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Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).Continue Reading Making It Tougher To Deviate From Presumptive Formulas on Temporary Support Awards

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.Continue Reading Father's Failure To Visit Child Is Grounds To Increase 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