One of the issues that I periodically see in child support cases is that a party who is already paying child support has another child or children with a different party, resulting in additional child support orders. Usually in those circumstances, the child who is the subject of the first order is receiving support on the entire income of the payor. The subsequent children receive child support on the basis of payor’s income after child support payable pursuant to the first order is deducted. As a result, the child who is the subject of the first order will always receive higher child support amount than the child or children receiving child support under the subsequent orders. In addition, the payor’s income is subject to multiple orders and can pay half or more of his gross income in child support.
The above approach has been traditionally applied in Family Court cases. In a recent decision, Demetrius D. v. Lori T., 2011 N.Y. Slip. Op. 21025 (Fam. Ct. Clinton Co. 2011), the court questioned the logic of this approach. The court noted that:
From the children’s perspective, the fact that one child receives more child support than another child based solely upon which custodial parent obtains the first support order is unfair and irrational. Obviously, the children cannot control which parent applies for support first nor can the child control the speed of litigation. Nevertheless, this is the statutory law of the State of New York. It should be noted that it is not the age of the children, but rather the order in which the children receive a child support order that determines which children will receive preference under the law[FN4]. Of course, it would also be unfair and irrational to give preference to one child over another based solely upon birth order.
Id. at 3.
Further, the court stated that creation of these additional support order may be grounds for modifying the original child support obligation under Family Court Act § 413(1)(b)(5)(vii)(D):
Subdivision D also raises multiple issues with respect to modification petitions. There is no express provision in the Family Court Act which limits the Subdivision D deduction in modification cases to court orders issued prior to the original order sought to be modified. In other words, in the event that a parent demonstrates a material change of circumstances which warrants the re-application of the Child Support Standards Act, there is no language that excludes new orders issued between the date of the original order and the date of the hearing on modification petition from Subdivision D. Thus, the Court concludes that if there is a material change of circumstances that warrants the new application of the Child Support Standards Act, the non-custodial parent would be entitled to a deduction under Subdivision D for all child support actually paid pursuant to Court orders for other children, whether or not the Court orders for other children were issued before or after the original order for the subject child.
But in Demetrius D., what the court gave with one hand, it took with the other. The more flexible approach as stated in the decision, was subject to application of general child support modification standards, including a determination that the hardship came as a result of payor’s voluntary actions and was self-inflicted. The court found that having additional children was a self-inflicted hardship that came as a result of his voluntary actions that does not warrant downward modification of payor’s child support obligation.
What is the lesson here for the family law lawyers? If the payor can establish that somehow the act of having more children was involuntary, then the payor may be entitled to a modification of the original child support obligation on the basis of subsequent orders. It is hard to see the circumstances where it would be remotely possible. On the other hand, under appropriate circumstances, the above approach may help a payor dealing with multiple child support orders.