Catherine Wilson.

Thursday, May 7, 2009

Catherine Wilson, Bureau Chief
Northern Westchester

Should Our Courts Be
Creating Deadbeat Parents?

The current recession has affected many local residents severely. When faced with the loss of a job, clients or customers, or a cut in pay, workers must cut costs and live off of savings, if any, to survive. But for many workers, divorced parents who have child support obligations, cutting back is not an option. If child support payments are not met, those parents will face the loss of their driver’s license,
limiting their ability to work and pay the support even further. Parents who do not pay child support also face contempt of court charges
and fines.

On April 21st, the Westchester Women’s Bar Association’s Matrimonial, Families, Children and the Courts Committees hosted a program entitled “Substantive and Procedural Law Applicable to the Modification of Child Support and Maintenance.”The speakers at this event included Hon. Esther R. Furman, a Support Magistrate in the Family Court in White Plains, Hon. Linda S. Jamieson, a judge in the Westchester Supreme Court, and Hon. Josephine Trovini, a court Attorney and Special Referee in the Westchester Supreme Court.

The invitation for this event was only forwarded to members of the WWBA or anyone astute enough to access this on their website. Local
parents and Pro Se litigants, those unable to afford to be awarded attorneys, usually middle-class litigants, were not invited to get this critical
information direct from the judges’ and magistrates’ mouths.

No notices of this seminar were posted on the Pro Se website for the Westchester Courts or distributed to unrepresented litigants in matrimonial and support issues in Family and Supreme Court.

The Court’s standards for changing child support, called a “modification” by the courts, places the burden on the individual who applies
for the change. Child support may only be changed due to very limited circumstances. The support laws were not written by accountants or
economists, so they do not consider economic reality, e.g. the courts do not recognize inflation as a basis for increasing support, and therefore do not automatically increase child support each year for such increases.

To be able to petition the court for an increase in support due to higher expenses, a parent must submit evidence that their expenses increased. But the courts do recognize inflation as a legitimate basis for automatic increases in other areas.

Court employees, including magistrates and court attorneys, receive automatic cost-of-living increases each year to their taxpayer-subsidized
incomes, regardless of merit. Therefore, from the Court’s perspective, highly-paid court lawyers are automatically entitled to more money each year based on inflation, children are not.

There are other child support areas where our courts defy economic reality and other laws governing economic issues. New York State laws
continue to define emancipation for children as age 21, even though most students are still in college at that age and are not self-supporting.

The federal government is more realistic; the Internal Revenue Service recognizes that a child may still be a student until age 25 and allows
for a parent to claim that child as a dependent until such age; New York State laws, however, continue to contradict the federal laws.

The courts also do not recognize the increased expenses of a teenager as a basis for additional child support nor do they consider subsequent
care-giving responsibilities for other family members, which may limit a parent’s ability to work.

For example, a mother, who received initial child support for two young children possibly a decade ago, could find herself stuck with
living on that same level of support when those children are teenagers facing significant college prep and sports team’s travel expenses at a time when she may also be faced with downsizing to part-time work to care for aging parents.

Chances are that mother’s ex-husband has moved on and remarried, more than likely to a significantly “younger model”. Ex’s new wife, if still in her prime fertile years, will undoubtedly want a family of her own. The courts, in their “logic”, will actually grant the ex and his trophy wife a reduction in his child support payments to his first wife and two children, since additional children are recognized as a legal “change of circumstances”! So, in this not-so-hypothetical situation, not only does the first wife have more expenses for their older children, and less income thanks to caring for her parents, she now gets less child support because her ex can’t control his biological urges. And, consequently, her ex now has more money to spend on the woman who may have been the reason for the divorce to begin with! This common deadbeat dad scenario is all perfectly legal and actually sanctioned by our “justice” system.

Ironically, that same mother could also find her current child support based on her “ability” to earn, rather than on actual economic reality. The courts have consistently ruled that “earning capacity may be based on prior earnings, past employment experience, training, and education”.

So, if that mother used to be a highly-paid engineer, and she now works part-time as a consultant to care for a dying father, she will not qualify for an increase in child support due to her loss in income because the courts will rule that, as a trained engineer, she should be earning more money. She will actually be penalized by our legal system for “honoring her father and her mother”. Our courts clearly do not adhere to those ten basic laws, probably why they don’t hang them in the courthouse as reminders.

