Matter of Maya B. v Omar Anthony L.

[*1] Matter of Maya B. v Omar Anthony L. 2010 NY Slip Op 50930(U) [27 Misc 3d 1227(A)] Decided on May 25, 2010 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2010
Family Court, Queens County

In the Matter of a Proceeding for Support under the Uniform Interstate Family Support Act, article 5-B of the Family Court Act Maya B., Petitioner,

against

Omar Anthony L., Respondent.



U-4921/09



Counsel: Michael A. Cardozo, Corporation Counsel (Sarrah Cherizard of counsel),

New York City, for Maya B.

Marc E. Strauss, Jamaica, for Omar Anthony L.

Toba Beth Stutz, Jamaica, Law Guardian and attorney for child.

John M. Hunt, J.

Respondent has moved for dismissal of this interstate child support proceeding on the

ground that the petitioner has significantly interfered with his right of access to the subject child,

or alternatively, that the subject child has "constructively abandoned" him, and under such

circumstances, it would be improper for this Court to order him to pay supportfor the child.

The following facts appear to be undisputed. The parties, Maya B. and Omar Anthony L.,

are the parents of one child, Omar Shariff L., who was born in New York on December 4, 1994.

Respondent's paternity of the child was established by order of filiation dated February 26, 2002

in a combined paternity and support proceeding which had been filed by the Commissioner of

Social Services in the New York County Family Court. Subsequent to the adjudication of [*2]

respondent's paternity, an order of support was entered on September 12, 2002 directing him to

pay child support in the amount of $75.00 per week on behalf of the child . The order of support

was thereafter terminated on July 23, 2004 and child support arrears in the amount of $3,108.26 were awarded to the child's mother.[FN1]

In or about June 2006, petitioner and the child relocated to Jonesboro, Georgia. Petitioner

is employed by Delta Air Lines as a Customer Service Agent, she is married to Andre B. with

whom she has two daughters, who are half-siblings of Omar. On January 26, 2009 this Court

received the underlying interstate child support petition from Georgia which had been filed under

the Uniform Interstate Family Support Act ("UIFSA"). The respondent, Omar Anthony L.,

appeared before a Support Magistrate of this Court on May 20, 2009 along with the Assistant

Corporation Counsel who appeared on behalf of the mother. At that time, respondent informed

the Magistrate that petitioner "took the child away and he wants nothing to do with the child",

which appears to include the payment of child support for Omar.

The Support Magistrate continued the proceedings so that counsel could be appointed on

behalf of respondent (Fam. Ct. Act §262 [a]) and a temporary order of support was entered

(Fam. Ct. Act §434). When the case next came before the Support Magistrate on July 28, 2009,

respondent's attorney informed the Magistrate that respondent was seeking dismissal of this child

support proceeding upon the ground that petitioner had alienated Omar from the father and that [*3]

she had otherwise interfered with and impeded his contact with the child. At some preliminary

point in the proceedings, respondent also asserted "constructive emancipation" as an alternative

ground for dismissal of the petition. The Magistrate appointed a Law Guardian for Omar (Fam. Ct. Act §249) and the proceedings were continued in order to receive the Law Guardian's report.

Upon receiving the report of the child's attorney, the Support Magistrate referred this proceeding

to this Court, as Family Court Act §439 (a) and (b) prohibit a Support Magistrate from hearing

and determining or granting any relief with respect to claims involving visitation including

visitation as a defense in a support proceeding (see, Matter of Rubino v. Morgan, 203 AD2d 698,

699-700 [1994]; Matter of Handler v. Selbert, 221 AD2d 788, 789 [1995]; Matter of Commiss-

ioner of Social Services [Kelly EE.] v. Allan EE., 241 AD2d 688 [1997] ; Matter of Mitchell v.

Remy, 24 AD3d 558 [2005]; but cf., Matter of Donnelly v. Donnelly, 14 AD3d 811, 812 [2005]

[Magistrate may consider claim of constructive emancipation as defense to support petition]).

Upon referral of this matter to this Court, the parties were directed to submit affidavits,

including factual assertions, setting forth their positions as to the motion, and the Law Guardian

was requested to submit a current written report of her investigation along with her present

recommendation.

