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CS Versus Visitation? Court rules on how far job search must go

Posted by on Mar. 21, 2014 at 12:37 AM
  • 34 Replies

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.



Read more: http://nydailyrecord.com/blog/2011/04/26/court-rules-on-how-far-job-search-must-go/#ixzz2wZKV8512

by on Mar. 21, 2014 at 12:37 AM
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Replies (1-10):
annabl1970
by Gold Member on Mar. 21, 2014 at 12:42 AM

This is tough one

 

KWIM
by Bronze Member on Mar. 21, 2014 at 6:59 AM
2 moms liked this
I think it would depend on how involved the parent is in the child's life. If the current situation is close to or at 50/50 then no...it would cause a great upset in the child's life and they would not be able to be that close to the departing parent. Also, if it is at 50/50 and the child is adequately supported and their needs are met in both houses (also putting responsibility on Mom to support her child in her own home), no need to force a parent to hit the Oregon trail to find work.

My other thought is the "would the court still force the extended area job search if the gender of the parent in the case was female?" If the answer is no, then it should be no for a father as well.
HopesNDreams
by Silver Member on Mar. 21, 2014 at 7:10 AM
1 mom liked this
I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
KWIM
by Bronze Member on Mar. 21, 2014 at 7:38 AM
1 mom liked this
All very true. It also needs to be considered that there is no amount of money that will replace the lost time with your child if you are forced by the courts to move away.

Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
annabl1970
by Gold Member on Mar. 21, 2014 at 7:48 AM
I read the entire court decision
He has limited contact with his two older kids, but he has close relationship with younger one.
Judge said that in this type of cases, mother's ability to make income should be calculated too, but I don't remember now, what was the reason it wasn't look at.

Quoting KWIM: I think it would depend on how involved the parent is in the child's life. If the current situation is close to or at 50/50 then no...it would cause a great upset in the child's life and they would not be able to be that close to the departing parent. Also, if it is at 50/50 and the child is adequately supported and their needs are met in both houses (also putting responsibility on Mom to support her child in her own home), no need to force a parent to hit the Oregon trail to find work.

My other thought is the "would the court still force the extended area job search if the gender of the parent in the case was female?" If the answer is no, then it should be no for a father as well.
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annabl1970
by Gold Member on Mar. 21, 2014 at 7:53 AM
Yes
Agree
Even though in this situation. He already has limited contact with his older kids, but he is close to third son
In his circumstances, I would be afraid to move too, he can easily lose close bond with younger son, and totally lose any chance to improve his relationship with older kids.



Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
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HopesNDreams
by Silver Member on Mar. 21, 2014 at 8:47 AM
No amount of time with his kids will prevent the mother losing her house because he isn't paying support either! An extreme example, of course. It does eventually come down to a refusal to look for work when you are in a specialty field and not expanding your search.

The other option, if the relationship is good, is discussing it with the OP and BOTH families relocating to the new job's site.


Quoting KWIM: All very true. It also needs to be considered that there is no amount of money that will replace the lost time with your child if you are forced by the courts to move away.

Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
HopesNDreams
by Silver Member on Mar. 21, 2014 at 8:49 AM
What would his option be? Unemployment until his youngest is 18?

Quoting annabl1970: Yes
Agree
Even though in this situation. He already has limited contact with his older kids, but he is close to third son
In his circumstances, I would be afraid to move too, he can easily lose close bond with younger son, and totally lose any chance to improve his relationship with older kids.



Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
KWIM
by Bronze Member on Mar. 21, 2014 at 9:34 AM
2 moms liked this
Or...the mother can prevent the mother from losing her house. It seems as though she is employed as well.

In times of economic strife, in tact families lose their homes all the time or have to downgrade while things are bad. She should be just as responsible for her own home as he is for his.

If the father is genuinely making every attempt to find work ( while maintaining 2 avenues of interim employment, mind you) he should not be forced to compromise his relationship with his children to accommodate the entire situation financially. The mother should share in that responsibility.

The whole family (even while split) should have to adjust to their current economic reality.

Quoting HopesNDreams: No amount of time with his kids will prevent the mother losing her house because he isn't paying support either! An extreme example, of course. It does eventually come down to a refusal to look for work when you are in a specialty field and not expanding your search.

The other option, if the relationship is good, is discussing it with the OP and BOTH families relocating to the new job's site.


Quoting KWIM: All very true. It also needs to be considered that there is no amount of money that will replace the lost time with your child if you are forced by the courts to move away.

Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
annabl1970
by Gold Member on Mar. 21, 2014 at 10:01 AM
No his option is to take another job, get to school and mother could agree to temporary CS reduction.
Anyway his petition was denied, there should be hearing held to address how diligent was his job search, mother also didn't get her attorney fees.
I didn't see anywhere judge took dad's attempt to reduce his CS obligation as frivolous, he (the judge) didn't have a law, case, anything to assets how far the job search can stretch in this kind of situation

Quoting HopesNDreams: What would his option be? Unemployment until his youngest is 18?

Quoting annabl1970: Yes
Agree
Even though in this situation. He already has limited contact with his older kids, but he is close to third son
In his circumstances, I would be afraid to move too, he can easily lose close bond with younger son, and totally lose any chance to improve his relationship with older kids.



Quoting HopesNDreams: I think time can play a factor too. If the parent has been unemployed for a month, perhaps it isn't necessary to expand the radius. However, after six months or a year, clearly it is time to look further. Also consider the fact that , with a higher income, comes a greater opportunity for frequent long distant visits. It is less of a hardship for a six figure income to pay for several plane tickets than it would be for a lower income. There is also the option of the children staying where they are and the out if town parent commuting for visits. Again, a higher income creates different opportunities.
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