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Three-Step Analysis for Child Support Under Child Support Standards Act

The Second Department explained the three step analysis for the determination of child support obligations pursuant to the Child Support Standards Act (the parents in this case had a combined annual income of more than $700.000.00):

Under the first step of the analysis, a court must determine the parties’ combined parental income … . …Under the second step of the analysis, pursuant to Domestic Relations Law § 240(1-b)(c)(1), we multiply so much of the combined parental income up to $80,000.00—which was the “statutory cap” in effect on the date of the 2008 Judgment …—by the applicable statutory child support percentage, or 29% for the parties’ three children (see Domestic Relations Law § 240 [1-b][c][2]…). We then allocate the resulting amount … between the parties according to their pro rata share of the combined parental income (see Domestic Relations Law § 240 [1-b][c][2]). The third step in the analysis applies where, as here, the combined parental income exceeds the applicable statutory limit of $80,000.00. In this situation, “courts [have] the discretion to apply the [sub]paragraph (f)’ factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000” … . As applicable here, the subparagraph (f) factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed had the marriage or household not been dissolved (see Domestic Relations Law § 240[1-b][f][1][3]). These factors further the objectives of the CSSA, which include “the assurance that both parents would contribute to the support of the children” and that the court consider “the total income available to the parents and the standard of living that should be shared with the child” … .  Beroza v Hendler, 2013 NY Slip Op 05607, 2nd Dept 8-14-13

 

Criteria for Determining Whether Relocation of Custodial Parent is in Best Interests of the Children Explained

The Second Department explained the criteria for determining whether relocation of the custodial parent would be in the best interests of the children as follows:

In determining whether relocation is appropriate, the court must consider a number of factors, including the child’s relationship with each parent, the effect of the move on contact with the noncustodial parent, and each parent’s motives for seeking or opposing the move … . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

…The Family Court found credible the mother’s testimony at trial that, if she were permitted to relocate with the children to Florida, the children’s quality of life would be significantly improved on a day-to-day basis because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have several close family members in the vicinity of her new home to offer her support. Significantly, it was undisputed that the mother was the children’s primary caregiver, and that the father was minimally involved in the children’s lives.  Matter of Davis v Ogden, 2013 NY Slip Op 05626, Second Dept 8-14-13

 

Excessive Corporal Punishment Constituted Neglect and Derivative Neglect

In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote:

Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family Ct Act § 1012[f][i][B]). The Family Court’s finding of neglect as to the child Briana M., based upon the mother’s use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence demonstrated that the mother struck then-eight-year-old Briana with a belt numerous times, causing marks on her back and arms … .

The evidence, which established that the mother inflicted excessive corporal punishment on Briana, was sufficient to support the Family Court’s determination that the children Matthew M. and Alexis M. were derivatively neglected… . Matter of Matthew M (Fatima M), 2013 NY slip Op 05573, 2nd Dept 8-7-13

 

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Family Offense of Disorderly Conduct Established

The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence:

…[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner’s car from exiting the parking lot of the Family Court, engaged in threatening behavior that recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20…… . Matter of Banks v Opoku, 2013 NY slip Op 05568, 2nd Dept 8-7-13

 

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Income of Mother’s Cohabiting Fiance Should Not Have Been Considered in Determining Mother’s Entitlement to Assigned Counsel

In finding mother was deprived of her right to counsel in a guardianship proceeding, the Second Department determined the income of mother’s cohabiting fiance should not have been considered:

…[T]he Family Court erred in considering the income of the mother’s cohabiting fiancé in making a determination as to whether she was needy and, therefore, entitled to appointment of counsel …. Furthermore, nothing in the record supports a finding that the mother waived her right to counsel … . Thus, the mother was deprived of her right to counsel (see Family Ct Act § 262[a][v]…).  Matter of Angel L, 2013 NY Slip Op 05528, 2nd Dept 7-31-13

 

Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father

The Second Department determined the Support Magistrate’s failure to take into account money received by the father from relatives for the children’s college required the case to be remitted to determine father’s and mother’s shares of the college expenses:

In determining a parent’s child support obligation, a court need not rely upon a party’s own account of his or her finances, but may impute income on the basis of the party’s past income or earning capacity …, or on the basis of “money, goods, or services provided by relatives and friends” (Family Ct Act § 413[1][b][5][iv][D]…). “A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent” …, and we accord deference to a support magistrate’s credibility determinations … . However, “a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion” … .

