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LAW AND THE FAMILY

Visitation and Child Support: Emerging Rights of Children

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)
January 24, 1995

       CHILDREN'S RIGHTS have always been an important consideration in 
  matrimonial proceedings. Never have they played more of a role than in 
  recent years as the Court of Appeals continues to give children 
  priority above all else. It is a mission that reaches beyond any 
  particular family. Toward that end, the Court of Appeals appears to be 
  ready to reconsider whether visitation and child support are dependent 
  upon one another.
      The Appellate Division, Second Department, in Fernandez v. Arturi*1 
  affirmed a judgment that denied the father's motion for downward 
  modification of child support. It stated: Although the mother's 
  relocation from New York to Florida with the parties' only child 
  wrongly interfered with the father's visitation rights as contained in 
  the parties' separation agreement *** we find that the Family Court 
  properly denied the father's application *** since his current support 
  obligations are significantly below those now required by the Child 
  Support Standards Act ***'' [citations omitted]
      Fernandez squarely places the right of the child to receive minimal 
  support ahead of the parent's right to visit.
      Fernandez, as well as the dicta in Strahl and Weiss, two 1980 Court 
  of Appeals decisions, pose the issues: Are child support and visitation 
  provisions of a matrimonial agreement or judgment still dependent 
  covenants? Does public policy still permit child support or maintenance 
  to be terminated or suspended when the custodial parent deprives the 
  noncustodial parent of his visitation rights? Are the economic needs of 
  the child now the predominant consideration of the court making such a 
  determination?
  
  Duty to Provide Support
  
      Visitation has always been considered to be a right of the 
  noncustodial parent and with that right goes the duty to provide for 
  the support of the child. As recently as 1980 the Court of Appeals 
  defined the extent of that right, in Weiss v. Weiss,*2 stating: 
  Sometimes referred to as a ``natural'' parental right *** this 
  appellation is too narrow. It ignores the primacy of the child's 
  welfare ***. Where the physical and emotional well-being of a child is 
  involved, it is, at best, anomalous that its protection should be 
  dependent on the vindication of the ``rights'' of the parents. 
  Visitation is a joint right of the noncustodial parent and of the child 
  ***. This view does not lose sight of the fact that, while legal 
  custody may be in one or both of the parents, the fact that it is 
  placed in one does not necessarily terminate the role of the other as a 
  psychological guardian and preceptor.
      How valuable the mature guiding hand and love of a second parent 
  may be to a child is taught by life itself. This is surely so when the 
  parent-child relationship is carefully nurtured by regular, frequent 
  and welcomed visitation as here. Therefore, in initially prescribing or 
  approving custodial arrangements, absent exceptional circumstances, 
  such as those in which it would be inimical to the welfare of the child 
  or where a parent in some manner has forfeited his or her right to such 
  access *** appropriate provision for visitation or other access by the 
  noncustodial parent follows almost as a matter of course. [citations 
  omitted]
      The parent's statutory liability for the support of his or her 
  children is limited to children under the age of 21 years by virtue of 
  Domestic Relations Law Sec.240 (1-b) (b) (2) and Family Court Act 
  Sec.413 (1) (b), which define ``Child Support'' to mean ``a sum to be 
  paid *** for care, maintenance and education of any unemancipated child 
  under the age of 21 years.'' 
      The parental duty of child support however, is not absolute. It may 
  be suspended or terminated before the child is 21 if the child becomes 
  emancipated by becoming economically independent of his/her parents 
  through employment, by marriage or entry into the military service. 
  Under unusual circumstances, a child may be deemed constructively 
  emancipated if he/she is guilty of egregious misbehavior, such as makes 
  it inequitable to enforce the support obligation, or if without cause, 
  he/she withdraws from parental control and supervision.*3
  
