Moore v. Sharp

Order insofar as appealed from unanimously reversed on the law without costs and support provision vacated. Memorandum: After obtaining orders of filiation with respect to his two children, petitioner was ordered to pay child support in the amount of $25 per child per week. Petitioner, who is diagnosed as mentally retarded, receives $404 per month in Federal supplemental security income (SSI) and $27 per month in Social Security disabled adult child’s benefits.

The child support order was improper since it was made without appropriate concern for petitioner’s ability to pay (see, Family Ct Act § 545; Matter of Wevers v Brizzi, 90 AD2d 797). As an SSI recipient, petitioner receives only minimal income sufficient to meet his basic needs (see, 42 USC § 1381 et seq.; Zambardino v Schweiker, 668 F2d 194, 197 [3d Cir]; Whaley v Schweiker, 663 F2d 871 [9th Cir]). It is evident that he lacks the means to contribute to the support of his children. (Appeal from order of Erie County Family Court, Trost, J.H.O. — paternity.) Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ.