Father and daughter.jpgParents sometimes enter child support agreements which track the presumptive formula set out in New York’s Child Support Standards Act (Family Court Act §413; Domestic Relations Law §240[1-b]). However, parents in their agreements often deviate from the presumptive formula to reflect various considerations. That deviation for a married couple may reflect the delicate balancing of property rights, spousal maintenance and child support.

For example, parents may reduce the presumptive child support amount where the child(ren) spend more time with the “non-custodial” parent than what might be considered the “normal” alternate weekends and a mid-week dinner.

May the non-custodial parent’s failure to fully exercise visitation rights under an agreement serve as a basis to increase child support?

In its July 11, 2012 opinion in McCormick v. McCormick, the Appellate Division Second Department said, “Yes.” It found that the substantial reduction in a father’s visitation with his child warranted an upward modification of the father’s child support obligation. That reduction in visitation provided the substantial change in circumstances needed to justify a support modification.

[T]he mother established that an increase in the father’s child support obligation was warranted by a change in circumstances … Specifically, the substantial reduction in the father’s visitation with the child, which significantly reduced the amount of money the father was required to spend on the child, “constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.”

The Second Department was quoting from the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 NY2d 1, 743 NYS2d 773. That case also addressed a father’s failure to live up to his scheduled substantial parenting time.

In Gravlin, however, the Court took pains to note that under the parents’ separation agreement, the parents had anticipated that their daughter would spend approximately 35% of her time with her father. Indeed, those expectations were expressly among the reasons the parents were agreeing to child support provisions which deviated from the presumptive C.S.S.A. formula. The visitation plan was part of the basis for the parties’ agreement to deviate from C.S.S.A.

Three years after the agreement in Gravlin was entered, their daughter refused to accompany her father on a summer trip he had planned, and instead returned to her mother’s home. After that, all significant visitation between father and daughter came to an end. The mother commenced a Family Court proceeding seeking enforcement and modification of the father’s child support obligations.

The Court of Appeals in Gravlin found that the unanticipated change in the father’s relationship with his daughter created a need for modification of the support terms of the separation agreement (the Family Court had found that the daughter did not abandon her father). Those support terms had become unworkable. Under the parents’ agreement, each parent had assumed an obligation to support the child when the child was with him or her. Yet, after visitation broke down through no apparent fault of either party, only the mother was providing such support. Accordingly, the support obligations of the father under their separation agreement were properly modified by the Family Court, below.

Moreover, the Court of Appeals determined that in that case, the imposition of C.S.S.A. standards was the appropriate remedy after the contracted-for support provisions failed. The parents had intentionally “opted out” of the C.S.S.A. presumptive formula in order to fashion their own support arrangement. That arrangement was entwined with their respective custodial and visitation rights; the support obligations were directly linked to continued visitation between father and daughter. When the visitation arrangement broke down, those support provisions failed.

In McCormick, the Second Department did not detail the parties’ visitation arrangements, nor the extent, if any, to which the parties had deviated from the presumptive C.S.S.A. formula in their support stipulation entered just one year before the current proceedings began. Without such details, this decision may open the floodgates for modification applications based upon the failure to fully exercise visitation rights.

It is common to provide in settlement stipulations that visitation is entirely optional; and that a parent’s failure to exercise such right on any particular occasion is not to be deemed a waiver of full visitation rights thereafter.

It may also be prudent to provide in settlement agreements that the failure to exercise all or any portion of visitation rights shall (or shall not) affect child support obligations, and may (or may not) serve as a basis to modify any child support or other obligations under the agreement.