M.R. v. A.D.

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“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

Sad child torn picture.jpgIn an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.

Continue Reading Are Parenting Coordinators Too Little, Too Late in Custody and Visitation Disputes?