One of the attendees at the “Substantive and Procedural Law Applicable to the Modification of Child Support and Maintenance” program reported back to the Guardian on this event. Our source informed us that the above scenario was addressed by the judges and magistrates on this forum. Their attitude?

Esther Furman actually told the audience of lawyers, “If a man gets married again and has more children you have to look at that”, implying that she would grant these fathers a reduction in their child support obligations without noting that dad’s ability to sire additional progeny should not be used as a weapon against his existing children. Furman never noted why it was the responsibility of the children of the first marriage to subsidize the
children of a second relationship by having their child support reduced.

If mom/dad is capable of producing more children, shouldn’t they be equally responsible to work more hours/jobs to pay for those children? And why are the courts implying to the attorneys who appear before them that they support giving the first family “sloppy seconds”?

If parents were held fully responsible for their actions by our laws and our courts, including adultery and multiple child-producing relationships, perhaps our society might witness less of this behavior. None of the members of this forum noted the questionable ethics and inappropriateness of having judges and magistrates giving what amounted to a “head’s up” on their rulings to the attorneys who regularly appear before them.

The female members of the WWBA also never addressed the fact that most of the local parents who can afford lawyers are fathers. Those lawyers would have been in attendance at this program to garner the critical strategic insider information from the judicial officials on the forum.

But the local parents who are able to afford lawyers are usually stay-at-home mothers. Without a lawyer, or a direct invitation to, or knowledge of, this event, these mothers had no way to get access to this same insider information and would consequently be at an even greater disadvantage when facing their “lawyered up” ex-spouses in court. So this program was essentially discrimination against women. And sanctioned by the Women’s Bar Association.

To be a successful deadbeat parent, all you need to do in Westchester County is become a member of the local bar associations. If you can afford their annual fees, you will then obtain full access to their insider information and invitations to similar “meet and greet” events with the judges on your child support case. A “contribution” of $250 last week to the WWBA would have bought you an invite to Judge Sondra Miller’s home; Judge
Miller was the chair of the New York State Unified Court System’s powerful Matrimonial Commission and a Westchester Supreme Court and New York State Appellate Court judge.

Not to be outdone by the women, the Westchester County Bar Association offers many of their programs for free, subsidized by taxpayers. The WCB is announcing on their website that local lawyers may do a free “meet and greet” with the Surrogate’s Court, getting free refreshments and even continuing education credits to boot.

The Westchester County Surrogate’s Court and the WCBA’s Trusts & Estates Section will present an Advanced CLE Seminar on Wednesday, May 6, on Contested Probate Proceedings. This free seminar will take place at the Surrogate’s Courtroom, Room 1800, at 111 Dr. Martin Luther King, Jr. Blvd., 18th Floor, from 12 - 2pm. Attendees will receive 2 CLE credits. For more information or to RSVP, please contact Joseph M. Accetta, Esq. at (914) 824-5655. This reporter called Joseph Acceta to request admission to this seminar. Acceta informed us that “this was only for attorneys”. So, according to our courts, only lawyers may have direct access to the judges to hear how cases like theirs will be handled; Pro Se litigants and family members are not allowed to attend, denying them equal access to our courts.

Considering that this seminar is being held in a taxpayer-funded facility, during Court hours, no one may be denied access. If the court wants to limit this to lawyers only, then this seminar must be held off-site in a private facility. Otherwise, this must be open to all taxpayers since it is our
money that is paying for it! The courts have been guilty of this bad behavior in the past; the Guardian wrote of another free seminar offered to attorneys only last August, 2008. Clearly Surrogate’s Court ignored the Guardian’s criticisms of their misuse of taxpayers’ funds noted in that article.

So what does a parent with limited or no financial resources to do when faced with a moneyed parent who has direct access to judges, influencing the outcome of their child support cases? One source is Pace University’s Women’s Justice Center which notes it “sponsors and conducts lectures, seminars, trainings and free legal walk-in clinics on various issues, including domestic violence, sexual assault, trafficking, divorce, custody, child support, VAWA immigration, teen dating violence, elder law, elder abuse, and other issues”. The Justice Center offers its programs to all, and may be reached at 914-422-4069 or at www.pace.edu.