Opinion
No. HHDFA030635317
August 12, 2005
MEMORANDUM OF DECISION
The Department of Social Services filed a support petition on behalf of the plaintiff mother against the defendant, who had previously signed an acknowledgment of paternity pursuant to General Statutes § 46b-172. The minor child Eliana Dayaliz Martinez was born in Hartford on January 21, 2003. At the initial hearing the court, McCarthy, F.S.M, set a temporary child support order of $60.00 per week and continued the matter for the defendant to complete a diligent employment search.
On the next court date, the defendant had obtained employment for a 35-hour work-week. The court, Hutchinson, C.F.S.M., increased the temporary order to $67.00 per week. During the course of that hearing the defendant raised the claim that he had another child located in the Dominican Republic for whom he was providing financial support. The court continued the matter further to allow the defendant an opportunity to prove that he is the father of the child and the amount of financial support that he was providing. At the next hearing the court, Baran, F.S.M, further continued the matter for proof of paternity of the child in the Dominican Republic. A further continuance was necessitated because of the absence of a Spanish language interpreter.
At the final hearing, the defendant filed a financial affidavit in which he disclosed income of $250.00 average weekly gross with a net of $207.87 per week. In testimony, he insisted that he was working a 40-hour week at Artist Market for the stated wages even though that would be below the State minimum wage. General Statues §§ 31-58(j), 31-60. He also produced a certified copy of a birth certificate from the Dominican Republic listing him as the father of a child Oriana.
General Statues § 31-58(j) establishes the minimum wage in Connecticut at $7.10 per hour. For a 40-hour work-week a minimum gross income of $284.00 should result. General Statutes § 31-60(a) states: "Any employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part."
In determining the support order for Eliana, the child support guidelines require that the court first state the presumptive amount required by the computation prior to considering any deviation. Regs., CT Page 11738-an Conn. State Agencies, § 46b-215a-3(a). Based on the financial affidavits submitted by the parties the court finds the defendant father to have a gross income of $250.00 per week with a net of $207.87. The plaintiff mother is receiving Temporary Family Assistance (TFA) as her only income which is exempt for purposes of calculating child support. The presumptive current support order is $46.00 per week plus $4.60 per week on the arrearage making a total of $50.60 weekly.
The defendant father requests a deviation from the presumptive guidelines amount for financial support he claims he is providing for Oriana. The defendant is not eligible for a qualified child deduction for Oriana and since there is no court order for child support he can not claim a deduction. The defendant seeks a deviation under Regs., Conn. State Agencies § 46b-215a-3(b)(4)(B) for "verified support payments made by a parent for his . . . dependent child not residing with such parent." Alternatively, he may be eligible for a deviation under § 46b-215a-3(b)(6)(C) based on "[o]ther equitable factors." "The threshold issue to warrant consideration for these deviations is whether the defendant can prove that he provides regular support and that he is legally obligated to support [the child]." Arias v. Macedo, 14 S.M.D. 273, 274, 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000); Kerr v. Busgith, 14 S.M.D.100, 102, 2000 Ct.Sup. 7429 (2000).
Oriana does not fit the definition of qualified child. "For this deduction to be available to the defendant, the children must live in the same household as the defendant as their legal guardian, or, if not their legal guardian, they must have lived in the same household for six of the twelve months immediately preceding the determination. Regs., Conn. State Agencies, § 46b-215a-2a(e)(1)(A)(i)." Arias v. Macedo, 14 S.M.D. 273, CT Page 11738-ar 274, 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000); Kerr v. Busgith, 14 S.M.D.100, 101, 2000 Ct.Sup. 7429 (2000).
"The child support guidelines provide for a deduction from an obligor's gross income when determining a child support obligation for `court-ordered . . . child support awards for individuals not involved in the support determination.' Regs., Conn. State Agencies § 46b-215a-1(1)(F). Thus, a deduction is only allowed for court-ordered child support obligations." Arias v. Macedo, 14 S.M.D. 273, 274, 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000).
The defendant never married Oriana's mother nor has there been a court adjudication of parentage. "The question rests upon whether there has been a procedure recognized in law analogous to our acknowledgment provisions by which the defendant is recognized as the father or otherwise has a legal obligation to support the children." Arias v. Macedo, supra, 14 S.M.D. 275; Kerr v. Busgith, supra, 14 S.M.D. 103.
Under the law of the Dominican Republic in a process called "legitimate filiation" a child born out of wedlock may be legitimated by the subsequent marriage of his parents if they have acknowledged the child prior to or in the act of their marriage. Children born out of wedlock who are not the offspring of incestuous or adulterous unions, may be legitimated by the subsequent marriage of their parents in the cases where they have legally acknowledged them prior to or in the act of their marriage. Codigo Civil Dominicano Ley 985 del 31 de agosto de 1945, art. 331. Articulo 333 provides that children legitimated in this fashion "shall enjoy the same rights and benefits of legitimate children." Alternatively, a child born out of wedlock may be "naturally filiated": With respect to the mother a natural filiation is established by the sole fact of birth. With respect to the father, it is established by acknowledgment or by judicial decision. Ley 985, art. 2. CT Page 11738-ao
This law came in to play in a federal case regarding immigration law. Sections 101(b)(1)(C) and 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(b)(1)(C), 1153(a)(2) (1976) grant preferential status to the legitimate and legitimated children of lawful permanent residents of the United States. The plaintiff sought a visa for his son, a citizen and resident of the Dominican Republic, born in 1957 out of wedlock the only means of legitimating a child born out of wedlock are acknowledgment or judicial declaration of paternity. The Immigration and Naturalization Service denied preferential immigration status for the child. The plaintiff appealed this decision to federal court.
