May a parent be directed to maintain life insurance in a Family Court support proceeding? Do an aunt and uncle awarded primary residential and, with the father, joint legal custody of his children, share responsibility for the children’s health and education expenses? Such were the questions addressed by the Appellate Division, Second Department, in its September 12, 2018 decision in Lozaldo v. Cristando.
Following the death of the children’s mother, the maternal aunt and uncle were awarded residential custody of the children and shared joint legal custody with the father. The aunt and uncle commenced this proceeding for child support from the father. After a hearing, Nassau County Family Court Support Magistrate Patricia Bannon entered a support order which, inter alia, required the father to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The father objected to these provisions of the order of support. Family Court Judge Conrad D. Singer denied his objections. The father appealed.
The Second Department agreed with requiring the father to pay 100% of the children’s medical and educational expenses. There was no basis to find the maternal aunt and uncle liable for a portion of such expenses.
Family Court Act § 413(1)(a) provides that “the parents of a child under the age of  years are chargeable with the support of such child and, 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.” The statute does not require a third party who is not a parent to financially support a child.
The Second Department noted that courts have employed the doctrine of equitable estoppel, sometimes in conjunction with that of implied contract, to hold parties responsible for paying child support in the absence of a biological or adoptive connection to the subject child or an established parent-child relationship where, among other things, those parties agreed to adopt the child. However, such circumstances did not exist here. The fact that the petitioners have residential custody and joint legal custody of the children did not relieve the father of his obligation pursuant to Family Court Act §413(1)(a), as the children’s parent, to financially support them. The record showed that the father had the means to provide support for the children, and the Family Court properly found him to be responsible for 100% of their unreimbursed medical and educational expenses.
The Second Department also agreed with the Supreme [sic] Court’s determination requiring the father to maintain a life insurance policy to secure his child support obligations, citing Siskind v. Siskind, 89 A.D.3d 832 and Matter of Moran v. Grillo, 44 A.D.3d 859, 860. However, in view of those obligations, the amount of insurance that the father must maintain should be reduced from the sum of $1,000,000 to the sum of $750,000.
Query: What is the basis in a Family Court support proceeding to direct a parent to provide life insurance?
Both the Siskind and Moran decisions expressly relied on D.R.L. §236(B)(8)(a) for the authority to direct a parent to secure a child support obligation with life insurance. No Family Court Act provision was cited. Siskind was a divorce action, but Moran was not.
However, D.R.L. §236(B)(8)(a) authorizes a direction to maintain life insurance as “Special relief in matrimonial actions.” However, D.R.L. 236(B)(2) defines matrimonial actions as including only:
actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part.
It does not appear that D.R.L. 236(B)(8)(a) should be applicable in a Family Court, Article 4, child support proceeding.