LIVINGSTON COUNTY DEPARTMENT OF SOCIAL SERVICES CULHANE v. KARLSONS (1998)

Petitioner commenced the instant proceeding seeking an order directing respondent to pay child support for part of the period in which respondent's son was voluntarily placed in foster care (see, Family Ct. Act § 234[b];  §§ 415, 445[a];  Social Services Law § 101[1];  § 102;  Matter of Harvey-Cook v. Neill, 118 A.D.2d 109, 111-112, 504 N.Y.S.2d 434;  Rockland County Dept. of Social Servs. v. Brust, 102 Misc.2d 411, 413, 423 N.Y.S.2d 435).   Following a hearing, the Hearing Examiner calculated respondent's support obligation in accordance with the Child Support Standards Act (CSSA) (see, Family Ct. Act § 413).   Family Court denied respondent's objections and affirmed the Hearing Examiner's order.

 Respondent contends that her child support obligation was improperly calculated pursuant to the CSSA rather than section 415 of the Family Court Act.   We agree.   Both the CSSA (see, Family Ct. Act § 413[1][a] ) and Family Court Act § 415 set forth the statutory obligation of parents to support their minor children.   Under the circumstances presented by the instant proceeding, however, section 415 rather than the CSSA applies (see, Matter of Parker v. Stage, 43 N.Y.2d 128, 133-134, 400 N.Y.S.2d 794, 371 N.E.2d 513;  Matter of Hanley v. Smith, 99 Misc.2d 418, 420, 416 N.Y.S.2d 488).  Section 415 affords the court broader discretion to fashion an appropriate support order in view of all the circumstances (see, Family Ct. Act § 445[a];  Matter of Hanley v. Smith, supra, at 420, 416 N.Y.S.2d 488) than does the CSSA (see, Family Ct. Act § 413[1][d], [f] ).  Thus, the erroneous determination that the court's discretion was constrained by the more exacting standards of the CSSA warrants reversal.

 We further agree with the contention that the Hearing Examiner erred in directing respondent to pay over a percentage of the child support payment she received from the child's father.   To establish its entitlement to a portion of the father's separate obligation, petitioner should have sought either a modification of the prior order (see, Family Ct. Act § 451) or a de novo determination of that obligation pursuant to Family Court Act § 415 (see, Matter of Stone v. Schlegal, 132 Misc.2d 808, 810, 505 N.Y.S.2d 549).

We therefore remit the matter to Livingston County Family Court for a determination of respondent's child support obligation, if any, in accordance with Family Court Act § 415.

Order unanimously reversed on the law without costs and matter remitted to Livingston County Family Court for further proceedings.

MEMORANDUM: