Matter of Commissioner of Social Services, on behalf of Marc King v Desiree Mwalimu
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Attorneys and Parties
Brief Summary
Child support and public assistance. The case addressed whether, in a shared-custody child support proceeding brought under Family Court Act § 422(a) [permits a social services official to commence a proceeding for the support of a child when public assistance is provided for that child], a court may refuse to impute income to a parent solely because that parent receives public assistance.
The Support Magistrate imputed income to the mother, declined to impute income to the father because he was receiving public assistance, treated the mother as the noncustodial parent for most of the relevant period, and ordered her to pay $26,980.99 in retroactive child support. The Family Court denied the mother's objections.
The Appellate Division reversed the Family Court's September 7, 2024 order, granted the mother's objections, vacated the July 16, 2024 support order, and denied the petition.
The appellate court held that the Support Magistrate erred by concluding that income could not be imputed to the father merely because he was on public assistance. Based on the father's prior full-time earnings, part-time work during the relevant period, and the lack of proof explaining his job loss, his efforts to obtain full-time work, or any barrier to similar employment, income should have been imputed to him. Once that was done, the father—not the mother—was the higher-income parent and therefore the noncustodial parent for child support purposes in the equal-custody arrangement.
Background
In 2019, the Commissioner of Social Services commenced a Family Court Act article 4 proceeding on behalf of the father, Marc King, seeking support from the mother, Desiree Mwalimu, for two children. The father received public assistance for the children from 2019 through 2023. The Support Magistrate found that the parents shared custody equally during the relevant period, except for a period when one child lived exclusively with the mother. The magistrate imputed income to the mother but not to the father.
Lower Court Decision
The Support Magistrate ordered the mother to pay $26,980.99 in retroactive child support for the period during which the father received public assistance. The ruling was based on the conclusion that the mother was the noncustodial parent for most of the relevant time because, after imputing income only to her, she was treated as the higher-income parent under the Child Support Standards Act (CSSA). The Family Court later denied the mother's objections.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the July 16, 2024 order as superseded by the September 7, 2024 order, but reversed the September 7, 2024 order on the law. It held that the father was not exempt from income imputation simply because he received public assistance. The record showed prior full-time employment in 2018 and part-time work during the relevant period, while the petitioner failed to show why the father lost his job, what efforts he made to obtain comparable work, or that he was unable to do so. Because the father's 2018 income far exceeded the mother's actual and imputed income, he should have been deemed the noncustodial parent, and the mother should not have been ordered to pay retroactive support.
Legal Significance
The decision reinforces that child support turns on earning ability, not just current income status. Under the Child Support Standards Act (CSSA) and Family Court Act § 413(1)(f)(10) [requires the court to direct the noncustodial parent to pay his or her pro rata share of the basic child support obligation unless that amount would be unjust or inappropriate], courts may impute income based on employment history and earning capacity. A parent's receipt of public assistance does not, by itself, bar imputation of income. The case also confirms that in equal shared-custody situations, the higher-income parent is generally treated as the noncustodial parent for support purposes.
A parent on public assistance can still have income imputed for child support purposes. Where parents share custody equally, the court must realistically assess both parents' earning capacity, and the higher-income parent may be treated as the noncustodial parent even if that parent is receiving public benefits.