Does a potentially high-earning but unemployed parent have to search for employment out of the area to meet child support obligations? What if accepting such employment results in diminished visitation?
Although an unemployed parent with support obligations must clearly make a diligent job search in the Rochester area, the Monroe County Supreme Court also considered the unique issue of what obligation a support modification plaintiff has to make in an out of area job search, Szalapski v. Schwartz n/k/a Szalapski, index no. 2003/8830.
The court ruled that a potentially high earning plaintiff such as Szalapski, who is seeking modification, should be required to examine the prospects of employment in another area before the court substantially reduces his child support obligation.
“New York law is strangely silent on this issue and, based on this court’s research, the question of the ‘radius of a reasonable job search’ has been seldom analyzed in the Empire State,” Justice Richard A. Dollinger wrote in the decision. “In essence, the husband [plaintiff] must prove that the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.”
The court suggested that a high paying job (in excess of $100,000) in a nearby city such as New York, Boston, Cleveland or Washington, D.C., may be able to accommodate a visitation schedule that requires a short airplane flight.
“The paramount importance of maintaining the child’s standard of living is what drives the need for a diligent job search when an obligated parent loses their employment,” Justice Dollinger wrote.
“In this court’s view then, the scope of the job search should extend beyond the convenience of either parent, and reach to a point where the benefit of employment in a new more distant location outweighs the consequence s of distance on the relationship between the parent and child,” the justice continued.
“He did an excellent job in recognizing the tension between a parent’s need to look for a job outside of the area and a parent’s visitation schedule that he doesn’t want to change,” said defendant’s attorney Alexander Korotkin. “Obviously, the court looked out for the child’s best interest. We have guidelines for determining what ultimately, someone needs to do (to meet child support obligation) and each case turns on its own facts.”
Korotkin said the Szalapski case is unique because of the potential amount of money the plaintiff in this case, a physicist with a doctorate, could make if he looked somewhere else.
“Whether or not he’s done enough is for the court to decide,” Korotkin said, who also searched in vain for guiding decisions on the issue.
The court noted the burden of proof rests with the plaintiff seeking modification to prove “diligent search for employment” and ordered a hearing on the adequacy of his job search in Rochester that would still allow for regular visitation.
“I think that the judge did a brilliant job of analyzing the case but at the same time, I think he’s wrong,” said plaintiff’s attorney Stephen M. Jacobstein.
Jacobstein said that although his client worked diligently to find another job after an involuntary layoff, he’s been unable to find the kind of work that allows him to meet his child support obligation and it costs too much money for him to search for jobs out of the area.
Both attorneys noted the unique factors of the case such as the plaintiff’s non-traditional occupation as a physicist.
“I can see a law professor analyzing it this way but there is a practical side that outweighs the analysis,” Jacobstein said. “If he found a job at IBM in Poughkeepsie, that’d change things but he still wouldn’t have meaningful contact with his son and he’d be paying more child support.”
In the meantime, the plaintiff pays what support he can pay as an adjunct college professor and tutor while the balance is in arrears and subject to child support enforcement. Jacobstein said his client has decided to change careers and obtain a high school teaching certificate and will not appeal the decision due to financial limitations.