II

This proceeding is commenced pursuant to the Uniform Interstate Family Support Act

("UIFSA"), which is codified in article 5-B of the Family Court Act.[FN2] In 1996 Congress enacted

the Personal Responsibility and Work Opportunity Reconciliation Act (Pub L 104-193, 110 US [*4]

Stat 2221), which "mandated that each state enact the Uniform Interstate Family Support Act

(UIFSA) by January 1, 1998 in order to receive federal funding for social welfare programs"

(Matter of Spencer v. Spencer, 10 NY3d 60, 65 [2008]; see, Matter of Parenzan v. Parenzan, 285

AD2d 59, 63 [2001], lv dismissed 97 NY2d 700 [2002]; Basileh v. Alghusain, 912 NE2d 814,

819 [Ind Sup Ct 2009]; Smith v. Baumgartner, 665 NW2d 12, 16 [ND Sup Ct 2003]; Superior

Court, County of Stanislaus [Jones] v. Ricketts, 153 MdApp 281, 319, 836 A2d 707, 729 [Ct

Spec App 2003]), and UIFSA has been adopted by all 50 states and the District of Columbia

(Matter of Auclair v. Bolderson, 6 AD3d 892, 893 [2004], lv denied 3 NY3d 601 [2004]; Ricketts

at 319, 729; Hook v. Hook, 170 NCApp 138, 140, 611 SE2d 869, 871 [2005], rev denied 359 NC

631, 616 SE2d 234 [2005]; State of New Mexico v. Jackson, 141 NM 647, 649, 159 P2d 1132,

1134 [Ct App 2007]).

UIFSA is designed "to ensure uniformity in interstate actions for the establishment,

enforcement, and modification of spousal and child support orders" (Matter of H.M. v. E.T.,

___ NY3d ___, 2010 NY Slip Op 03756 at 2 [May 4, 2010]; see, Hamilton v. Foster, 260 Neb

887, 899,620 NW2d 103, 114 [Sup Ct 2000]; see, DeGroot v. DeGroot, 939 A2d 661, 670 [DC

App 2008]; State of Utah Department of Human Services [Kirby] v. Jacoby, 975 P2d 939, 943

[Utah Ct App 1999]; Smith v. Baumgartner at 16; Lamb v. Lamb, 14 NebApp 337, 348-349, 707

NW2d 423, 434 [2005]; Hook at 144; McHale v. McHale, 210 Ariz 194, 198, 109 P3d 89, 93 [Ct

App 2005] [UIFSA establishes a set of "bright line" rules]). UIFSA replaced two earlier uniform

interstate child support statutes, the1950 Uniform Reciprocal Enforcement of Support Act

("URESA") and the1968 Revised Uniform Reciprocal Enforcement of Support Act

("RURESA"), under which litigants were subject to multiple and often conflicting support [*5]

orders, as well as inconsistent jurisdictional rules relating to interstate modifications of support

orders entered by sister state courts (see, Spencer at 65; Matter of Reis v. Zimmer, 263 AD2d

136, 141-142 [1999], amended 270 AD2d 968 [2000]; Matter of Daknis v. Burns, 278 AD2d

641, 643 [2000]; Ventura v. Leong, 68 AD3d 1318, 1320 [2009]; deLeon v. Jenkins, 143

CalApp4th 118, 124, 49 CalRptr3d 145, 148 [Ct App 2006]; Lunceford v. Lunceford, 204 SW3d

699, 702 [Mo Ct App 2006]; State ex rel. Children, Youth and Families Dept. v. Andree G.,143

NM2d 195, 202, 174 P3d 531, 538 [Ct App 2007]).[FN3]

The primary purpose of UIFSA and the earlier-enacted federal Full Faith and Credit for

Child Support Orders Act (42 USC §1738B)is to facilitate the adjudication and enforcement of

child support obligations in cases in which the litigants reside in different jurisdictions. UIFSA

and the Full Faith and Credit for Child Support Orders Act ("FFCCSOA") "together establish a

national single-order system, vesting continuing, exclusive jurisdiction with the issuing state.

Under the FFCCSOA and UIFSA, the state issuing a child support order retains continuing,

exclusive jurisdiction over its child support orders so long as an individual contestant continues

to reside in the issuing state" (Spencer at 66; see e.g., Clarke v. Clarke, 68 AD3d 1203, 1204

[2009]; Matter of Hutchinson v. Pirro, 11 AD3d 465, 466 [2004], lv denied 4 NY3d 703 [2005];

Matter of Mansfield v. Mansfield, 67 AD3d 912 [2009]; see also, Linn v. Delaware Child

Support Enforcement, 736 A2d 954, 961 [Del Sup Ct 1999]; Zaabel v. Konetski, 209 Ill2d 127,

133, 807 NE2d 372, 375 [Sup Ct 2004]; Draper v. Burke, 450 Mass 676, 679, 881 NE2d 122, [*6]

125 [Sup Ct 2008]; Hamilton v. Hamilton, 914 NE2d 747, 751-752 [Ind Sup Ct 2009]; Gibson v.

