On June 3, 2010, the petitioner-father, acting pro se, filed "Objection to Order by Support Magistrate," in connection with the Decision/Order, filed and entered on May 3, 2010.An Affidavit of Service has been filed with the Court, indicating proper service of the Objection upon the respondent. On August 4, 2010, the Court received a copy of the transcript of the support hearing which was then transmitted by the Court to the parties. No rebuttal of the Objection was received from the respondent-mother. This Court, which is an Integrated Domestic Violence Court, takes judicial notice that the L. family has appeared before it in several recent court proceedings, including the parties' matrimonial action and the father's post-judgment custody action.

As background, on October 14, 2009, the father filed a petition seeking to modify the child support provisions contained in the parties' Judgement of Divorce, dated June 18, 2009. The Judgment of Divorce, which was based upon the parties' stipulation to continue a Temporary Order of Support made in Family Court, directed the petitioner to pay the sum of $210.77 per week in basic support for three children and $54.08 per week for child care. In his modification petition, as a change in circumstances the petitioner alleged that he had lost his job through no fault of his own. He asked that the children reside with him and that the respondent-mother be directed to pay him the sum of $264.00 per week for child support.

On October 30, 2009, the father filed an Amended Petition alleging that he had a job with less hours and earning less money. He also alleged that the mother was earning more money. The father asked that the children reside with him and that the mother should pay $264.00 per week for child support and $125.00 per week for daycare. He requested that his obligation to pay daycare be vacated since daycare was not needed.

On January 29, 2010, the father retained an attorney and filed another Amended Petition. He alleged that the children were in his custody more than they were in the mother's care. He also alleged that his employment has changed and his wages once again have decreased. The father requested that his child support obligation be vacated and that the mother should be ordered to pay child support, daycare costs, and health insurance in accordance with the provisions of the Child Support Standards Act (CSSA). On January 22, 2010, the Support [*2]Magistrate entered a temporary order reducing the father's child support obligation to $150.00 per week.

The matter came to trial on April 12, 2010 with the father appearing, together with his attorney, and the mother appearing pro se.

The Support Magistrate made the following findings of fact: (1) in 2009, the father earned $39,474.91 in W-2 wages plus $5,286.25 in unemployment income and at the time of the hearing in April, 2010, the father earned approximately $630.00 per week; (2) in 2009, the mother earned approximately $38,922.00 and at the time of the hearing in April, 2010, the mother earned approximately $812.00 per week; (4) the father has not demonstrated that he is not able to earn the amount of money that he earned at the time of the divorce; (5) although the children spend more time in the care of the father than at the time of the divorce and less time at daycare, the mother is still deemed to be the custodial parent as the amount of time that the children spend with each parent is not the only basis or factor for determining who is the custodial parent and that the father did not provide testimony that his expenses have increased for the children; and (6) it is unjust and inappropriate that the father's child support obligation continue at the amount set in the Judgment of Divorce based upon the amount of time the children spend with him which reduces the expenses of the mother.

Based upon these findings, the Support Magistrate directed the father to pay $100.00 per week in basic child care support plus his share of child care expenses as follows: $37.62 per week from October 14, 2009 through April 30, 2010 and 44% of the costs thereafter. The father was also directed to pay $2.75 per week as his share of the children's health insurance premium under the Child Health Plus program. The parties were directed to share uncovered health costs with the father responsible for 44% and the mother responsible for 56% of such costs.

The father objects to this Order, making a number of arguments: (1) he has the children the greater period of time and the children reside with him and go to the school district in his geographic area; (2) he has greater expenses than the mother with respect to the children; (3) the Support Magistrate erred in not articulating what factors it relied on in determining the father to be the non-custodial parent; (4) the Support Magistrate erred in concluding that the father is capable of paying $170.00 per week in child support to the mother. The father also included a number of statements which were not offered into evidence at trial.

As a preliminary matter, this Court may not entertain new evidence during the appeal process as it is the responsibility of each party to bring forth all of his or her evidence at the time of the support hearing before the Support Magistrate.

In determining the status of the custodial and non-custodial parent, the Court looks beyond the number of hours that a child spends with each parent. Indeed, the Court of Appeals has specifically recognized that a particular form of child support calculation methodology may encourage a parent to seek more custodial time to reduce the child support obligation but that it is "undesirable" to encourage a parent to keep a stop watch on visitation in order to increase the percentage of shared custody. (Bast v. Rossoff, 91 NY2d 723, quoting from Matter of Simmons v. Hyland, 235 AD2d 67.) In most cases, the trial court can determine who is the custodial parent for purposes of child support by identifying which parent has physical custody of the child for the greater percentage of time; however, the Court of Appeals acknowledges that "the reality of the situation governs." (Id., quoting Bast v. Rossoff, 167 Misc 2d 749.) [*3]

In her Decision, the Support Magistrate articulated sufficient information to support her finding that the father is not the custodial parent for purposes of calculating child support. The mother credibly testified that she is their main source of support for purposes of clothing, child care expenses, health insurance, and medical expenses. It is also significant to this Court that it was the mother who left work to care for a child who could not attend school even though on that particular day the father would have had custody under the custody order.

