Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation.
Such was the holding of the Fourth Department in its September 27, 2013 decision in Gallagher v. Gallagher.
That parties’ original child support obligation was fixed by their separation agreement. That separation agreement had been incorporated, but did not merge into the parties’ Judgment of Divorce. The agreement recited that the father’s obligation varied from the Child Support Standards Act formula due to several factors including the fact that the children were to spend a significant portion of time with the father pursuant to the visitation schedule set forth in the separation agreement. [We are not provided with the amount of the child support obligation, the incomes of the parties, nor the agreement’s visitation schedule.]
When the father’s relationship with the children broke down, the mother petitioned the Steuben County Family Court for an upward modification of the father’s child support obligation. She alleged that there was now only sporadic visitation with the children, as a result of which the mother claimed a concomitant increase in her child-rearing expenses.
The evidence presented before Family Court Judge Joseph W. Latham established that such a breakdown occurred. However, Judge Latham ruled that the mother failed to establish a sufficient change in circumstances to warrant modification of the father’s child support obligation.
The Fourth Department disagreed. Quoting the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 N.Y.2d 1, 6, 743 N.Y.S.2d 773 (2002), the Fourth Department stated:
The complete breakdown in the visitation arrangement, which effectively extinguished [the father’s] support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.
The Fourth Department therefore reversed the order, reinstated the mother’s petition, and remitted the matter to the Family Court for a determination of the appropriate amount of support to be paid by the father, after a further hearing if necessary.
Last year, in McCormick v McCormick, 97 A.D.3d 682, 683, 947 N.Y.S.2d 609 (2nd Dept. 2012) (the subject of the July 16, 2012 blog post), the Second Department similarly held that the substantial reduction in a father’s visitation warranted an upward modification of the father’s child support obligation. That reduction in visitation provided the substantial change in circumstances needed to justify the support modification.
As was noted in that blog post, 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.
In Gravlin, however, the Court of Appeals had taken 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. Three years after the agreement was entered, the parties’ 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 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. Those support terms had become unworkable.
Under the Gravlins’ agreement, each parent had assumed an obligation to support the child when the child was with him or her. Under the parties’ agreement, no child support was paid by either party to the other. That arrangement was entwined with the parties’ 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.
Neither in McCormick, nor Gallagher are we provided with the visitation, income and support details.
Moreover, it may be that a modification based on a change in visitation is a one-way street. It has been held that a child support obligation should not be proportionately offset by the amount of time the children spend with the non-custodial parent, and that the expenses the non-custodial parent incurs to exercise visitation do not constitute extraordinary expenses which warrant a downward modification of child support. Fisher v. Robinson, 294 A.D.2d 362, 741 N.Y.S.2d 719 (2nd Dept. 2002).
Additionally, the general rule in cases where the time of the children with each parent is equally split is to treat the more-monied spouse as the non-custodial parent for C.S.S.A. purposes. Leonard v. Leonard, 109 A.D.3d 126, 968 N.Y.S.2d 762 (4th Dept. 2013) (see the July 8, 2013 blog post).
Moreover, it remains extraordinarily difficult for the non-custodial parent to obtain a reduction in child support because of a claimed abandonment by or emancipation of the child (see, e.g., Grucci v. Villanti, 108 A.D.3d 626, 969 N.Y.S.2d 493 (2nd Dept. 2013).
As noted in the July 16, 2012 blog post, 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.
Thus, again, 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.