to be varied only in the event the court finds, based upon factors specified, that the “non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate.” In all events, the statutes only contemplate support being paid by the non-custodial parent to the custodial parent.

Although the statutes carefully define many of the terms used, “non-custodial parent” is never defined. Thus, in ever-increasing scenarios, the courts have had to decide who is the “non-custodial.”

In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals recognized that in most instances, the court can determine the custodial parent by identifying which parent has physical custody of the child for a majority of the time. In cases where the child’s time was divided approximately equally between the parents, the more-monied parent has been deemed the non-custodial parent because such a rule maximizes the benefits realized by the child at both homes. Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998).

Nonetheless, the best interests of a child may require an award of child support from the custodial parent to the non-custodial parent.

Take, for example, New York County Supreme Court Justice Ellen Gesmer’s February 29, 2012 decision in M.R. v. A. D. In that case, the court denied a father’s motion for summary judgment dismissing a mother’s claim for child support. In a painstaking decisionmade earlier in the case, Justice Gesmer (32 Misc.3d 512, 928 N.Y.S.2d 429) awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer gave the father primary custody during school year, and gave the more permissive and disorganized mother primary custody during summer and other school breaks.

Continue Reading Awarding Child Support to the "Non-Custodial" Parent