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I went to support court with my ex, who is on welfare, welfare is using the amount they give her, including her other children.

Westfield, NY |
Filed under: Family law Civil rights

Welfare is suing me for support. It is going to trial. I showed Riemersma v Riemersma, magistrate said is was 3rd dept. & didn't apply. He wants to go back to 2010 for my earnings when I thought it was my earnings from date of suit that mattered. I was also on public assistance during from May 2010 until sometime in 2011 but they wouldn't let us explain that.

We tried to explain that our son is no longer on medicaid but on private insurance & I was ignored. We tried to explain that we lived together until May of 2010 & they twisted our words & said that they are going to do a fraud investigation. It was a Mad House.

My ex gave me a ride home & said that she would be willing to take our son off of her case but she doesn't think that they will let her. How can I fight this injustice?

Attorney Answers 1

Posted

Welfare public assistance and child support enforcement issues are highly technical and confusing even for the attorneys' who work in the field. If you are currently low-income you may qualify for assistance through your local federal Legal Services Corporation funded agency. I recommend that you contact that organization for an appointment as soon as possible. In terms of the basics of your case as described you should understand the following:

a. The date that the county/state is seeking support for your children is based on the date that the children began receiving assistance. Also, the fact that you yourself were low-income and receiving welfare assistance does not wipe out your child support obligation. This most likely became a month that you were not able to pay support and for which an arrearage and interest were calculated. Generally medical care costs is also calculated through a separate medical support order. One more thing, your former wife was required to assign her rights to child support as a condition of receiving assistance.

If your son now has private medical coverage, what you are now being held liable for are arrearages (past due) child support including medical support for any month that the child received any welfare cash assistance. Your son can probably not be taken off of his mother's welfare assistance grant if he has any half or full sibings who are also receiving assistance under a welfare rule known as "sibling deeming". This means that any money that is available to support one child, with some exceptions, like SSI, is considered available to other children in the same household.

One final thing: this is not your wife's doing but rather a matter of federal welfare law as administered by the state of New York. You and your wife may need to have separate attorneys especially if you are being threatened with welfare fraud. You also do not want to discuss this matter, given that threat, with anyone who is not an attorney who has been hired or retained to represent you.

Sorry that this is so complicated but welfare rules are not simple and the rules are hard to explain without knowing very specific facts.

This is not a substitute for a consultation with a family law attorney who has a background in the connection between child support and welfare rules.

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8 comments

Asker

Posted

We were never married. I called Social Services the day she moved out of the house. We both explained back in 2010 that we have joint physical custody & joint physical placement & we each gave them a copy of the custody order. I am confused as to why, when according to this: "The Court of Appeals has held that the trial court should not use the proportional offset formula, but rather, determine, for purposes of the CSSA, which parent has physical custody of the child for the majority of the time and then engage in the precisely articulated, three-step method outlined in the CSSA, after which the noncustodial parent must pay its pro rata share of the basic child support obligation unless the court finds that the amount derived would be unjust or inappropriate." I would be considered the custodial parent. I will probably argue in court that it would be like going after a custodial, physical placement parent just because the non-custodial parent went on welfare. This is a weird matter & I wish that they would have addressed it three years ago.

Daphne Lori Macklin

Daphne Lori Macklin

Posted

I get that this is very confusing, so let me restate things again: Now that I know that you and your child's mother were never married, the child support obligation is not what you owe your child's mother but what you are deemed to owe the State of New York. If you and the child's mother separated as of May 2010, then you owe child support, whether you were married or not, as of June 2010, the first month that you and the child's mother were not living together. What is unclear is what type of assistance you were receiving from May 2010 through some time in 2011, per your question. If you had another child not of the relationship with the mother of the child you have been discussing, then you may have still been entitled to welfare assistance but you are not excused from not meeting your child support obligations to the child with the woman you separated from in May 2010. The issue of custodial parent is based on what the agreement was between you and the child's mother as of June 2010. If you did not have a formal court order, then the custody of the child would be with the parent who had the child in his or her care for the majority of the time. I will renew my strong recommendation that you meet with a family law attorney or an advocate who is experienced with child support issues for low-income families receiving assistance. California has a child support ombudsman program. New York may have something similar. One final caution, you need to take the threat of a welfare fraud prosecution very seriously. Good luck with this.

Asker

Posted

Thank you for your reply. When we separated, we both received public assistance. I argued with Social Services because they didn't know how to interpret the custody order. They claimed that they were going to give me cash assistance for our son and keep food & medical benefits for him under my ex's case. I did receive cash for him from 7/10 onward until I was able to secure a job & stop assistance. They are in the wrong. I have contacted social services & I have to submit a letter in writing in order to get a break down of what I had received & will use this as evidence in the upcoming trial. I am researching more case law as well. The threat of welfare fraud doesn't worry me. The judge was just annoyed that I wanted to fight the suit. We can easily prove when my ex moved out, when social service benefits started and that I have been in constant contact with social services regarding changes. I have contacted the social services commissioner's office on the matter.

Asker

Posted

I forgot to mention that specifically, we have a Joint Custody/Joint Placement order where time I spend with our son is 60%-90% of the time & the remainder is her time.

Daphne Lori Macklin

Daphne Lori Macklin

Posted

In light of the information you have just provided, I am going to renew my very strong recommendation that you consult with an attorney in your community with a background in family law about this matter. In my experience welfare agencies tend to dislike joint custody arrangements and tend to penalize the father in these cases. An attorney would be very helpful given the unusual aspects of your case. Good luck with this.

Asker

Posted

Thank you again, for your reply. We have been calling attorneys. Money is tight until I go back to work when the season starts. I feel that they are trying to railroad me. I am looking for information to educate myself for self-defense. I raise my son & we buy him all he needs & told his mom to always communicate if she needs something for him. We got him on our private insurance & contacted social services. They never returned my call. We can prove everything that we can assert. If social services wants to punish me, the father, for having custody, I will go public & seek an attorney for a lawsuit. Judges have judicial immunity but discriminating, anti-father departments of social services do not. We have joint, 50/50 everything except I have my son more than she does; easily proven. She just happens to be on welfare where I as I was able to improve my situation quicker than she has been able. I just can't believe this madness. I have done nothing wrong, have my son with me every chance I can, which is almost constant.

Daphne Lori Macklin

Daphne Lori Macklin

Posted

I recommend that you start with the local LSC-funded legal assistance program as their staff probably are the most familiar with welfare agency rules. After that I would agree that you should seek some of the father-focused family law groups. Your situation isn't uncommon but does take a bit of, well, finesse to figure things out. Usually the problem boils down to a prosecutor or child support attorney who has never seen a case like yours and doesn't understand it. Again good luck and feel free to contact me at my e-mail address: dlmesq2055@gmail.com

Asker

Posted

Thank you so much for your continued replies & support. I will look into what you suggest. I will seek adjournments while I seek legal aid. Thank you for your email address. I thought about paying an attorney to help me formulate a strategy since that would be cheaper than hiring one to go to court. My ex has agreed to modify the custody order to reflect how much time our son is with me & so that we can get him out of the welfare system. I have a court order document from this same support magistrate where he cancelled support for two parents because they each had one child from the marriage living with them & they were receiving assistance. They would have owed each other a minimum of $25 a month which would result in a net of zero. In my case, I received cash for our son while his mom had medicaid & food stamps. I believe that the aforementioned situation would apply until I got a job & was able to cease state benefits. This would leave the 4th quarter of 2011, all of 2012 & the 1st quarter of this year. My next step is proving that I have my son for the majority, prove that I told d.s.s. this on numerous occasions & that they have been less than competent in this situation.

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