The father asserts that the Family Court’s conclusion that he deliberately violated the support order is unfounded and lacks a solid basis in the available evidence. He argues that his inability to fulfill child support payments were adequately explained and supported by relevant documents, demonstrating his sincere efforts to increase his income.

However, we disagree with his standpoint. According to the law, parents are presumed to possess the means to support their children who are below the age of 21. Non-payment of support as ordered is considered prima facie evidence of a willful violation, shifting the burden to the owing parent to present competent and credible evidence of their inability to pay. To establish willfulness, which can lead to imprisonment, clear and convincing evidence is required.

In this case, the testimony from both parties confirmed the father’s failure to comply with the support payments stated in the May 2018 order. Additionally, the support collection unit report indicated overdue child support payments, and the mother’s financial disclosure affidavit further supported the evidence of a willful violation.

Consequently, it was the father’s responsibility to provide competent and credible evidence of his inability to pay. He testified that he had been self-employed as the owner and cook of his restaurant since 2017. He also stated that his health issues, including high blood pressure and diabetes, hindered his ability to work.

The father expressed his desire to close down his failing business and seek alternative employment but claimed that his landlord refused to release him from the lease. He mentioned various efforts he made to promote the restaurant, such as advertising in local newspapers and churches. He also mentioned unsuccessful attempts to secure a loan or credit card to cover child support payments.

Furthermore, he made efforts, through a realtor and online platforms, to sell the restaurant and use the proceeds to fulfill his child support obligations. He stated that if he could sell the business, he might consider driving a cab or working for Uber, despite previously stating that he couldn’t work as a truck driver due to his high blood pressure.

The father argued that limited employment opportunities were available to him as an unskilled and uneducated worker who sought asylum in this country from Pakistan in 1999. He mentioned the possibility of returning to Pakistan and pursuing a career in public office.

However, the Support Magistrate determined that the father’s testimony and documents, though claiming to accurately represent his financial situation, did not provide competent and credible proof of his inability to pay. The Magistrate also concluded that the father willfully violated the May 2018 order.

The documents that were submitted consisted of a small number of pay stubs, handwritten receipts for cash sales that raised doubts about their authenticity, and an incomplete financial disclosure affidavit. Moreover, the Magistrate found that the father failed to present competent evidence of his inability to work due to health issues or disability. Additionally, he did not sufficiently explain why he couldn’t seek employment as a cook or in restaurant management.

Considering the Support Magistrate’s credibility assessment, which was not challenged by the Family Court, we concur that the father’s evidence was clearly insufficient to meet the burden of disproving the prima facie case of willful violation.

The father’s claim that the Family Court’s issuance of a 30-day suspended sentence constituted an abuse of discretion lacks merit. When clear and convincing evidence shows that a parent has willfully failed to comply with a lawful support order, the court may impose a term of incarceration for up to six months. It’s important to note that the father does not contest the length of the sentence or its conditional suspension. Rather, he argues that imprisonment for failing to pay child support is an abuse of discretion, as alternative remedies are more appropriate given his employment status, his evident good-faith efforts to meet current and past obligations, and his verifiable explanations for previous discrepancies.

Notwithstanding the father’s alleged mitigating circumstances, the court’s imposition of a suspended term of incarceration falls within its discretion, considering the finding that the father willfully failed to comply with a lawful support order.

Amanda YY. v. Faisal ZZ., – NYS3d – , 2021 WL 5497289 (3^rd Dep’t.  2021)

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