The mother credibly testified that the father has not paid child support since September, 2009. This testimony was unrebutted. Although the mother, who was not represented by counsel, did not obtain a copy of the child support arrears report, this Court roughly calculates the child support arrearage owed by the father to be over $7,000.00 based on the child support order contained in the parties' Judgment of Divorce (i.e., $210.77 per week in basic support for three children and $54.08 per week for child care) and the Temporary Order of Support ($150.00 per week commencing on January 22, 2010). In his self-serving statements concerning how much he pays for the children's expenses, the father conveniently ignores the substantial arrearage that has accumulated. It is clear to this Court that the mother has shouldered the greater burden of supporting these children. It is outrageous that the father should claim that he is the primary financial support for the children when he has not paid any Court-ordered support for over eight months. This Court finds that many of the father's complaints about the children's clothing and living conditions at the mother's residence are directly related to his non-support of these children.

With respect to the father's assertion that the children spend more time with him, this Court has carefully examined the stipulated Temporary Order of Custody, filed on January 20, 2010, as well as the second stipulated Temporary Order of Custody, filed on February 24, 2010, which was in effect at the time of the support hearing. The Order is carefully worded such that the father's parental times are specified to the minute, e.g. his time with the youngest child begins at 11:00 a.m., with the middle child at 11:15 a.m., and with the oldest child at 3:30 p.m., whereas the mother's times are not as detailed. The Court notes that this order was prepared by the father's attorney in a post-matrimonial proceeding in which the mother was not represented. There is no indication to this Court that it was the intention of the mother that the father would have greater parental access to the children than what is awarded to her; rather, the Order shows that the father was intentionally documenting his parental time with the children, even to the minute. It is also noteworthy that the father filed his second amended support petition nine days after the entry of the first temporary custody order.

With respect to the father's assertion that he is unable to pay child support, New York law states that child support is determined by the parent's ability to provide for the child rather than his or her current economic circumstances, and it is proper for the court to impute earnings to parents based upon their past earnings, earning capacity, and educational background. (Zwick v. Kuhlan, 226 AD2d 734.) In his Financial Disclosure Affidavit dated January 26, 2010, which was filed with his second Amended Petition, the father stated that his income from the previous year was $50,000.00 and the attached Tax Return Transcript showed his income to be $60,697.00 in 2008. The father cites his loss of employment in 2009 and his current, lesser-paying job with annual gross income of approximately $32,000.00 as a change in circumstance to support his modification petition. However, there is no testimony or other evidence in the record that shows [*4]the father conducted a diligent effort to find full-time employment at a rate commensurate with his past earnings. [Cox v. Cox, 20 AD3d 527, 528 (2nd Dept. 2005).] Under these circumstances, the Court will impute the adjusted income of $50,000.00 per year to the father for purposes of the child support calculation.

A review of the father's testimony and his original petition and his two amended petitions leads the Court to the inescapable conclusion that the father is waging an aggressive campaign to end his child support obligation and to receive child support payments from the mother. To that end, he is attempting to take advantage of settled child support law stating that the parent with primary custody is granted an award of child support and in cases of shared physical custody the parent with less income shall be deemed the custodial parent for purposes of receiving child support. This Court finds that the mother is the custodial parent and that the father's imputed annual income is $50,00.00 with the CSSA adjustments having been removed from that amount.

The decision in this Objection is complicated by the fact that on July 16, 2010, while the Objection was pending, the father filed another modification petition seeking to terminate his child support obligation and to order the mother to pay all medical, vision, dental, and daycare costs plus $250.00 per week in child support to him. The Support Magistrate issued a temporary order of zero support in favor of the father based upon the apparent agreement of the mother, and the matter is scheduled for trial on October 15, 2010 on the remainder of the relief requested by the father. The father has also filed a family offense petition against the mother on behalf of the children as well as a custody petition seeking sole custody. The first appearance on these matters is scheduled in this Court on September 2, 2010.

