Opinion
93137/04.
May 19, 2009.
MELINDA MANN, New York, Petitioner.
This petition by Melinda Mann for an order authorizing her to withdraw a lump sum of $3,000.00 from funds of her infant son, Dylan DiOttaviano, presently deposited with HSBC Bank, is denied.
The record indicates that the infant is nine (9) years old. As of March 3, 2009, the custodial account for his benefit showed a balance of $14,821.96. The petitioner is the mother of Dylan and custodian of the subject account.
The petitioner and child live together as month-to-month tenants at premises known as 469 Maple Street, Apt. No. 2, Poughkeepsie, New York. Petitioner has been served with a notice to terminate the tenancy, effective May 31, 2009. She has also received a three (3) day notice from the landlord alleging she owes the sum of $1,760.00 in unpaid rent.
Petitioner asks for permission to withdraw $3,000.00 from the infant's account to cover moving expenses and assist with rent and security at some new undisclosed rental location (Petitioner's notarized statement, dated May 5, 2009). It is unclear how petitioner calculated the requested amount.
It is well settled that parents have the primary obligation to support their unemancipated children until the age of 21. (Turano Radigan, New York Estate Administration, 2009 edition, § 9.04[c][2]; Family Court Act § 413.)
Withdrawal of an infant's funds to meet family needs or to support parents is not normally permitted. ( Matter of Polinsky, 33 Misc 2d 1002, 1004 [Sur. Ct., Kings County 1962].) Infants are entitled to expect funds entrusted to their guardian to be intact upon attaining majority and not a "bundle of orders" which spent the money for the necessities of life which parents are ordinarily responsible to furnish. ( Matter of Polinsky, supra, pg. 1004.)
Permission to withdraw funds from a custodial account lies within the discretion of the court. This discretion is exercised cautiously with an acute understanding of its statutory duty to preserve the infant's estate until his majority. ( Ahders v. Southampton Hospital, 90 AD2d 508 [2d Dept. 1982].)
An important factor to consider is the proportion of the child's property to the requested expenditure. ( New York Estate Administration, supra, § 9.04[c][2].) Here, the withdrawal of $3,000.00 represents 20.24% of the infant's funds. That, along with the child's tender age, the fact that no foreseeable benefit will inure to him and the needs of the infant will undoubtedly increase in the ensuing years, are significant reasons to deny the application.
Finally, this proceeding is distinguishable from the decision in Matter of Ebony McGary, Infant, 01/13/98 NYLJ 31 (col. 3). The Surrogate permitted the guardian to withdraw the sum of $1,370.00 from the infant's account to pay back rent and to remain as tenants in their rental unit. The guardian was also directed to submit to the court a written plan for the future payment of rent on the premises. The decision does not disclose whether the court took into consideration the proportion of the withdrawal in relation to the expenditure, nor is the age of the infant mentioned.
Here, the petitioner acknowledges that she and the infant have already received a notice to terminate their month-to-month tenancy, effective at the end of this month. Staying is not an option. The issue of unpaid rent is not the child's responsibility. The petitioner has failed to provide a rational basis for the amount of the proposed withdrawal.
The foregoing constitutes the decision and order of the Court.