Gibson, 211 SW2d 601, 606 [Ky Ct App 2006]; Knabe v. Brister, 154 CalApp4th 1316, 1319,

65 CalRptr3d 493, 495 [Ct App 2007]; Koerner v. Koerner, 270 SW2d 413, 417 [Ky Ct App

2008]).

Consistent with UIFSA's rules, "a state may modify the issuing state's order of child

support only when the issuing state has lost continuing, exclusive jurisdiction" (Spencer at 66).

Under the most commonly encountered circumstances, an issuing state will lose continuing,

exclusive jurisdiction where both of the individual contestants (i.e., parents) and the child or

children who are the subject of the support order have moved to different states. Under that

scenario, the issuing state's loss of continuing, exclusive jurisdiction is sensible as "[t]he issuing

state no longer has a nexus with the parties or the child and, furthermore, the issuing tribunal has

no current information about the circumstances of anyone involved" (McHale at 197, 92; see,

Jurado v. Brashear, 782 So2d 575, 580 [La Sup Ct 2001]; Zaabel at 133-135, 375-376;

Lunceford at704-705; Klingel v. Reill, 446 Mass 80, 83-85, 841 NE2d 1256, 1259-1260 [Sup Ct

2006]; Draper at 682, 127; Lattimore v. Lattimore, 991 So2d 239, 241-243 [Ala Ct App 2008];

see e.g., Auclair at 894-895; Hutchinson at 466; Matter of Paskuly v. Lowenkron, 17 AD3d 1007,

1009 [2005]).[FN4] [*7]

Alternatively, a state other than the issuing state may acquire continuing, exclusive

jurisdiction where one or both of the individual contestants has moved to another state, and the

parent who is not seeking modification of the support order is subject to the personal jurisdiction

of the court where the modification petition is sought to be filed. This also requires that the

parents file written consent for the non-issuing state court to assume continuing, exclusive

jurisdiction over the child support order (e.g., Matter of Daniels v. Spector, 53 AD3d 484, 485

[2008]; Auclair at 895; Hutchinson at 466; Matter of Batesole-Harmer v. Batesole, 28 AD3d 551

[2006]; Knabe at 1326, 500; Draper at 679, 125). Where these conditions are met, the court

which enters a modified support order becomes the "issuing state" for purposes of UIFSA and

for determining jurisdiction upon any further applications to modify the support order.

A

As a procedural statute, "UIFSA does not create an independent duty of support. The

purpose of UIFSA in regard to child support is to enforce or establish a child support order

against someone who has a duty to pay support or to modify an existing child support order

where interstate aspects are involved" (Hamilton v. Foster at 900, 104; see also, Jacoby at 946).

Because UIFSA only provides a procedural framework for enforcing rights which are defined in

other statutes (Department of Human Services [Young] v. Leifester, 721 A2d 189, 191 [Maine

Sup Ct 1998]; see also, Child Support Enforcement Division of Alaska v. Brenckle, 424 Mass

214, 219-220, 675 NE2d 390, 393 [Sup Ct 1997]; Jacoby at 943; Goddard v. Heintzelman, 875

A2d 1119, 1122, 2005 PA Super 181 [Sup Ct 2005]), it directs that a court should apply its own

procedural and substantive law in determining whether there is a legal obligation to provide

support as well as the extent of that obligation (Fam. Ct. Act §580-303; H.M. v. E.T., slip opn [*8]

at 3-4; State of New Mexico Department of Human Services v. Jackson, 141 NM 647, 650, 159

P2d 1132, 1134 [Ct App 2007]; Leifester at 191). Thus, the court is required to apply its own

state law in a UIFSA proceeding, and with one exception not relevant to this case, a respondent

may assert any defense which can be properly raised in an intrastate proceeding to enforce or

establish support.[FN5]

Respondent has asserted two distinct defenses in this proceeding. First, he claims that

the petitioner has interfered with or frustrated the exercise of his rights to access to his son.