Although it appears that the current temporary order for zero support was issued on the consent of the mother, this Court wishes to remind the parties that it is long-standing public policy in New York that it is the duty of each parent to support the child. Indeed, the objectives of the Child Support Standards Act are to assure that both parents contribute to the support of the children and to ensure that the children do not suffer the economic burden resulting from the separation of the parents. [Reis v. Zimmer, 263 AD2d 136, 143 (4th Dept., 2000).] According to Professor Merril Sobie in his "Practice Commentaries" to the child support statute concerning parents' duty to support their children, there is a strong public policy in New York that the presumptively correct amount of child support calculated under the CSSA is the amount which should be devoted to the support of the children under ordinary circumstances. (Fam.Ct. §413, p. 78.)

It has also been held that where the rights of a child are involved, an agreement between the parents yields to the welfare of the children. [Maki v. Straub, 167 AD2d 589, 590 (3rd Dept. 1990).] Indeed, the court has a parens patria role to protect the interests of the children, who are the intended beneficiaries of the child support law. [Moat v. Moat, 27 AD2d 895, 896 (3rd Dept. 1967).] "The parental duty of child support shall not be eliminated or diminished by the terms of a separation agreement." [Pecora v. Cerillo, 207 AD2d 215, 218 (2nd Dept. 1995).]

Under the Child Support Standards Act, it is acceptable for the parents to agree to deviate from the presumptively correct child support obligation of the non-custodial parent under CSSA. However, that deviation must be explained and accepted by the court after a consideration of all of the factors, including the interests of the child. [Cassano v. Cassano, 85, NY2d 649, 653 (1995); Sievers v. Estelle, 211 AD2d 1995 (3rd Dept. 1995).] There is no such acceptable [*5]deviation in this proceeding and the record does not suggest that the father's support obligation could be set at zero under the CSSA.

This Court is aware that the father has filed multiple actions in the Supreme and Family Courts over the past year and that each of these court appearances involves, at the least, inconvenience to the mother and may, at the most extreme, result in the loss of her job. However, the appellate court has held that it is the duty of a custodial parent to take whatever action is necessary to secure adequate child support. (Pecora v. Cerillo, at 217.) It is inappropriate for a parent to cede the right of the child to receive support from a parent, whatever the inducement.

Although this Court would favor reinstatement of the child support order contained in the parties' Judgment of Divorce, it does recognize that the record shows that the terms of the childcare and health insurance provisions are no longer applicable. Accordingly, the Court denies the Objection and in the interests of justice the Court will make the following award of support, effective as of October 14, 2009 , which is the date of the filing of the father's original petition.

With respect to the father's pending petition to vacate his child support obligation and receive support from the mother, the Court will remit the support matter to the Support Magistrate and suggest that the trial date be cancelled and the matter be stayed until such time as the related custody proceeding is resolved in the Integrated Domestic Violence Court. In that way, should the father gain sole custody of the children in the custody proceeding, his right to support will be effective on the date that he filed the support petition, and if the father is not the custodial parent, the mother can ask the Support Magistrate to dismiss his support petition.

The Court calculates the child support obligation using the following findings: adjusted income of the father is $50,000.00; adjusted income of the mother is $35,948.00; the combined adjusted income of the parents is $85,948.00, with the father's share being 58% and the mother's share being 42%; there are 3 children; the presumptively correct amount for basic care is $24,925.00; the father's child support obligation for basic care is $278.00 per week; the father's child support obligation is $282.00 per week, after adjusting the basic care award to reflect the father's share of the health insurance premium ($3.64); the support award shall be effective as of October 14, 2009 and payable through the Support Collection Unit via income deduction.

ORDERED, that the support provision decretal paragraphs of all previous orders of support, including the temporary order dated August 17, 2010, are superceded by the instant support order; and it is further

ORDERED, J.L. is directed to pay the sum of $282.00 per week to E.L. payable though the Support Collection Unit via income deduction, effective October 14, 2009, for the support of J.L.'s children; and it is further

ORDERED, that E.L. is directed to continue to provide health insurance for the children through the Child Health Plus program or other publicly funded health insurance program. The father shall be responsible for 58% and the mother shall be responsible for 42% of any uncovered health care expenses for the children within 30 days of a receipt from the other party via certified mail (certified return receipt mail is not required); and it is further

ORDERED, that J.L. shall be responsible for his share of childcare expenses payable to E. L. through the Support Collection Unit through income deduction in the amount of $54.00 per [*6]week from April 18, 2008 through October 13, 2009, and $50.00 per week from October 14, 2009 through August 31, 2010. As of September 1, 2010, J.L. shall pay 58% of childcare costs, which shall be payable by him directly to E.L. on or before the fifteenth day of each month after receiving a statement of the previous month's cost via certified mail by the first day of each month; and it is further

ORDERED, that the Support Collection Unit shall recompute the account.