January 22, 2020 Decisions

Family Court erred in failing to deduct non-voluntary union dues from income for child support purposes, Family Court properly denied claim raised for first time on objections

Matter of Julien v. Ware, 2018-11380

Appeal from an Order of the Family Court which denied the father’s objections to an order issued by a Support Magistrate which failed to deduct child support that he pays for another child, mandatory union dues, and pension contributions from his income prior to calculating child support.

The Appellate Division held the father’s objections should have been granted with regard to the union dues deduction.  The Child Support Standards Act allows for a deduction from parental income for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act §413[1][b][5][vii][A]). Nonvoluntary union dues maybe deducted under this category (see 33A AmJur 2d, Federal Taxation ¶ 16502).

Further, since counsel for the mother consented to deducting the father’s nonvoluntary union dues from the father’s income while calculating his child support obligation, the Family Court should have granted the father’s objection in this regard.

However, the Family Court properly denied the father’s objection regarding the pension contribution deduction to his income because he failed to request such action at the hearing and therefore, could not raise the assertion for the first time in his objections (see Matter of Loveless v. Goldbloom, 141 AD3d 662; see also Matter of Lahrs v. Lahrs, 158 AD2d 944). The father’s remaining contention is without merit.

 

Family Court properly awarded custody of child to unrelated caregiver over grandparent

Matter of Cade v. Roberts, 2018-10521

The subject child was born in June 2005, and is autistic. Shortly following his birth, his mother died and the child’s maternal great-grandmother had custody of the child. The appellant, the child’s maternal grandfather, was incarcerated at the time of the child’s birth. In August 2005, the petitioner, who has no family relationship to the child, moved in with the great-grandmother to assist with caring for the child. In November 2006, the petitioner moved back into her own residence with the child. In 2008, the great-grandmother transferred custody of the child to the appellant, who had since been released from prison, but the child remained in the petitioner’s home. The appellant was subsequently imprisoned again in June 2009, and his wife, the respondent, was awarded joint legal and residential custody of the child. In April 2012, the child moved out of the petitioner’s house and resided with the step-grandmother.

The step-grandmother became the primary caregiver after she decided that the child would no longer live with the petitioner. The petitioner commenced this proceeding seeking custody of the child in April 2012 and the petition was subsequently dismissed by the Family Court on the basis of lack of standing. The Appellate Division reversed the Family Court’s order and remitted the matter to the Family Court for a determination on the custody petition (see Matter of Cade v. Roberts, 141 AD3d 583). After a hearing upon remittitur, the Family Court awarded the petitioner custody of the child and directed that the appellant have access with the child.

On this appeal, the Family Court’s determination that the child’s best interests are properly served by awarding the petitioner custody with a shared access schedule between the parties will not be disturbed because it has a sound and substantial basis in the record (see Matter of Davis v. Delena, 159 AD3d 900, 901).