New York Court: Custodial Dad Doesn’t Have to Pay Child Support Despite Disparity in Incomes

man repairing girl bike smallApril 26th, 2013 by Robert Franklin, Esq.

A New York appellate court has ruled that child support is to be paid only by non-custodial parents regardless of any disparity in the incomes of two divorced parents. Read about it here (ThomsonReuters, 4/18/13).

Anthony Della Salla and Mara Rubin have a son who’s nine years old. They also have a custody arrangement in which Della Salla has care of the boy most of the time during the school year and Rubin does the same during the summer months. When their respective parenting times are toted up, Della Salla has his son 56% of the time and Rubin 44%. New York law states plainly that “the court shall order the non-custodial parent to pay,” but the family court judge, Ellen Gesmer, decided that the plain wording of the statute, plus its legislative history, plus its previous interpretation by appellate courts in the state were all just airy nothings. She ignored them all and awarded Rubin $5,000 per month in child support to be paid by Della Salla, the custodial parent.

That’s likely because Della Salla is a rich man, being worth a reported $20 million, while Rubin apparently is penniless. She has no income at all save what she receives from Della Salla, which is now nothing, and the $1,000 per month she receives in child support from the father of her daughter. Numerous articles have been written about this case and none of them has said that Rubin is incapable of getting or holding a job. In the absence of such information, it’s impossible not to conclude that Rubin is a deadbeat. She depends on child support for her living instead of finding a job and supporting herself. Her modus operandi didn’t work with Della Salla because, in addition to not working, she didn’t do much child care either.

Needless to say, the case has aroused much indignation. The idea that a wealthy man shouldn’t have to pay money to his former paramour – just because – strikes many people as outrageous. Of course their cover story is that it’s the children who suffer, but I wonder. If they were truly concerned about the children, why don’t they encourage Rubin to get a job. After all, that would be the responsible thing to do and it would benefit her kids too. But no, according to them, regardless of minor considerations like the law, Della Salla should pay Rubin… something… for some reason. As far as they can see, Rubin has no responsibility in the matter.

In dissent, Justice Rolando Acosta said “the majority’s rigid application of the statute sacrifices the child’s well-being at the altar of an arithmetic formula.”…

A lawyer for Rubin, Jason Advocate, said he agreed with Acosta that “the effect on the child will be catastrophic. Unfortunately, New York law doesn’t allow courts to consider that.”

About this, a few things must be said. First, what will surely happen is that Ruben will discover that bearing children is not the gravy train she originally thought. I suspect that’ll spur her to do one of two things – give greater childcare time to Della Salla, or move for primary custody. I’m guessing the latter. After all, it’s the shortest route between her and the pot of money Justice Gesmer originally ordered. Yes, he’s the primary parent and she has to show a change of circumstances in order to modify the existing order, but what could be more of a change than the loss of $60k a year? So my money is on Ruben’s filing a motion to change custody very soon.

But the case does raise some real issues. The most obvious is the attempted use of child support orders to equalize parental incomes. The simple fact is that unmarried custodial mothers in this country don’t earn much money. The median earnings for a single mother is $23,000 according to the Internal Revenue Service. If there’s only one child, that’s barely above the poverty line, and of course, since that’s the median wage, half of those mothers actually earn less. By contrast, the median earnings for unmarried custodial fathers is about $36,000 or over 50% higher. Not long ago I reported on a study conducted by researchers at Rand about the effects of domestic violence on children. It studied single mothers and the authors mentioned in passing that almost none of them had a job. Why not? What is it about single motherhood that encourages mothers not to work or to work very little?

Finally, as night follows day, the New York Legislature will, I predict, be besieged with demands to rewrite the law. Of course those demands will be freighted with appeals to chivalry. Legislators will find themselves drenched in the tears of lobbyists moaning about the hardships of mothers who need fathers’ money regardless of who spends more time and money caring for the child. This will be explained as for the child’s sake only, the theory being that no child should ever suffer any reduction in his/her standard of living just because his/her mother divorced her husband and then refused to work to support the son/daughter.

But in fact, there’s no reason why a child shouldn’t have one standard of living while in Dad’s care and another while in Mom’s. We don’t want a child to suffer deprivation of basic necessities, but beyond that, why shouldn’t a child come to understand that he/she doesn’t live as well with Mom as with Dad, or vice versa? After all, experiencing that difference in lifestyles performs one important function; it teaches the child that working for a living confers certain benefits that not working for a living doesn’t. When you work and earn, you can live more comfortably than when you don’t. As long as the child isn’t deprived of the basics, what’s wrong with teaching that lesson? Do we really want kids to learn that the way to earn money without paid employment is to have children and let someone else support you? Is that a good lesson?

As written and interpreted, the New York law on child support makes sense. If you don’t have sole or primary custody, you don’t receive child support. Obviously, you can go out, get a job and support yourself and your child. That’s the way it should be and that’s why, if my prediction is correct, we’ll see mothers’ advocates descending on Albany demanding change.

We’ll see.

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