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.

Continue Reading Sporadic Visitation by Father is Basis to Increase Child Support