In a recent decision an Appellate Court in New York State held a father who has custody of his son during the majority of the year has no obligation to pay child support to the child’s mother even though the father has in excess of $20 million in assets and the mother had no income!
In the case of Rubin vs. Della Salla 350047/09, the Appellate Division (an appeals court) of the First Department held Anthony Della Salla who has custody of his son 56% of the year is the child’s custodial parent. Since he was the child’s custodial parent, he cannot be ordered to pay child support even though the mother is penniless and he has $20 million in assets.
History Of The Case
The couple was never married. The child was born in 2003. The couple broke up in 2007. The boy lived with his father most of the time. During the 2008-2009 calendar year, the parties reached an agreement wherein Della Salla took the boy to school most school days and had custody of him most weekends and holidays.
In the year 2009, Ms. Rubin filed an action against Della Salla seeking sole custody and requesting he pay child support. Rubin had been unemployed since 2001 and had no income. Della Salla had voluntarily been providing her with money. However, he reduced the amount of money he had been giving her in 2008 to force her to obtain employment.
Initial Pendent Lite Support Order
Supreme Court Justice Ellen Gesmer had originally granted the application brought on by an application for Pendente Lite Child Support (temporary child support motion). She ordered Della Salla to pay $5,000 a month in child support. He had complied with this order.
A trial was held and Judge Gesmer awarded Della Salla residential custody of the child during the school year with Rubin having custody on alternate weekends and Thursday nights. Rubin also had legal custody concerning educational and medical decisions. In the summer, the schedule was reversed. Della Salla would have custody on Thursday nights and alternate weekends and Rubin would have custody the rest of the time. All vacations were evenly split.
Della Salla made an application to the court to dismiss Rubin’s claim for child support. He argued if he was the custodial parent he could not be compelled to pay child support. Justice Gesmer denied the motion. Both of the parties appealed. The Appellate Division in the First Department affirmed the custody finding. They found Judge Gesmer was mistaken in granting Della Salla’s application for child support. Since the son spent 56% of his time with his father and 44% of his time with his mother, the father was the de facto custodial parent. The court stated under the CSSA’s (Child Support Standards Act) plain language, “only the non-custodial parent can be directed to pay child support.”
Victory For Father’s Rights
The Appellate court made the right decision. Child support should only be paid by the non-custodial parent to the custodial parent. In this case, the mother sought to punish the father for his success. The purposes of child support is not to subsidize a mother’s life. Child support should only be used to help support the child while he or she is living with the custodial parent. This case is a significant victory for father’s rights.
About Elliot S. Schlissel
