Child Support Oct 21 Updates: Make Your Ex Pay for College
- Income Based on Most Recent Tax Return: Kiani v. Kiani, (Second Dept. 2021)(2021 WL 4185717)(Sep 15, 2021): CSSA requires court to establish basic child support based on the most recently filed tax return.
- Foreseeable Medical Issues are not True Unanticipated Change in Circumstances: Ryan v. Ryan, (Fourth Dept. 2021)(2021 WL 3782796)(Aug 26, 2021):A parent seeking to modify a child support order arising out of a stipulation must demonstrate a substantial, unanticipated and unreasonable change in circumstances warranting a downward modification, not merely a health issue, and submit competent proof change in circumstance was not of his/her own making and parent thereafter made a good-faith effort to obtain employment commensurate with his/her qualifications and experience. Here, though husband’s change, was not of his own making, he failed to demonstrate a good-faith or diligent effort to obtain appropriate employment. Husband hoped to return to his medical practice after his surgery and though he obtained employment as an administrative consultant at a hospital, he was fired and thereafter made only one inquiry about potentially obtaining a teaching position. Finally, even assuming husband demonstrated a good-faith effort a downward is unwarranted because in addition to his non-taxable disability income he has substantial assets.
- Requirements for Agreement to Opt-Out of Child Support: Haik v. Haik, (Second Dept. 2021)(2021 WL 3378322)(Aug 04, 2021):Court wrongly denied wife’s motion to vacate certain portions of oral stipulation where husband paid no child support and each party paid half of child’s unreimbursed health expenses. Parties can “opt out” of CSSA if their decision is made knowingly. CSSA requires stipulations include provisions: (1) stating parties were advised of CSSA; (2) citing basics of CSSA would presumptively result in correct amount; (3) amount of basic support pursuant to CSSA and (4) with parties’ reasons for deviating. Here, stipulation did not include any of the foregoing. Accordingly, Court should have granted those branches of wife’s motion to vacate child support and unreimbursed health care expenses provisions, which is directly connected with the basic child support calculation.
- Limits on Adjournment to Seek New Counsel: Scott v. Adrat,196 A.D.3d 585, (Second Dept.)(2021 WL 2944297)(Jul 14): Family Court was right to deny request for an adjournment to obtain new counsel, as request came on 3rd day of hearing and matter had been pending for 18 months.
- Non-Biological Partner Has Custody Right in Same Sex Marriage: Scott v. Adrat, Family Court properly found appellant was parent of twin children conceived through artificial insemination in same sex relationship and directed appellant to pay $1,727.00 of monthly child support. Where a partner shows by clear and convincing evidence parties agreed to conceive and raise child together other partner has standing to seek visitation and custody. Evidence at hearing established parties planned jointly for conception, process of conceiving, jointly for their birth, and to raise them together. It was not error for court to consider post-conception behavior in determining existence of a preconception agreement.
- Downward Modification of Child Support is not Presumed. When Payor Has Made Other Payments It Can Offset Child Support: Livingston Co. DSS o/b/o Davis v. Hyde, -(Fourth Dept.)(2021 WL 2885671)(Jul 09, 2021): Family Court erred in denying objections by DSS to Support Magistrate’s order which found father’s support obligation per CSSA was $74.00, but determined amount was unjust and set support at $50.00 weekly. Here, Magistrate purported to reduce father’s duty as he made additional expenditures to maintain his house to permit child to stay there during their visits. Such a reduction for extended visitation is permitted but applies only where child is not on public assistance. Also, determination to grant a downward deviation from presumptive support duty on ground that noncustodial parent incurred expenses while child was in his or her care was merely another way of improperly applying the proportional offset method. Proportional offset method has been explicitly rejected by Court of Appeals, and remaining grounds which Support Magistrate relied upon in granting variance have no support in the record.
- When a Party Fails to Contest Educational Decision on Time, Their Duty to Pay Expenses for Such Education is still the Same: Graziano v. Andzel–Graziano, 196 A.D.3d 879, (Third Dept. 2021)(Jul 08, 2021):Court properly directed husband to pay for costs associated with child’s college based on parties 2017 agreement. Stipulation is subject to principles of contract construction and interpretation. Here, stipulation clearly provided husband would pay for college, provided choice of college was agreeable to both parties with caveat consent was “not to be unreasonably withheld.” Though husband contends he withheld consent because he was not adequately consulted during selection, such contention is belied by the record as husband attended 2 meetings between wife, child and college counselor regarding selection, accessed child’s Naviance account, engaged in numerous exchanges with wife and child regarding college selection and was aware as early as March 2019 child had been accepted at his first-choice college.