  Dependent Covenants
  
      For more than 100 years, New York's decisional law construed the 
  visitation and support provisions of a separation agreement to be 
  dependent covenants and permitted a suspension or cancellation of a 
  child support obligation, as well as an alimony obligation, upon a 
  finding of an unjustified denial of visitation rights by the custodial 
  parent.
      Duryea v. Bliven,*4 decided in 1890, is the leading case. In that 
  case, the wife sued to enforce the support provisions of a separation 
  agreement. The husband's defense was that the wife violated the 
  provision of the separation agreement that gave him the right to visit 
  with his children. The Court of Appeals held that the agreement of the 
  wife to permit the husband to visit with his children was a material 
  part of the parties' separation agreement, `` . . . which could not be 
  violated by the wife and a recovery sustained in her favor for her 
  benefit of the sum which he stipulated to pay monthly.''
      Seventy years later, the Court of Appeals distinguished the case of 
  Borax v. Borax.*5 It held that, unlike a visitation provision, a non-
  molestation provision in a separation agreement was an independent 
  covenant and distinguished it from a visitation provision stating: 
  Covenants of this kind are different from those providing for 
  visitation rights for children which are held to be dependent (e.g., 
  Duryea v. Bliven, 122 N.Y. 567; Muth v. Wuest, 76 App. Div. 332). There 
  installments of money are to be paid, at least in part, for the support 
  of the persons whom the defendant has a right to see and visit under 
  the terms of a separation agreement. Thefather's right to see his 
  children is tied into his covenant to provide agreed sums of money for 
  their support. Neither are visitation rights subject to the factors 
  which have led to the independent status of covenants of separation and 
  non-molestation.
      Subsequently it was held that, where the child support and 
  visitation provisions of an agreement survive a judgment of divorce, 
  they remain dependant covenants.
      In Callender v. Callender,*6 the parties' 1962 separation agreement 
  provided the defendant husband should pay $90 each a month for the 
  maintenance and support of the wife and child. The wife was given 
  custody of the child and the right to live anywhere within the State of 
  New York, granting the husband the right of visitation. It was 
  provided, in the event of divorce, that the terms of the agreement 
  should continue and not be merged in any such judgment.
      The husband obtained a bilateral Mexican divorce in 1962. Portions 
  of the separation agreement were incorporated by reference, and it was 
  specifically provided that it was not merged in the judgment. Both 
  parties complied with the terms of the separation agreement until July 
  1964, when plaintiff wife went to Nairobi, Kenya, and took the child 
  with her. She returned to New York in August 1967, at which time 
  defendant resumed payments as agreed, no payments having been made in 
  the interval while plaintiff was abroad.
  