Second, he claims that the child has refused to communicate or have contact with him. While

both of these defenses are recognized in New York, this Court finds that respondent's motion

papers fail to establish a prima facie right to relief based upon either defense.[FN6]

Pursuant to Domestic Relations Law §241, a court may prospectively suspend a non-

custodial parent's obligation to pay child support under two different circumstances. First, a

parent's obligation to pay child support may be suspended where there is proof that a custodial

parent has deliberately frustrated or actively interfered with a non-custodial parent's visitation [*9]

rights (Matter of Hecht v. Hecht, 222 AD2d 589 [1995]; Hiross v. Hiross, 224 AD2d 662, 663

[1996]; Matter of Clum v. Seksinsky, 263 AD2d 507, 508 [1999]; Foster v. Daigle, 25 AD3d

1002, 1004 [2006], lv dismissed 6 NY3d 890 [2006]; Ledgin v. Ledgin, 36 AD3d 669, 670

[2007]; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2007]; Matter of Rivera v. Echavarria, 48

AD3d 578 [2008]; Katz v. Katz, 55 AD3d 680, 682-683 [2008]). Second, child support may be

prospectively suspended where it is established that a child of employable age has actively

abandoned his or her parent by refusing all contact and visitation without just cause (Matter of

Parker v. Stage, 43 NY2d 128, 134-135 [1978]; Matter of Alice C. v. Bernard C., 193 AD2d 97,

109 [1993]; Radin v. Radin, 209 AD2d 396 [1994]; Matter of Chamberlin v. Chamberlin, 240

AD2d 908, 909 [1997]; Matter of Ogborn v. Hilts, 269 AD2d 679, 680 [2000]; Matter of

Chestara v. Chestara, 47 AD3d 1046, 1047 [2008]; Labanowski v. Labanowski, 49 AD3d 1051,

1053-1054 [2008]; Matter of Abidi v. Antohi, 64 AD3d 772, 773-774 [2009]).

The party alleging frustration or interference with his or her visitation rights or who raises

the claim that there has been constructive abandonment by a child, bears the burden of proving

that claim (Alice C. v. Bernard C., at 110; Radin at 396; Matter of Gold v. Fisher, 59 AD3d 443,

444 [2009]; Matter of DeWitt v. Giampietro, 66 AD3d 773, 774 [2009], lv denied 14 NY3d 704

[2010]; Kordes v. Kordes, 70 AD3d 782, 783 [2010]; Matter of Burr v. Fellner, ___ AD3d ___,

2010 NY Slip Op 04377 [May 18, 2010]). Respondent's papers fail to set forth facts which

would establish either defense, requiring denial of his motion for dismissal of the petition.

The allegations in respondent's motion papers do not in any way establish that the

mother has actively interfered with or frustrated his visitation rights. Respondent does not allege

that there has ever been a court order or judicial decree which establishes his right to visit Omar, [*10]

nor does he allege that he has ever sought such an order or decree from any court in any

jurisdiction. While visitation is a "joint right" held by a non-custodial parent and his or her child

(Weiss v. Weiss, 52 NY2d 170, 175 [1981]; Matter of Nancy M. v. Brian M., 227 AD2d 404

[1996], lv denied 88 NY2d 810, 811 [1996]; Matter of Doherty v. Doherty, 49 AD3d 641, 642

[2008]; Matter of Cervera v. Bressler, 50 AD3d 837, 839 [2008]; Matter of Aguirre v. Romano,

___ AD3d ___, 2010 NY Slip Op 04182 [May 11, 2010] at 2), the right is not self-executing.

Parenthood requires a biological connection as well as the assumption of parental

responsibilities and the exercise of parental rights (Matter of Raquel Marie X., 76 NY2d 387, 401

[1990], cert denied 498 US 984 [1990]). Here, Mr, L. has not alleged any facts which would

establish, if true, that he sought to assume his parental responsibilities and assert his parental

rights in any meaningful way for many years. There is no claim that respondent has voluntarily

paid support or provided necessaries for Omar, that he has sought to maintain regular and

substantial contact with the child, or that he has resorted to the courts to enforce his rights as a

parent (see, Matter of Crouse v. Crouse, 53 AD3d 750, 752 [2008]; Matter of Juneau v. Morzillo,

56 AD3d 1082, 1086 [2008]; Matter of Boccalino v. Boccalino, 59 AD3d 901, 903 [2009]). In

the absence of such claims, respondent's essentially unsupported assertion that the mother

actively interfered with or frustrated his rights to visit and maintain contact with the child, does

not warrant dismissal of the petition.

