Home / Expert Opinion / Matrimonial Matters: Fourth Dept. rules on support, visitation issues

Matrimonial Matters: Fourth Dept. rules on support, visitation issues

Sara Stout Ashcraft

In the Appellate Division, Fourth Department’s 2012 year-end decisions, the court addressed issues of child support, spousal support and an unusual “visitation” issue. The child support cases center on the determination of “willfulness” in the violation of child support orders. The visitation case involves access accorded an incarcerated father.

Child support

Bushnell v. Bushnell, 1351 CAF 11-00001

Barksdale v. Gore, 1352 CAF 11-02134

Kasprowicz v. Osgood, CAF 12-00155

In these cases, the respondent father appealed from a Family Court order finding that he had willfully violated the prior child support order. The appellate court’s holding in all three cases affirmed the “willfulness” decision of the lower courts. In analyzing the issue, the Fourth Department pointed out that the pertinent issues center around a legal presumption and the burden of proof: The legal presumption is that a party has “sufficient means to support” the minor children and that failure to pay support as ordered “constitutes prima facie evidence of a willful violation,” (FCA § 437).

Thus, the respondent then has the burden of proof to present, “some competent, credible evidence of his inability to make the required payments.” In all three of these cases, the trial court found that the respondent father had failed to produce, “evidence establishing that he had made reasonable efforts to obtain gainful employment” so as to meet his child support obligations. In Bushnell, the court also noted that “the respondent did not sell his assets to enable him to make support payments.”

In 2010, the New York Legislature changed the child support law to provide that a modification in child support is available if “there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted,” [FCA § 440(4)(iii), DRL § 236B(9)(2)(ii)(b)].

At that time there was some concern among family lawyers that the standard used by the courts for a downward modification based on loss of income through unemployment might be relaxed. However, judging from these and other cases the concern appears unwarranted, and evidence of “reasonable efforts to obtain gainful employment” appears to still be strictly construed.


In Ragin v. Dorsey (CAF 12-00010) the incarcerated petitioner father appealed the trial court’s dismissal of his petitions seeking modification of a prior order regarding contact with his child. The petitioner had previously agreed to a consent order limiting him to mail correspondence only with his child.

The basis of the petitioner’s application for modification was a “change in circumstances warranting a reexamination of the issues of visitation because he had been transferred from one correction facility to another that was closer to the child.”

The Fourth Department affirmed the Family Court’s dismissal of the petition, stating, “Where an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances — since the time of the stipulation — has been established and then only where a modification would be in the best interests of the child.” The appellate court held that even if the petitioner’s allegations that he had been transferred to a correctional facility closer to the child were true, he had “not set forth a change in circumstances which would warrant the relief sought.”

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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