IN RE: ANTHONY S. (2020)

Order, Family Court, Bronx County (Leticia M. Ramirez, J.), entered on or about September 4, 2019, which denied respondent mother's objection to the order of a Support Magistrate awarding retroactive child support to petitioner father for one child and awarding petitioner child support and retroactive child support for the other child, unanimously affirmed, without costs.

The parties have been engaged in extensive litigation over child support since 2014.  In the most recent appeal to this Court, in which respondent sought to dismiss the support petitions, we determined that the Family Court providently exercised its discretion in remanding the matter to the Support Magistrate for further proceedings “to determine whether petitioner was a custodial parent or otherwise a proper party to file a support petition on behalf of the child” (Matter of Anthony S. v. Monique T.B., 167 A.D.3d 408, 409, 89 N.Y.S.3d 151 [1st Dept. 2018]).  Upon remand, the Support Magistrate determined that petitioner was a proper party to originate the support proceedings, despite insufficient documentary evidence that the children lived primarily with him and not their paternal grandmother during the relevant period.

Contrary to respondent's contention, the Family Court Act (FCA) does not prohibit a non-custodial parent from commencing a support proceeding (see FCA § 422[a] [“A parent or guardian, of a child, or other person in loco parentis, ․ may file a petition in behalf of a dependent relative”] ).  While respondent is correct that, in a shared custodial arrangement, the custodial parent cannot be required to pay child support as a matter of law (see FCA § 413;  Bast v. Rossoff, 91 N.Y.2d 723, 728, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998];  Rubin v. Della Salla, 107 A.D.3d 60, 67, 964 N.Y.S.2d 41 [1st Dept. 2013]), we find that the unusual facts of this case do not demonstrate a shared custodial arrangement.  Respondent is admittedly the non-custodial parent and has not contributed toward the children's support since the filing of the petitions;  no other party has stepped forward to file a support petition, including the paternal grandmother who respondent claims is acting as the children's primary caretaker;  and no evidence was submitted that either child was emancipated for the purposes of child support at the time the petitions were filed.

Thus, under the circumstances, we find no reason to disturb the Support Magistrate's determination that petitioner was credibly seeking support on behalf of the subject children and their paternal grandmother (see e.g. Matter of Nasir J., 35 A.D.3d 299, 827 N.Y.S.2d 41 [1st Dept. 2006]).  We further note, as we did in the prior appeal, that to accept respondent's argument that the petitions must be dismissed would be to improperly release her from her undisputed support obligations, to the children's detriment (see Anthony S., 167 A.D.3d at 409, 89 N.Y.S.3d 151).

Respondent argues in the alternative that the support petitions should have been dismissed under CPLR 3126 for petitioner's willful failure to comply with discovery orders.  This issue was not determined by the Family Court in the order on appeal and is thus not properly before us.  In any event, we considered and rejected it in the prior appeal (see Anthony S., 167 A.D.3d at 409, 89 N.Y.S.3d 151;  see generally CPLR 5501[a]).