Respondent's second asserted defense is that Omar has "constructively abandoned" him

by refusing to maintain contact with or visit with him. In order for a parent to establish a prima

facie case of constructive abandonment which would entitle the parent to relief from an

obligation to pay child support, there must be proof that the child in question is of employable [*11]

age. Omar is only 15 yearsold and as a matter of law, not of "employable age". Therefore, this

Court is precluded from finding that the child has constructively abandoned the father, regardless

of the specific facts alleged in the father's motion papers(Hiross at 663; Foster v. Daigle, 25

AD3d 1002, 1004 [2006], app dismissed 6 NY3d 890 [2006]; Matter of Saunders v. Aiello, 59

AD3d 1090, 1091 [2009]).

Accordingly, as respondent's papers in support of the motion to dismiss the UIFSA

petition do not establish either of the asserted defenses, it is hereby

ORDERED, that respondent's motion to dismiss the petition is denied; and it is further

ORDERED, that the proceeding is referred to the assigned Support Magistrate who shall

schedule the petition for further proceedings; and it is further

ORDERED, that the temporary order of support entered by the Support Magistrate on

July 28, 2009 is hereby continued.

This constitutes the decision and order of the Court.

E N T E R:

__________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

May 25, 2010

Footnotes

Footnote 1:The arrears due to the child's mother apparently accrued between the date upon which she closed her Aid to Dependent Children case and July 23, 2004. In that regard, Family Court

Act §571 (3) (a) provides that where the assignment of support rights to a social services official

terminates (see, Social Services Law §348 [2]), payment of an existing order of support shall

continue to be made to the Support Collection Unit for the benefit of the respondent's dependents

(18 NYCRR §347.13 [e], [f]).

Footnote 2:The Family Court is the tribunal designated to entertain UIFSA proceedings in New York (Fam. Ct. Act §580-102; Matter of H.M. v. E.T., ___ NY3d ___, 2010 NY Slip Op

03756 at 3 [May 4, 2010];Matter of Strom v. Lomtevas, 28 AD3d 779, 780 [2006], lv

dismissed 7 NY3d 863).

Footnote 3:New York never enacted the URESA or the RURESA (Sobie, Practice Commentaries,

McKinney's Cons Laws of NY, Book 14, Domestic Relations Law at 168 [West 1988]). Instead,

New York followed its own Uniform Support of Dependents Law (Domestic Relations Law former art. 3-A), and UIFSA replaced the Uniform Support of Dependents Law (Parenzan at 63; Matter of Shafer v. Martin, 287 AD2d 825, 826 [2001]).

Footnote 4:The power of a state court other than the issuing court to modify the child support order is not limitless. For example, the tribunal which subsequently acquires continuing, exclusive

jurisdiction is prohibited from modifying any aspect of the child support order which would not

be subject to modification under the law of the issuing state (Fam. Ct. Act §580-611 [c]; Spencer

at 67-68; Hill v. Hill, 777 NW2d 252, 256-257 [Minn Ct App 2010] [Minnesota court could not modify duration of Mississippi child support order where such modification prohibited under law of issuing state]; Matter of Epstein v. Shoshani, 66 AD3d 1014, 1017 [2009] [Family Court prohibited from modifying durational provisions of Pennsylvania child support order]).

Footnote 5:UIFSA expressly precludes a respondent whose parentage of a child has been previously established to raise the defense of non-paternity in response to the filing of a proceeding under the Act (Fam. Ct. Act §580-315). In other words, a respondent may not collaterally attack a determination of paternity made in another jurisdiction in the context of a UIFSA proceeding as

the existing order or decree of paternity is generally entitled to full faith and credit (State v. Hanson, 725 So2d 514, 515 [La Ct App 1998]; Reid v. Dixon, 136 NCApp 433, 439-440, 524 SE2d 576, 577 [Ct App 2000]).

Footnote 6:The right of the respondent to assert various visitation-related defenses in a UIFSA

proceeding does not vest the court in the responding state with subject matter jurisdiction to

enter orders concerning visitation with the child who is the subject of the proceeding (Chaisson

v. Ragsdale, 323 Ark 373, 375-376, 914 SW2d 739, 741 [Sup Ct 1996]; In the Interest of R.L.H., 942 P2d 1386, 1387-1389 [Col Ct App 1997]; Office of Child Support Enforcement v. Clemmons, 65 ArkApp 84, 87-88, 984 SW2d 837, 839 [Ct App 1999]; Harbison v. Johnston,

130 NM 595, 600, 28 P3d 1136, 1141 [Ct App 2001]).