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Child SupportOut-Of -State Support Orders Cannot Be Modified in New York

February 18, 2008

In this day and age in which parties obtain an order regarding child support in one state and then move to another jurisdiction, it is important to know that the original support order cannot be modified or even extended by a court in the second state, so said the New York Court of Appeals in the case Spencer v. Spencer.

As reported in the Times Union, the Spencers divorced in Connecticut in 1994. That same year, Mrs. Spencer and the parties’ three children moved to Albany County. The father remained in Connecticut.

At the time of the divorce, a Connecticut court ordered James Spencer to pay $250 a week for each child and to provide medical insurance. The payments were to continue until each child turned 18, when child support terminates in Connecticut.

Spencer’s oldest son turned 18 in 2004, ending his father’s obligation under the Connecticut order. But Susan Spencer filed a petition in Albany County in June 2005, seeking to continue payments until their son turned 21, that being “consistent with the laws of the state of New York.”

The Court of Appeals declined to modify the Connecticut order or to extend Mr. Spencer’s obligation to pay support.

Under the Full Faith and Credit for Child Support Orders Act (FFCCSOS) and the Uniform Interstate Family Support Act (UIFSA), “the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state [28 USC §1738B(d) and Family Court Act §580-205]

Because the respondent continued to reside in Connecticut, the state which issued the original child support order, Connecticut retained continuing and exclusive jurisdiction, even though support for the eldest son terminated upon his reaching 18 years of age. Thus, any change to the respondent’s obligations imposed by New York would constitute an impermissible exercise of jurisdiction modifying the Connecticut order, a clear violation of FFCCSOS and UIFSA.

It would have been impermissible for a New York court to extend the support order for three years (from age 18, when the Connecticut order expired, until age 21, when child support terminates in New York).

A modification is “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father’s obligation for three years). Undoubtedly, the New York order was “made subsequent” to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a “modification” of Connecticut’s order.

This decision seems to make a whole lot of sense. If a party was able to modify an existing order merely by relocating, no child support order would be final. There would be nothing to prevent a party to litigate in one state and then move to another with a more favorable law. This decision clearly prevents that from

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