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Question regarding a Non-custodial parent's child support obligation if the non-custodial parent is pregnant.

Ilion, NY |

I am a father of three children, two with an ex-girlfriend and one with my current wife. I have custody of the two older children. My ex-girlfriend pays $100.00 per week in child support. She has recently filed a petition to decrease support payments as she is pregnant and has been taken out of work due to complications with her pregnancy. Will she be required to pay the accumulated arrears from the time she was not working? We did have an initial court date in June where the judge told her that she was aware of the support order when she became pregnant and she must prove with a letter from her doctor why she was removed from work due to pregnancy complications. Thank you for your help.

Attorney Answers 3

Posted

The law looks at which child(ren) had the support obligation reduced to a legal agreement or court order of suppot first, and that child then has priority over any later or prior born children who did not get such recognition. In other words, if a court ordered support for the first two children, the birth of the third to the payor parent does he no good in reducting her obligation to the first two children. Distinct from that is the loss of her job, which if occuring through no fault of her own, does reduce the amount of child support as a legitimate reduction of her income and the application of the 25% on a small sum will result in a smaller amount of support.

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Posted

Thank you very much for the insight, this is where I believe it gets confusing. I believe that determining if she lost her job through no fault of her own is what must be determined. Would it not be fair to say that she chose to have this child and knew when she became pregnant that she would be taken out of work at some point; therefore I belive it would be safe to say she knew about this order prior to getting pregnant. Since the needs of her older two children do not stop and she still has a job with a return to work date how could she not be responsible for the arrears of the current order? My wife and I had a child five years ago, at the time my wife was out of work we did not just stop paying for food, clothing, housing ect..... for the other two just because we chose to have a child of our own. It just doesn't seem that a case like this could even be comparable to a male loosing his job or being taken out of work due to say an injury through no fault of his own. I believe the laws are biased becuase usually it is the father paying child support and a man can't get pregnant.

Marco Caviglia

Marco Caviglia

Posted

It will be hard to prove that the main reason she bore a child was to beat you out of child support.

Posted

I'm a bit confused by the timing here, but if she is granted a reduction in her support obligation, it will be retroactive to the dare of her filing of that petition. However, any arrears which accumulated up to the date of petition filing will still be owed to you. Is that what you were asking?

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Posted

I am wondering if it will hold up in court for her to be granted a reduction at all as she was aware of having to support the two older children prior to becoming pregnant.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

I would say probably not. You said she was laid off because of "complications of pregnancy" which probably weren't foreseeable. And I'm not aware of any doctrine which puts forth the proposition that a parent paying support can't have more children because that might potentially affect their income stream that goes towards supporting their existing, non-custodial children. You can argue this in a support hearing, or your attorney can attempt to find some case law that supports this, but I think it would be a hard sell to a support magistrate. People still become pregnant "unintentionally" and have unplanned children. We aren't China with a "one child policy" and I can't see a court ordering someone to get an abortion or punishing them because they can't work while they're having another child. It's not like voluntarily quitting your job and then still having to pay support at the level of your formal earning potential as sometimes happens.

Posted

She'll owe every penny on her order of support. If she wins her downward modification, she'll owe less.

Good luck.

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