Support magistrates or Family Court judges, or Supreme Court judges deciding custody issues within divorce proceedings, have no authority to deviate from that statute.
By Family Court Act Article 4, a parent who earns an income below the so-called "self-support reserve", which is 135% of the federal poverty level for that year, can only be charged $25.00 a month in child support.
Federal poverty guideline for the year 2015 can be found here.
New York cannot charge parents in support proceedings more than $25.00 if the court has proof that parent's income does not exceed the federal poverty level multiplied by 1.35 (135%).
What New York support courts can deem as "income" for purposes of child support proceedings is defined by Family Court Act Section 413 subsection 5:
The "imputation" of income is within the "discretion" of the court and is not accompanied by any guidelines as to what is the procedure of "imputation", what factors should be considered.
The "imputation" section of the Family Court Act is unconstitutional because of its "including, but not limited to" section.
When a court is given the power to make orders that invoke the state's police power and may put a person in jail, that power should be strictly defined, with a notice to the public as to what the court MAY and what it MAY NOT do.
The "including, but not limited" part of the statute, coupled with the "discretion" statute provides parents no notice whatsoever as to what can be "imputed" as income upon them, which, to me, is a constitutional violation.
Moreover, imputing income based on past earnings and projected POSSIBLE future earnings of an unemployed parent is nothing other than conjecture, and, in my legal opinion, does not pass constitutional muster.
No matter what was the parent's income level in the past, the parent may not be able to earn the same income at present, and it is the present income of the parent that the court should be considering, not the court's own speculations.
Since courts usually do such imputations and conjectures without any evidence as to the state of the economy or the parent's current employment opportunities based on parent's background, educational and skill level, age, command of the English level, disability or other factors, the statute is, in my opinion, unconstitutionally vague and allows arbitrary enforcement, making the statute vulnerable to a constitutional challenge through a civil rights lawsuit.
Chances of overturning imputations of income on appeal are, frankly, not good because imputations are, by statute, within the "discretion" of the court, are reviewable on appeal only for "abuse of discretion", and appellate courts in New York are well known for rubber-stamping any discretionary act of the lower courts and refusing to interfere.
That is not to say that appeals should not be filed and are futile, they are just hard to win, but abuse of discretion can nevertheless be won based on factual circumstances of the case.
I know of two cases personally where income was imputed. In both cases income was imputed of over $20,000.00 a year (above self-support reserve), without any evidence or analysis about the economy in the area where the parent lives or employment opportunities for that particular parent, with his or her background, command of the English language, age and educational and skill level.
I provide here a link to several other "imputation" cases described, where NYS Appellate Division 2nd Department found a "discretion" of the trial court to impute income in child support proceedings.
One issue of abuse of discretion that can be proven on PROCEDURAL grounds and as a matter of COLLATERAL ESTOPPEL is imputation of income upon parents who are adjudicated as indigent, as evidenced by assigning counsel to them in other court proceedings.
When counsel is assigned by order of the court, based on evidence of indigence provided by parent to the court, such an order may be used to show abuse of discretion by the court in imputation of income despite such assignment order AS A MATTER OF LAW.
A judge may not deem the same person indigent for one purpose and not indigent for another. That is the ultimate abuse of discretion - and show of bias, in my legal opinion.
In a recent case, Judge Phillip Rumsey of Cortland County Supreme Court, assigned to a Chenango County Supreme Court case, assigned counsel to custody proceedings of the parent and at the same time imputed income of $20,000 to the parent. Those were two mutually exclusive orders and, I believe, in this case imputation can be addressed as abuse of discretion and a show of bias on appeal.
Moreover, imputation of income to indigent parents in upstate New York, with its slow (if not dead) economy and scarcity of jobs is one other example of abuse of discretion by trial courts.
Rural New York, and I am speaking from experience, is currently a dead zone, and has been like that since around 2008, when many towns in upstate New York look like ghost towns, and jobs are available only in the local government (which are controlled by local family clans).
In 2008 an Orange County Family Court judge imputed income to an indigent parent that I know of based on the fact that she had a barber license and a "barber shop".
A barber in the rural town where the parent lived could not come close to earning $20,000. That did not concern the Orange County Family Court judge one bit. She put the parent in jail for "contempt of court" - which requires two elements to be satisfied by clear and convincing evidence:
(1) that the order of child support "disobeyed" by the parent is lawful - it was not because it was contrary to statutory requirements of the Family Court Act that does not allow "imputation" of income upon indigent parents and does not allow to charge an indigent parent more than $25 per month in child support;
(2) that the judge, sitting in a civil contempt proceeding, must first ascertain whether the parent ACTUALLY has the money in arrears that is allegedly owed. If the parent does not ACTUALLY (not imputedly) have such money, the parent may not be put in jail, becuase jurisdictionally Family Court does not have authority over criminal contempt proceedings, only over civil contempt proceedings where the "contemnor" (parent in contempt of court) must "hold the keys to his/her jail cell", meaning the parent in question must have the ACTUAL ABILITY, his/her own, not his/her relatives and friends', to pay the money owed to get out of jail.
None of that means anything to judges of New York State Family Court.
I will list judges who held an indigent parent in contempt of court and ordered her to pay despite her statements that she has no income and no ability to do so, and despite incontrovertible evidence, a court order of foreclosure, showing that the "barber shop" upon which the imputation was based, is no longer in existence, the house foreclosed on and the barber equipment taken during eviction proceedings.
That did not perturb the courts one bit and did not sway them in determination that imputation of support based on judge's conjecture that the indigent parent MUST earn $20,000 a year out of a now non-existent barber shop, must continue.
Here is the list of "winners":
- Orange County Family Court
- Appellate Division 2nd Judicial Department that affirmed the Orange County Family Court's ruling
- Judge Richard Brown, support magistrate for Delaware County Family Court
- Carl F. Becker, no longer a judge, retired, Delaware County Family Court judge at the time of the ruling
- Judge Susan Kushner of Albany County Family Court
- Judge Richard Rivera, at that time Albany County Family Court support magistrate, now an Albany County Family Court judge
- Dennis Duggan, no longer a judge, at the time of ruling Albany County Family Court judge