  Breach of Obligation
  
      Plaintiff brought an action to recover the omitted payments. Her 
  first cause of action was to recover for breach of the obligation to 
  make payments as provided in the separation agreement. The second cause 
  was based on defendant's breach of that obligation pursuant to the 
  Mexican divorce judgment. Defendant conceded that the payments were not 
  made and pleaded as an affirmative defense to both causes that the 
  residence of plaintiff outside of the State of New York was in 
  violation of his visitation rights in the separation agreement.
      The Civil Court granted summary judgment that was affirmed by the 
  Appellate Term. The Appellate Division reversed the judgment on the 
  law. It held that the complaint had to be dismissed because the 
  agreement survived the judgment, and the provision for visitation 
  rights and the support provisions were dependent.
      Callender held that the support and visitation provisions of a 
  separation agreement remain dependent after they are incorporated in 
  and survive a judgment of divorce. This rule was extended to include 
  the child support and visitation provisions of a divorce judgment*7 and 
  the alimony and visitation provisions of a divorce judgment*8 and had 
  been consistently followed until recently. For example, in Benjamin B. 
  v. Rifka M.,*9 the child refused to visit with her father and disobeyed 
  a visitation order. The court modified the child support order to 
  provide that no child support would be payable for any week in which 
  there had not been complete compliance with the order of visitation. In 
  Catherine W. v. Edward F.,*10 the court directed that the father's 
  support obligation was dependent on his being afforded visitation 
  finding that where there is . . . noncompliance with the duty of the 
  custodial parent to foster and encourage a positive relationship 
  between the children and noncustodial parent, our law quite properly 
  provides a range of remedies, including change of custody, contempt, 
  suspending child support, or alimony where applicable and making child 
  support dependent upon visitation.
      In Nicolette G. v. Ray S.,*11 the court interviewed two children, 
  ages 11 and 15, who adamantly and willfully refused to agree to 
  cooperate in visiting with their father. Under these circumstances the 
  court refused to enforce a support order of the Supreme Court.
      DRL Sec.241 was enacted in 1978 to codify the law in situations 
  when court ordered visitation is denied by the custodial parent. The 
  last sentence was added effective Aug. 5, 1986. DRL Sec.241 now 
  provides: When it appears to the satisfaction of the Court that a 
  custodial parent receiving alimony or maintenance pursuant to an order, 
  judgment or decree of a court of competent jurisdiction has wrongfully 
  interfered with or withheld visitation rights provided by such order, 
  judgment or decree, the court, in its discretion, may suspend such 
  payments or cancel any arrears that have accrued during the time that 
  visitation rights have been or are being interfered with or withheld. 
  Nothing in this section shall constitute a defense in any court to an 
  application to enforce payment of child support or grounds for the 
  cancellation of arrears for child support.
      Although the Legislature did not include any reference to child 
  support in DRL Sec.241, the statute has not been construed to change 
  prior decisional law, since it appears that the Legislature may not 
  have been aware of the existing case law, and the Assembly sponsor of 
  the bill stated, in a letter to the Governor's counsel, that the new 
  section is, in effect, a codification of case law citing that dealt 
  with the cancellation of child support arrears and the suspension of 
  current child support.*12
  
  Relief From Support
  
      Thus, in Rosemary N. v. George B.,*13 the court held that were the 
  child unjustifiably refused visitation with her noncustodial parent, 
  the father was relieved from his support obligation for his daughter. 
  In Welsh v. Lawlor,*14 the court affirmed an order of the Family Court 
  of Albany County (Cheeseman, J.), entered Oct. 28, 1987, which granted 
  petitioner's application, in a proceeding pursuant to DRL Sec.241, to 
  suspend petitioner's obligation to pay child support and 
  maintenance.*15 In Joseph A. v. Andrea A.,*16 the court held that a 
  child's unjustifiable refusal to allow his father to visit or call him 
  was a sufficient basis upon which to suspend the father's obligation to 
  pay child support.
      In Celeste S. v. Jeremiah R.,*17 the court suspended child support 
  stating that suspension of future child support payments by the 
  noncustodial parent is only granted when the court determines that the 
  custodial parent has severely frustrated visitation either by 
  relocating the family to a distant location without permission or by 
  intentionally alienating and brainwashing the children against the 
  noncustodial parent.
      Two 1980 decisions of the Court of Appeals seem to hint that 
  changes in public policy regarding children may be on the Court's 
  agenda by placing it ahead of their parents' rights. Fernandez v. 
  Arturi and decisions like it place the right of the child to receive 
  adequate support ahead of the parents' right to visitation.
      In Strahl v. Strahl*18 the mother moved to modify the parties' 
  divorce judgment by deleting the requirement that she reside with the 
  parties' three children within a 50-mile radius of New York City, to 
  enable her to relocate with the children to Florida. The plaintiff 
  father cross-moved for sole custody of the children, or, in the 
  alternative, for an order conditioning the mother's right to custody on 
  her continued residency with the children within the 50-mile radius. 
  The parties' separation agreement, which was incorporated but not 
  merged in the judgment of divorce, provided that although the children 
  would reside with the mother, the parents would have joint custody.
      The Appellate Division modified the order of the Supreme Court by 
  denying defendant's motion, holding, in an opinion by Justice Titone, 
  that there was no evidence that the move to Florida would be any more 
  beneficial to the children than their remaining in New York. It held 
  that a parent may not be deprived of his or her right to reasonable and 
  meaningful access to the children of the marriage unless exceptional 
  circumstances have been presented to the court.
      The Appellate Division directed that should defendant fail to abide 
  with said directives, the husband ``shall be relieved of his obligation 
  to pay child support until such time as defendant returns to New York 
  and resumes her residence with the children.'' The Court of Appeals*19 
  affirmed the order of the Appellate Division for the reasons stated in 
  the opinion by Justice Titone. Significantly it stated: We note, 
  however, that our holding in this case should not be construed to 
  represent tacit approval of that aspect of the Appellate Division's 
  decision which suggested that an individual's obligation to support his 
  or her children pursuant to a divorce decree may be modified by 
  conditioning it upon the custodial parent's compliance with a court 
  order or agreement regulating visitation privileges (cf. Borax v. 
  Borax, 4 NY2d 113). Although we find no ground for reversal in this 
  case, we prefer to leave open the question whether such a modification, 
  under different circumstances might constitute an abuse of discretion.
      In Weiss v. Weiss, decided later that year, the Court of Appeals 
  again alluded to this issue (in footnote 3) stating: Because the order 
  of the Appellate Division did not incorporate any provision based on so 
  much of its opinion as dealt with the relationship of support payments 
  to adherence to a residential removal proscription, we have no occasion 
  to deal with that question (see Strahl v. Strahl, 49 NY2d 1036, 1038, 
  supra).
      In Brescia v. Fitts,*20 decided three years later, the Court of 
  Appeals held that children have the right to receive adequate support, 
  and are not bound by the terms of a separation agreement. In light of 
  this enunciation of public policy, can visitation and support remain 
  dependent covenants?
  
