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DESPITE THE PROVISION IN THE SEPARATION AGREEMENT REQUIRING THAT ANY MODIFICATION OF SUPPORT APPLY NEW JERSEY LAW, BECAUSE ALL PARTIES RESIDED IN NEW YORK WHEN THE MODIFICATION APPLICATION WAS MADE, NEW YORK LAW CONTROLS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that. despite the choice of law provision in the separation agreement, New York law applied to any modification of child support. The family lived in New Jersey when the separation agreement, providing that New Jersey law would control support modification, was executed. But all parties were living in New York when the application for modification was made:

… [W]e conclude that the court had jurisdiction pursuant to the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B) to resolve the issues raised in the mother’s petition and objections … . The UIFSA unequivocally provides that where, as here, the parents reside in this state “and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order” … . Furthermore, we agree with the mother that New York law must be applied to determine the father’s child support obligation here inasmuch as the statute further provides that “[a] tribunal of this state exercising jurisdiction under this section shall apply . . . the procedural and substantive law of this state to the proceeding for enforcement or modification” (Family Ct Act § 580-613 [b]). …

Although courts will generally enforce a choice of law clause ” so long as the chosen law bears a reasonable relationship to the parties or the transaction’ ” … , courts will not enforce such clauses where the chosen law violates ” some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal’ ” … . It is long settled that New York has a “strong public policy that obligates a parent to support his or her child” . Under New York law, child support obligations are required to be calculated pursuant to the Child Support Standards Act ([CSSA] Family Ct Act § 413), and ” [t]he duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement’ ” … . In addition, whereas … Jersey law provides that child support obligations generally end when a child reaches the age of 19 … , in New York, “[a] parent’s duty to support his or her child until the child reaches the age of 21 years is a matter of fundamental public policy” … . Under the circumstances, and given that the parties do not have a valid agreement to opt out of the CSSA (see generally Domestic Relations Law § 240 [1-b] [h]), we conclude that enforcement of the parties’ choice of law provision would violate those strong New York public policies. Matter of Brooks v Brooks, 2019 NY Slip Op 03164, Fourth Dept 4-26-19

 

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