CHANGE OF CUSTODY, RELATIVE PAYEE, AND OTHER

ADJUSTMENTS TO FAMILY COMPOSITION

• Kathleen Kitson, Child Support Hearing Officer, NJ Judiciary

• Nicholas J. Palos, Support Magistrate, Kings County (Brooklyn, NY) Family Court

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Workshop Objective• This workshop will explore how

changes in the residence, living arrangements or status of a child already subject to a child support order may impact the support relationships between the courts, the IV-D agencies, the parents and the “custodians”

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Workshop Methodology

• The presenters will lead discussions of various different case studies.

• Participation from the attendees is expected. FAILURE TO ENGAGE THE DISCUSSION OF THE CASE STUDIES MAY LEAD TO MEMORIES OF LAW SCHOOL . . . “VOLUNTEERS WILL BE CHOSEN”

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What is meant by custody?

• Care and control of a child• Legal custody vs. factual circumstances• Sole, Joint, Shared or Split

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For purposes of this workshop, custody is understood to represent which party has care and control of the child(ren) sufficient to warrant legal authorities to designate that party the payee on a child support order

What constitutes a change in custody?

• Formal changes in custody– Court changes existing

order granting legal custody of the child to one person to another

– Child enters foster care– Guardianship granted to

a non-party– Death of a parent or

other caretaker

• Informal changes in custody– Child moves from one

household to another– Parent or other legal

custodian asks someone else to care for the child

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When custody changes, what could happen to the order of support?• Court based events– Payor or payee can move

to terminate the order– Payor, payee, or new

caretaker can move to modify the order, making it payable to the new caretaker

– New caretaker could file applications to establish order of support against one or both parents

• Out of court events– Self-help

• Payor stops paying original payee

• Payor pays new caretaker directly

• Payee turns funds over to new caretaker

– Assignment of order• Foster care

– Administrative re-assignment of obligation

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LEGAL ISSUES

• Standing • Arrears payments• Enforcement of existing order• Propriety of change in custody• Determination of custodial party• Interjurisdictional issues

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CASE STUDY #1A • Options for Mary– Continue Collecting– Terminate order of support• At IV-D Agency• In Court

– Refund money to David• Options for David– Continue Paying– Terminate order of support• At IV-D Agency• In Court

– Stop paying the order• Options for IV-D Agency– Stop Collecting/Paying– Keep Collecting/Paying

Mary and David were married. They had three children together. The divorce granted Mary custody of the children and David was directed to pay $200.00 per week for the children’s support. The order is being paid by income deduction to the IV-D agency. A few years later, the children come to live with David. 8

CASE STUDY #1B • What date should the termination of the order be effective?

• What is the arrears balance at the time the order is terminated?

• Could David have sought relief from the order prior to his being granted legal custody of the children?

When the children began residing with David, he owed Mary $9,000.00 in arrears. A year later, he finally obtains legal custody of the children and finally asks a court to terminate the order of support. During that year, he asked the IV-D agency to stop the income execution, which required payment of 150% of the current support obligation. David’s employer faithfully deducted the required $300.00 every week. The agency did not do so

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CASE STUDY #2A • May Anna ask a the IV-D agency redirect the payments due to Angela under the existing order? – May Angela?– May Tom?

• May Anna ask a court to modify the existing order in order to change the payee from Angela to Anna?– May Angela?– May Tom?

• May Anna petition a court to terminate the order payable to Angela and establish her own order directing Tom and/or Angela to pay her support for the children?

Tom and Angela have three children. They have been living with Angela and she obtained a court order directing Tom to pay $75.00 per week for the support of the three children. Unknown to Tom, four months ago, Angela left the children with their grandmother, Anna, while she is off looking for a new life in a different part of the country. Anna has not heard from Angela since. Neither Tom nor Angela pays the Anna anything for the support of the three child’s support.

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CASE STUDY #2B • What is the status of the order of support payable to Angela?

• To whom are the arrears payable?• Which court may fix arrears due? • Which court determines to whom

the arrears are payable?• Who may commence a

proceeding to enforce the existing order?

Five months after Angela left the children with her, Anna learned that Angela was killed in a car accident in another city. At the time of Angela’s untimely passing, Tom owed her $7,500.00 in back child support. Anna had no will and Anna has now been named the children’s legal guardian.

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CASE STUDY #3 • Can the foster care agency be substituted as payee in the existing order?

• To whom do the arrears which existed when Emma entered foster care belong?

• Can the foster care agency seek support from Jenny?

• If the goal of the foster care placement is the return of Emma to Jenny, how is Jenny entitled to any of the support funds payable to the agency?

John and Jenny have a child, Emma. Two years ago, John was ordered to pay Jenny $400.00 per month for the support of Emma. John has had no contact with Jenny and Emma for eighteen months and has never paid support. Three months ago, Emma was placed in foster care because Jenny was unable to care for the child.

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CASE STUDY #4

• Can Diane’s brother file to become the payee under the Georgia order?– If so, where would he need to do

so?– If so, is he able to register the

Georgia order?• If Diane’s brother cannot become the

payee, what would he need to do to obtain support for the children?

Jack and Diane have three children, aged 12, 14 and 16. When they separated, everyone resided in Georgia. A Georgia court entered an order directing Jack to pay $375.00 per month for the support of the children. A year later, Jack moved to Alabama, and Diane and the children moved to New York to be near her family. A year later, the children went to live with Diane’s brother in New Jersey. Diane’s brother wants to receive support for all three children from Jack.

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Presenter Contact Information

•Kathleen.Kitson@Judiciary.State.NJ.US•Npalos@courts.state.ny.us

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