While the record supports the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for money he received from his family for the subject children’s college expenses. The father’s testimony established that the funds he received from his family to pay for the subject children’s college expenses were not loans that he was obligated to repay. Thus, the mother’s objections to so much of the order … as directed her to pay the father the principal sum of $28,210.02 in arrears for college expenses and to pay for 67% of the subject children’s future college expenses should have been granted… .  Matter of Kiernan v Martin, 2013 NY Slip Op 05527, 2nd Dept 7-31-13

 

Family Court Should Have Granted Change-of-Custody Petition

The Second Department determined Family Court erred in not granting father’s petition for a modification of a custody arrangement. Father was awarded temporary custody while the mother dealt with abuse or neglect allegations which were eventually determined to be “unfounded.”  The father then petitioned for sole residential custody:

The evidence presented at the hearing on the father’s petition established that, while living with the father …, the child, who has special needs, had thrived both at home and in school. It would be disruptive to remove the child from the father’s house and his established routine … . Moreover, the father is ensuring that the child maintains a strong and continuing relationship with the mother. The continuation of a liberal visitation schedule will provide the mother with a meaningful opportunity to maintain a close relationship with the child … . We note that the attorney for the child supports the award of sole residential custody of the child to the father… .  Matter of Ellis v Burke, 2013 NY Slip Op 05524, 2nd Dept 7-31-13

 

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Where There Are Sharp Factual Disputes, Forensic Evaluations Are Required for a Guardianship Determination

In a case with sharp factual disputes, the Second Department determined Family Court should not have decided the issue of guardianship without the aid of forensic evaluations:

The Family Court erred in deciding the issue of guardianship without the aid of forensic evaluations of Stephanie, Shanika, and Jada. Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final… . Under the circumstances of this case, the record is inadequate to determine the best interests of the child, particularly as there was no expert assessment of the psychological impact of separating Jada from Shanika. In addition, given Stephanie’s allegations of alcohol abuse by Shanika, and Shanika’s allegations of alienation by Stephanie and Stephanie’s current partner, forensic evaluations of Stephanie, Shanika, and Jada are proper to aid in the resolution of these factual issues.  Matter of Shanika M v Stephanie G, 2013 NY Slip Op 05460, 2nd Dept 7-24-13

 

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Mother Did Not Stipulate to Order of Reference; Therefore Referee Only Had Power to Hear and Report

The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104.  Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to the reference, the referee only had the power to hear and report.

…[T]he mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge… .

Accordingly, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective petition and cross petition regarding custody and visitation…. Thus, the Court Attorney Referee’s decision … must be deemed a report (see CPLR 4320[b]), and the matter must be remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.  Matter of McClarin v Valera, 2013 NY Slip Op 05461, 2nd Dept 7-24-13

 

Father’s Petition to Relocate to North Carolina Properly Denied

The Second Department determined Family Court had properly denied father’s petition for permission to relocate to North Carolina.  A prior consent order had awarded joint legal custody with primary physical custody to the father.  The father, who is in the military, was transferred from West Point to Fort Bragg in North Carolina.  The court explained the applicable (relocation) considerations as follows:

“Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child’s best interests”…. When evaluating whether a proposed move is in the child’s best interest, “the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children’s future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements” … . Although a multitude of factors may be considered, “ the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern’”…. Matter of Hirtz v Hirtz, 2013 NY Slip Op 05457, 2nd Dept 7-24-13

 

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