October 27, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In New York, a parent who flees a jurisdiction in order to avoid paying child support can be denied the right to appeal any orders of arrears or the original order itself. Read about it here (New York Law Journal, 10/27/14).
It’s called the “fugitive disentitlement doctrine” under which fleeing the reach of a court’s jurisdiction automatically voids the fugitive’s right to appeal the order sought to be avoided.
Oliver Allain and Christina Oriola were married in New York in 2000 and divorced in 2005. Under the terms of the divorce and custody order, Oliver received primary custody of their son who was then four years old. Christina (then Oriola-Allain) was ordered to pay child support of $1,296 per month, which she seldom did.
Oriola-Allain filed five petitions to the Family Court over the next few years seeking a reduction in her child support obligations. None were granted.
Meanwhile, Allain filed two violations petitions alleging Oriola-Allain had fallen behind on payments. The court in both cases ordered her to pay arrears and eventually increased her monthly obligation to $1,467.
Sometime in 2011, Oriola-Allain moved to Nigeria. That year, the Suffolk County Department of Social Services petitioned the Family Court on the father's behalf and said Oriola-Allain owed $46,184 in child support arrears.
Between December 2011 and the following spring, proceedings were adjourned several times, even though Oriola-Allain had permission to appear by telephone from Nigeria.
In April 2012, Suffolk County Support Magistrate Isabel Buse ordered Oriola-Allain to pay $28,363 in arrears and recommended she be incarcerated for "willful violation" of a 2009 order to pay. The matter was sent to Family Court Judge John Kelly, who directed Oriola-Allain to appear in person. Oriola-Allain then filed objections to Buse's finding of "willful violation."
So, by 2011, Oriola-Allain had paid about half of what the court had ordered and, on finding her requests for reductions denied, absconded to Nigeria. Of course proceedings in the United States went on in her absence although she was entitled to participate via telephone. Eventually, she returned to this country and was incarcerated for 30 days. That proved insufficient to get Oriola-Allain to pay what she owes to support her son, but she still filed an appeal of the original order and the order of contempt.
Writing for the panel in denying the mother's appeal, Justice Sheri Roman (See Profile) noted that the doctrine, which originated in criminal law, can be extended to dismissals of appeals in civil cases when defendants' fugitive status is connected to the appellate process. The Third Department was the first court in New York to apply it to a child support case in 2003 in Matter of Skiff-Murray v. Murray, 305 AD2d 751.
In this case, Oriola-Allain "willfully and deliberately" left the state, Roman wrote. The judge was joined by justices Reinaldo Rivera (See Profile), Mark Dillon (See Profile) and Robert Miller (See Profile).
"The record reveals that the mother deliberately removed herself from the jurisdiction of the New York courts," Roman wrote. "She thereafter failed to personally appear before the Family Court, and a bench warrant was issued to secure her return. However, the mother continued to evade the court, rendering her a fugitive."
Now, this may not have much of an effect in getting Oriola-Allain to support her son. All it accomplishes is to stop her appeals of existing orders. That would seem to discourage any parent who “willfully and deliberately” leaves a jurisdiction in order to avoid paying support from returning. But whatever the case, it adds to the already-considerable arsenal wielded by courts and child support authorities for the purposes of enforcing child support orders.
Of course that arsenal doesn’t need to be expanded. If anything, it should be reduced. Powers that include not only imprisonment but the suspension of drivers’ and professional licenses are already pretty broad. Still, it’s hard to argue against a court’s power to discipline a litigant who, instead of complying with the courts orders, opts to leave the country instead.
Our child support system is far too badly conceived for the “fugitive disentitlement doctrine” to either fix or make much worse. We’d do far better to simplify the whole thing by making equal parenting orders the rule rather than the rarest of rare exceptions. Sanford Braver’s research shows that parents who get to see their kids regularly are much better at paying what they owe than are those who have to fight for every minute of parenting time. Parents with roughly equal parenting time can be confident, in most cases, of seeing their children and therefore will be more inclined to pay their support. And of course equal parenting means that neither parent “won” and neither “lost” the child custody sweepstakes. That means neither carries the type of hurt and resentment at the other parent and at the system that stole their children that encourages non-custodial parents to fudge on their support.
But, failing a broad presumption of equal parenting, we can still do a lot to make our system of child support make sense. That starts with courts issuing child support orders that non-custodial parents can actually pay. As things stand now, the system encourages courts to set orders as high as possible, a fact stated repeatedly by none other than the Office of Childs Support Enforcement. Do that one thing and we’d go a long way toward more kids getting the support they need and slashing a massive child support bureaucracy.
Then there’s the novel concept that non-custodial parents should be able to see their children for at least the meager time courts “award” them. Again, Sanford Braver long ago demonstrated that non-custodial parents whose visitation isn’t interfered with by custodial parents are far more likely to pay the support they owe. Sadly, even at this late date, courts tend strongly to refuse enforcement of visitation orders, making collection of support all the more difficult. Indeed, in Australia, family courts long ago simply quit enforcing their orders of access.
Finally, a requirement that custodial parents be required (a) to spend the money they receive in support for the child and not for themselves and (b) to prove by an accounting that they did so, would make non-custodial parents a lot happier about paying support. Countless non-custodial parents around the world complain about the same thing – they pay what they owe, but little Andy or Jenny still seems to lack for the basics of life. They see their children dressed badly and fed insufficiently and it’s hard to convince them that their hard-earned money isn’t going somewhere other than to their kids.
As I’ve detailed before, such a system of ensuring that child support is used for the children would be relatively easy to implement and require little in the way of administration by the courts. All it would take would be the payment of support into a dedicated account that would produce a monthly statement that both parents would be entitled to review. If a non-custodial parent believed there were inappropriate expenditures, he/she would be required to bring the matter before the court. Special administrators could easily deal with most of those issues prior to the involvement of a judge.
State power to enforce child support orders seems only to grow. But, grow as it might, there are still hundreds of billions of dollars owed nationwide, most of which will never be collected. The current system isn’t working. Maybe we should try being sensible.
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