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Decades Of Litigation Experience

A Party’s Mental Illness and its Affect on Support Award Modification Requests

by | Aug 13, 2021 | Firm News |

By Jennifer L. Garber, Esq.

“When a party seeks to modify the child support provision of a prior order or judgment, he or she must demonstrate a substantial change in circumstance. It is the burden of the moving party to establish the change in circumstance warranting the modification. In determining whether there has been a substantial change in circumstances (Matter of Gravenese v. Marchese, 57 A.D.3d 992 [2nd Dept. 2008] Matter of Talty v Talty, 42 A.D.3d 546, 547 [2007] [internal quotation marks and citations omitted]; see also Matter of Nieves-Ford v Gordon, 47 A.D.3d 936 [2008]; Matter of Heyward v Goldman, 23 A.D.3d 468 [2005]; McMahon v McMahon, 19 A.D.3d 464 [2005]).

Diagnosis of a mental illness, in and of itself, has been held insufficient to demonstrate the “substantial change in circumstances” required to obtain a modification of a payor’s support obligation. Various cases from the Appellate Division, Second Department, have held that more is required with regard to a payor suffering from a mental illness, as follows:

Matter of Hackett v. Hackett, 154 A.D. 3d 751 (2d Dep’t 2017). The father was diagnosed with a mental illness which allegedly prevented him from securing employment commensurate with his education and experience, resulting in a significant reduction in his income. The court denied the modification requested, in part, because the father failed to present competent medical evidence in support of his testimony that a diagnosis of bipolar disorder interfered with his ability to obtain gainful employment to meet his child support obligation.

Greene v. Holmes, 31 A.D. 3d 760, 762 (2d Dep’t 2006). A father’s petition for a downward modification of child support, based on a bipolar disorder diagnosis was denied in part because the father did not “offer competent medical evidence to establish that he was unable to obtain employment due to his mental illness”

Matter of Yamonaco v. Fey, 91 A.D. 3d 1322 (4th Dep’t 2012), A father appealed from a finding of lower court that he violated a child support order, alleging that his mental health problems prevented him from working. The court held that the father was required to provide competent medical evidence demonstrating that his disabilities interfered with his ability to obtain employment and that his mental
illness interfered with his ability to work.

Accordingly, the existence of a mental illness alone will not win the day. A payor of support must demonstrate that a mental illness, supported by medical records, in fact prevents the movant from securing and/or maintaining gainful employment. In many cases, this may pose a substantial hurdle where medical intervention is available to treat mental illness.