November 7, 2019 by Kenya Rahmaan
Richard M. Scotti was always a dedicated father and provider to his children and paid his child support on time and in full for years. It wasn’t until the printing industry, largely in part due to the age of the Internet, began to suffer that Scotti was forced to sell his business in order to pay off debts accrued while he was fighting to hold on to his company. Almost overnight, his six-figure income decreased to the low five figures. While he scrambled to repair his life, he did as he was advised and filed immediately for a downward modification of his child support order. He has since been living a nightmare which worsens as he awaits the jail sentence looming over his head.
Yes, jail. The issues began when the state of New York failed to adhere to the guidelines concerning when child support modifications were appropriate. According to FindLaw, the court may modify an order of child support where there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted. The judge denied Scotti’s modification request, ignored income documentation proving the decrease in income, and used imputed income as justification for denying the request. These denials were a violation of child support policies and resulted in unpaid child support and arrears increasing at an alarming rate.
Everyone tasked with working on the Scotti case failed to follow the New York modification guidelines and the Judge specifically ignored 45 CFR §302.56 of The Federal Register, published on December 20, 2016 (http://bit.ly/2l1cuMi). Based on the Final Rule (2016), if imputation of income is authorized, the state must take into consideration specific circumstances of the non-custodial parent to the extent known. Some of these factors include but are not limited to current earnings, age, education, local job market, availability of employers willing to hire the non-custodial parent, and prevailing earning levels in the local community. Not only did they not consider that Scotti was entering new to the job market arena at almost 60 years old, they also didn’t consider that based on experience in the quickly disappearing printing industry, it would be nearly impossible for him to earn income as an employee that he’s earned as a business owner.
Finally, Scotti was recently convicted of ‘willfully’ failing to pay child support and is awaiting sentencing. The judge has ignored precedent established by the United States Supreme Court in Turner v Rogers. This case is supposed to be used by the states in all contempt cases as the determination of ability to pay is critical before a parent can be sentenced to prison. Under established Supreme Court principles, “a court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order” (http://bit.ly/2mJXxi4). And yet, even after repeatedly providing evidence, Scotti is due to be incarcerated for up to one month. Overseers of the child support system must be diligent in following the guidelines set forth in order to protect the rights of non-custodial parents. Dead broke should never mean ‘Deadbeat’ and it is not a crime to be poor.
Kenya Rahmaan is the author of The Child Support Hustle and founder of a national movement to reform child support policy.