As discussed in prior posts, parental alienation is an insidious tactic used by one parent against another to attempt to turn children against another parent. Custodial parents who do this should be aware of the enormous psychological and emotion trauma they inflict on their children. But aside from that, the Second Department has recently re-affirmed its fealty to the idea that a custodial parent who goes to such efforts to alienate a child from another parent runs the further risk of losing his or her right to child support. The full decision can be seen here.
In making this decision, the non-custodial parent who finds themselves alienated from the child now has a powerful weapon in their arsenal. They should not hesitate to use it.
Showing posts with label child support. Show all posts
Showing posts with label child support. Show all posts
Monday, April 7, 2014
Monday, October 18, 2010
Who's The Daddy?: The Doctrine of Equitable Estoppel
Whether or not a man is determined to be the legal father of a child has enormous implications which range from the emotional to the financial. A recent decision by the New York Court of Appeals (Matter of Juanita A. v. Kenneth Mark N.) highlights some of the problems with this still evolving area of the law. For a full discussion of the facts of the case click here. As the attorney who was assigned to represent the mother the last time the Court of Appeals took up this case, I have had considerable experience confronting this highly complicated issue. The decision in its entirety can be seen here.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
Friday, October 1, 2010
Child Support
Upon any separation between two parents, often the first question a parent left with the child will ask is how they are going to pay the bills on their own. Similarly, a parent who has left the home will often wonder how much they will have to pay for the support of their child(ren). Many of these questions can be answered by reviewing the controlling law in the State of New York which is the Child Support Standards Act (C.S.S.A.). (The Act in its entirety can be viewed at https://newyorkchildsupport.com/pdfs/cssa_2010.pdf).
The C.S.S.A. is merely a starting point since the act only concerns itself with basic child support amounts. There are other considerations and collateral expenses (i.e., health insurance, education, child care, life insurance, unreimbursed medical expenses, etc.) which are not contemplated by the act and which can be added to an order of support. The burden of proving these expense rests with the parent seeking support. The percentage that each parent will be responsible for these added expenses will depend on their relative incomes. For example, if one parent earns $100,000 and the other $50,000, the combined income is $150,000. The parent earning $100,000 makes up 2/3 of the total income and will generally be required to pay 2/3 of the total amount of those other expenses.
Each case is different, however, and support magistrates (the people who hear these cases in Family Court) have some discretion to deviate from these formulas (and the C.S.S.A. guidelines as well) provided there is good cause to do so, such as the existence of prior orders of support.
Generally, in the case of a W2 employee, the amount of support is a relatively straight forward calculation depending on the number of children. These cases get considerably more complicated (and difficult to prove) where the parent who is responsible for paying support actively hides assets and/or income, is working "off the books" or denies employment. In these cases, the litigation is vastly more arduous and it is often worthwhile to retain the services of an attorney, and a private investigator. The latter is an invaluable asset (though sometimes cost prohibitive) which can help unearth the true nature of a parent's income and/or assets. Whether a private investigator is needed is something you will need to discuss with your attorney.
As is the case with any litigation, preparation before going to court is vital. There is no reason a parent seeking support for a child should be short changed. It is, after all, the child's right to support that you are seeking to enforce.
The C.S.S.A. is merely a starting point since the act only concerns itself with basic child support amounts. There are other considerations and collateral expenses (i.e., health insurance, education, child care, life insurance, unreimbursed medical expenses, etc.) which are not contemplated by the act and which can be added to an order of support. The burden of proving these expense rests with the parent seeking support. The percentage that each parent will be responsible for these added expenses will depend on their relative incomes. For example, if one parent earns $100,000 and the other $50,000, the combined income is $150,000. The parent earning $100,000 makes up 2/3 of the total income and will generally be required to pay 2/3 of the total amount of those other expenses.
Each case is different, however, and support magistrates (the people who hear these cases in Family Court) have some discretion to deviate from these formulas (and the C.S.S.A. guidelines as well) provided there is good cause to do so, such as the existence of prior orders of support.
Generally, in the case of a W2 employee, the amount of support is a relatively straight forward calculation depending on the number of children. These cases get considerably more complicated (and difficult to prove) where the parent who is responsible for paying support actively hides assets and/or income, is working "off the books" or denies employment. In these cases, the litigation is vastly more arduous and it is often worthwhile to retain the services of an attorney, and a private investigator. The latter is an invaluable asset (though sometimes cost prohibitive) which can help unearth the true nature of a parent's income and/or assets. Whether a private investigator is needed is something you will need to discuss with your attorney.
As is the case with any litigation, preparation before going to court is vital. There is no reason a parent seeking support for a child should be short changed. It is, after all, the child's right to support that you are seeking to enforce.
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