On appeal, the ruling of the Immigration and Naturalization Service was upheld by both the district court and the circuit court of appeals. The court noted that Ley 985 art. 1 provides that natural filiation established pursuant to the provisions of the law produces the same effects as legitimate filiation with the exception of the distinction made in matters concerning successions. The exception referred to provides that in the event the parent also has a legitimate child or children and dies intestate, the naturally filiated child will inherit only one-half the share attributable to a legitimate child. Ley 985 art. 10. Because of this distinction, the court concluded that the son had not been legitimated within the meaning of § 101(b)(1)(C) of the Act and accordingly did not qualify for preferential treatment. The court upheld the position of the Immigration and Naturalization Service that an acknowledged child, in order to qualify as a legitimated child for purposes of 8 U.S.C. §§ 1101(b)(1)(C), must possess all the rights of a child legitimate at birth. De Los Santos v. Immigration Naturalization Service, 690 F.2d 56 (2nd Cir. 1982).
This court finds that De Los Santos is not controlling as to the issue in the present case for three reasons. First, De Los Santos deals with the highly specialized area of immigration law which is subject to narrowly drawn statutory constraints. The present issue is not whether Oriana can immigrate into the United States, just whether she is legally entitled to financial support from the present defendant. Secondly, Connecticut case law has not required that to qualify for recognition of parentage, the child must be "legitimated." Third, Dominican law has changed since 1945. Codigo de Proteccion para los Ninos, Ninas y adolescentes, Ley 14-94, arts. 9-14 appears to have superceded Ley 985, art. 10 and provides equal treatment of out of wedlock children. Ley 14-94 arts. 19-21 also provide for filiation of out of wedlock children. Provisions include filiation regarding the father by " mediante acto autentico" (act of authentication) which would appear to provide a basis for recognition of paternity reflected on a registered birth certificate. The birth certificate for Oriana appears to verify that the CT Page 11738-ap defendant is her acknowledged father as provided under Dominican law.
The defendant testified that he regularly sends child support payments for Oriana. He has introduced into evidence a series of international money order receipts payable to Oriana's mother at an address in San Jose de Ocha, Dominican Republic, in amounts varying from $50.00 to $158.00. The court finds his testimony credible and finds as a matter of fact that he regularly sends such payments and that they are intended for support of Oriana.
Under principals of comity, this court recognizes the validity of the birth certificate and as provided under the Laws of the Dominican Republic, recognizes the defendant as the acknowledged father of Oriana, who is legally entitled to support from her father. She is legally recognized as the defendant's child, a legal obligation to support exists, and the defendant makes regular voluntary payments of support. Accordingly the court grants a deviation to the defendant pursuant to Regs., Conn. State Agencies § 46b-215a-3(b)(4)(B) for support provided to Oriana in the Dominican Republic.
The State and plaintiff argue that an upward deviation should be considered by the court based on the best interests of the subject child, Eliana, and the claimed earning capacity of the defendant. The State in particular argues that the income declared by the defendant is less than a minimum wage forty-hour per week job in Connecticut. It is noteworthy that the temporary orders set by both Family Support Magistrates McCarthy and Hutchinson were based on earning capacity higher than his present reported income. There is no evidence to indicate that the defendant's earning capacity has decreased since the temporary orders were set. Accordingly, the court will also grant a deviation pursuant to Regs., Conn. State Agencies § 46b-215a-3(b)(1)(B) (parent's earning capacity) and Regs., Conn. State Agencies § 46b-215a-3(b)(6)(B) (best interests of the child).
Balancing the upward effect of the deviations for parental earning capacity and the best interests of the child against the downward effect of the financial obligations for the child in the Dominican Republic, the court finds that $50.00 per week is a fair and appropriate amount given the deviations granted, the other factors in the guidelines and the statutory factors. Based on the same deviation criteria the court orders $4.00 per week on the arrearage. This final order is effective July 26, 2005. As required by General Statutes §§ 46b-231(r) and 52-362, immediate income withholding is ordered.
The court finds that the same deviation factors apply to the arrearage CT Page 11738-aq computation. Accordingly, the arrearages should be calculated based on a $50.00 per week chargeable order. The parties resided together as an intact family from the birth of Eliana until the end of February 2003. The plaintiff testified that thereafter, the defendant paid the rent. She feels that the rent payments amounted to in-kind child support and she claims no arrearage. The plaintiff began receiving Temporary Family Assistance on July 17, 2003 and assigned her child support to the State of Connecticut. The total charges for past due support through July 25, 2005 are $5,300.00 against which the defendant is entitled to a $100.00 credit for a direct payment to the plaintiff plus credit for all payments made under the temporary orders.
The child support guidelines require the court to provide an order for medical and dental insurance coverage. Regs., Conn. State Agencies, § 46b-215a-2a(g)(1) and payment of the children's "medical and dental expenses that are not covered by insurance or reimbursed in any other manner." Regs., Conn. State Agencies, § 46b-215a-2a(g)(3). The file reflects that the court, McCarthy, F.S.M., entered such orders at the initial hearing. This court finds no reason to change those orders.
The defendant is ordered to pay the current support and arrearage order through the State of Connecticut Support Enforcement Division as they may instruct. The arrearage order shall apply against any arrearage, past, present or future, unless modified or terminated by court order or discharge of all support obligations by the defendant.
By the Court
Harris T. Lifshitz
Family Support Magistrate