In the most recent Matter of Lee case, the New York County Surrogate Court filed a motion for a summary declaration that the deceased’s father was disqualified as a beneficiary and beneficiary of the deceased under EPTL 4-1.4 (a) (1) (Mache of Estate) has not endorsed by Lee | NYLJ, April 2, 2021, p. 22, column 3 [Sur Ct, NY County 2021])

The court established the tragic facts. The deceased died at the age of 14 and survived from his divorced parents. The deceased’s mother, who was the custodial parent and administrator of the estate, applied for the father to be disqualified and requested a summary judgment.

EPTL 4-1.4 (a) (1) provides for two different reasons for disqualification. A parent will be denied redistribution if he or she (1) does not support the child or (2) leaves the child while the child is under the age of 21, “unless the parental relationship and duties are subsequently restored taken up and existed until death ”. of the child ”(id.).

The problem in Lee was not being abandoned, but not being supported. In particular, a parent’s ability to pay child support is essential in calculating the exclusion for this reason under the law.

The surrogate mother’s decision was based on the 2008 family court ruling on the defendant’s support obligations after a hearing at which the defendant and defendant were able to submit evidence and testify. The same judgment of the family court found that the defendant deliberately refused to pay child support and forbade any weakening of his maintenance obligations. Movant revealed that the defendant had a total of $ 74,294.49 in child support and had paid only $ 3,955 in child support over the last five years of the deceased’s life.

The court found that moant satisfied their burden that the defendant not only did not support the deceased because he was unwilling, but also had never resumed payment to the fullest extent possible before the death of the deceased.

The defendant contested the motion that: (1) his family court duty of assistance was inapplicable because it neglected the fact that he had no income while in detention in Afghanistan prior to his 2006 release; (2) moant tried to alienate him from the deceased; and (3) the family court was biased against him because of his sexual orientation.

In application of the legally binding doctrine, the court refused to re-examine the regularity of the defendant’s support obligations. It found, however, that doctrine, which should not be applied mechanically, can allow a court to retrospectively examine “a variety of non-exclusive factors to determine the exclusive effect of an earlier judgment, if any,” such as a material one Change before the law.

The “significant change in the law” was the amendment to the Family Court Act Section 451 (3) (a) from 2010, which enables a child maintenance order to be changed “after evidence of a significant change in circumstances”. In detail, the amended law provided for the following:

Detention is not considered voluntary unemployment and does not constitute an obstacle to any significant change in circumstances unless such detention is related to failure to pay a maintenance claim or a criminal offense against the parent or child who is the subject of the judgment (Matter of Lee , above).

This provision can be applied “retrospectively” [] By Date of Filing Amendment “(id.), the surrogate mother found that the Respondent had never implemented its 2008 Support Policy Amendment, and so the court was prevented from legally prohibiting the Respondent’s motion.

The surrogate mother dismissed the respondent’s remaining arguments, stating that the alleged bias and alienation could have been brought before the family court or on an appeal. The court also found that the family court’s finding lacked the need for a hearing to determine the respondent’s solvency and that the respondent’s ability to care for the deceased was not a defense against the respondent’s omission. Accordingly, the court ruled that the defendant did not object to the motion.

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