  
  notes
  
      (1) ---- AD2d ---- , 618 NYS2d 79 (2d Dept., 1994)
      (2) Weiss v. Weiss 52 NY2d 170, 436 NYS2d 852.
      (3) See Roe v. Doe, 29 NY2d 188, 324 NYS2d 71; Parker v. Stage, 43 
  NY2d 128, 400 NYS2d 794; Alice C. v. Bernard G.C. 193 AD2d 97, 602 
  NYS2d 623.
      (4) 122 NY 567, 25 NE 980; See also Muth v. Weuest, 76 App. Div. 
  332.
      (5) 4 NY2d 113, 172 NYS2d 805(1958).
      (6) 37 AD2d 360, 325 NYS2d 420 (1st Dept. 1971).
      (7) Feuer v. Feuer, 50 AD2d 772, 376 NYS2d 546 (1st Dept., 1975).
      (8) Abraham v. Abraham, 28 AD2d 864, NYS2d (2d Dept., 1967).
      (9) 90 Misc 2d 850 (Family Court, Queens Co., 1977).
      (10) 116 Misc 2d 377 (Family Court, Suffolk Co., 1982).
      (11) 90 Misc 2d 848 (Family Court, Queens, Co., 1971).
      (12) See Hudson v. Husdon (1978) 97 Misc2d 558, 412 NYS2d 242.
      (13) 103 Misc2d 1036 (Family Court, Dutchess Co., 1980).
      (14) 144 AD2d 226 534 NYS2d 539.
      (15) See also Alexander v. Alexander 129 AD2d 882, 514 NYS2d 548.
      (16) New York Law Journal, Aug. 5, 1991, p.28, col 5 (Family Court, 
  Rockland Co.)
      (17) NYLJ, Oct. 7, 1991, p.32, col. 1, (Family Court, Queens Co.).
      (18) 66 AD2d 571, 414 NYS2d 184 (2d Dept., 1979).
      (19) Strahl v. Strahl, 49 NY2d 1036, 429 NYS2d 635 (1980).
      (20) (1982) 56 NY2d 132, 451 NYS2d 68.
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Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) Mr. Brandes and Ms. Weidman coauthor the 
annual supplements.
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