It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.
Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.
Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.
Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.
Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.
The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.
In Samuelson, emancipation, by definition, included a “change of custody,” the relocation of a child from one parent to the other. As the agreement expressly contemplated and declared what would be the father’s child support obligation if a child left the mother to live with the father, the father could not look independently for support when the contemplated emancipation event actually occurred.
However, the precise language in Samuelson, in my experience, is not the customary provision. Rather, emancipation is often deemed to include simply a child leaving the residence of the custodial parent. The agreement does not expressly require the child to move in with the non-custodial parent. There will be a child support reduction whether the child moves into a friend’s home. or the home of a grandparent, or lives on his or her own, or moves in with the other parent.
Last year, in Schneider v. Schneider, 98 A.D.3d 732, 951 N.Y.S.2d 30 (2nd Dept. 2012), Supreme Court, Westchester County Acting Justice Robert A. Neary denied that branch of a father’s motion which was, in effect, to modify the child support provisions in the parties’ stipulation of settlement, so as to require the mother to pay him child support for the parties’ younger son when the son moved in with him.
In a 2005 divorce stipulation of settlement, the parties, who had two sons together, agreed that the mother would have primary residential custody of the children. The parties also agreed that the father would pay the defendant the sum of $2,000 per month in child support until the emancipation of a child. At that point, the father’s monthly child support obligation would be reduced by 32%. The precise language of the change of residence clause was not set forth.
Approximately 4½ years after the divorce, the parties’ younger son moved out of the mother’s residence and moved in with the father. Subsequently, the father moved to have the mother pay child support in accordance with the Child Support Standards Act.
The Second Department held that Justice Neary correctly determined that the father failed to demonstrate that the stipulation should be modified to adjust the parties’ respective child support obligations. The plaintiff did not claim that the younger son’s change of residence was “an unanticipated and unreasonable change in circumstances,” and failed to show that the younger son’s needs were not being met.
In 2011 in Wakefield v. Wakefield, 84 A.D.3d 1256, 924 N.Y.S.2d 444, the Second Department held that while the parent to whose home the child moved may not be able to obtain support, the child can.
In Wakefield, the parties had executed a stipulation of settlement in 2006 which survived the judgment of divorce. The parties agreed to joint legal custody of their two children, with the mother having physical custody of the children. Child support was to be paid until the happening of an emancipating event, which included either of the children’s “permanent residence away from the residence of the wife.”
In 2008, one child moved from his mother’s home to the father’s home. In March, 2009 the father filed a petition seeking to modify the support provisions of the stipulation of settlement so as to receive child support from the mother. After a hearing, the Support Magistrate granted the petition, upon a finding that the subject child’s residence with the father constituted a change in circumstances warranting an award of child support to the father.
However, a Suffolk County Family Court Judge granted the mother’s objections as the parties’ agreement deemed the subject child to be emancipated. The Family Court, therefore, dismissed the father’s petition.
Then, in September, 2009, the child filed his own petition seeking support from his mother. At a hearing on the petition, both the subject child and the father testified that the subject child was 18 years old, that he lived with the father, and that he attended Suffolk Community College full time.
Support Magistrate Aletha Fields granted the subject child’s support petition, and directed the mother to pay child support determined under the C.S.S.A. This order withstood the mother’s objections upon review by Family Court Judge Richard Hoffman, who reject the mother’s contention that the subject child was emancipated and, thus, not entitled to child support.
Judge Hoffman concluded that the prior decision, wherein it deemed the subject child to be emancipated pursuant to the parties’ stipulation, did not affect the subject child’s right to receive adequate support.
The Second Department agreed. Family Court’s determination that the subject child was emancipated pursuant to the terms of the parties’ stipulation did not preclude the subject child from filing his own support petition.
The child, on the other hand, is not bound by the terms of the agreement . . . and an action may be commenced against [a parent] for child support despite the existence of the agreement.” Here, since the subject child moved from his mother’s residence to the father’s residence with his parents’ consent, the subject child was entitled to adequate support from his mother.
Mildred J. Michalczyk, of East Farmingdale, represented the mother.
It is hard enough for parents to reach an agreement on child support as of the then circumstances. Asking the custodial parent to pay child support to the other parent if the child years later decides to move, may make agreement impossible. However, silence on the issue may greatly prejudice the non-custodial parent, resulting in pressure being placed on the child to sue his former custodian. That does not seem to be a result to be promoted.
Coercion of the child, getting him or her in the middle of a child support dispute between the parents, is precisely the evil noted by New York County Supreme Court Justice Lori S. Sattler in the in the July 12, 2013 decision Trepel v. Trepel, the subject of the July 24, 2013 blog post.