Custody
How are child custody cases determined?
The court determines child custody based on what it considers to be in the “best interests of the child.” To make this decision, the court evaluates several factors, including: who the child’s primary caregiver is, the child’s preferences, the physical and mental health of both the parents and the child, each parent’s parenting abilities, work schedules and childcare plans, the child’s relationship with each parent, any history of domestic violence or child abuse, the child’s current living situation, and the parents’ willingness to cooperate and communicate with each other.
What are visitation rights?
When one parent is granted sole custody of a child, the other parent is generally entitled to visitation rights, or the right to visit with their child. The terms and schedule of visitation can be decided by the parents, or if they can’t agree, then by the courts. Visitation is generally granted to non-custodial parents unless it is not in the child’s best interest, such as if the non-custodial parent is abusive, a drug addict, or alcoholic. In joint-custody arrangements, visitation is not an issue because the child lives with both parents.
What are the different types of child custody in NY?
There are two main types of child custody: physical and legal. Physical custody, also known as residential custody, refers to the parent with whom the child lives. Legal custody, or decision-making custody, involves the authority to make important decisions about the child’s life, such as those related to health and education.
Both physical and legal custody can be either sole or joint. In sole custody, one parent is responsible for the child’s living arrangements and has the primary decision-making authority. In joint custody, the child divides their time between both parents’ homes, and both parents share the authority to make major decisions. This can involve “equal decision-making” or allow the primary custodial parent to make final decisions after consulting the other parent. In New York, joint custody is often arranged through mutual agreements based on the parents’ circumstances. Additional custody types include shared and split custody. Shared custody means parents equally divide time with their child, while split custody involves each parent having at least one child living with them.
What is the difference between a custodial and non-custodial parent?
The term “custodial parent” refers to the parent who has primary physical custody of the child. This parent lives with the child most of the time and takes on the majority of the caregiving responsibilities, even in joint custody situations where the other parent is actively involved in the child’s life. On the other hand, the “non-custodial parent” is the parent who does not have physical custody. However, a non-custodial parent can still hold legal custody, meaning they have the authority to make important decisions about the child. They may also have visitation rights and maintain significant involvement in their child’s life.
Can a custodial parent relocate with their child?
If a custodial parent’s move would interfere with the non-custodial parent’s visitation rights, the non-custodial parent can take legal steps to stop the relocation. This may involve filing a petition for custody or requesting a modification of the custody arrangement to prevent the move. In such cases, the custodial parent would need to demonstrate to the court that the move is necessary for economic or family reasons and that it would not significantly hinder the non-custodial parent’s visitation rights.
A judge might block the custodial parent’s relocation or require them to cover the non-custodial parent’s travel expenses for visiting the child. Ultimately, the court will decide if the move is permissible based on the child’s best interests, whether the non-custodial parent will still have access to the child, and any exceptional circumstances, such as financial needs or health concerns, that justify the move.
Can I modify my child custody agreement?
In New York State, a child custody order can be modified if there has been a significant change in circumstances since the original order was issued. If such a change has occurred, you can file a modification petition with the assistance of an experienced family lawyer. The court will reassess the custody arrangement using the same criteria as before, focusing on what is considered to be in the best interests of the child.
Child Support FAQs
Who pays child support?
When one parent has custody of a child, that parent, known as the custodial parent, can file a petition in Family Court requesting child support from the non-custodial parent. Child support is financial assistance typically paid by the non-custodial parent to help cover the child’s expenses, including their basic needs and educational costs.
How is child support determined?
In New York State, basic child support is calculated using a fixed percentage of the parents’ combined income, with the percentage based on the number of children. The percentages are as follows:
- 1 child: 17%
- 2 children: 25%
- 3 children: 29%
- 4 children: 31%
- 5 or more children: 35% or more
These percentages are applied to the combined parental income up to $184,000.00. For income beyond that threshold, the court has the discretion to decide whether to continue applying the same percentages or use a different approach.
What if I can’t afford to pay child support?
If your income changes and you can no longer afford your child support payments, you can file a petition in Family Court to modify the child support order. However, to request a modification, there must be a significant change in circumstances, such as a decrease in income. You will need to provide proof of this change, such as pay stubs, W-2 forms, or tax returns, and file the petition as soon as the change happens.
What happens if I don’t pay child support?
If you fail to comply with a court-ordered child support payment schedule, you are violating a court order and may face severe legal consequences. These can include jail time, wage garnishment, interception of your tax refund, seizure of property, suspension of your business license, revocation of your driver’s license, and other penalties.
Until what age do parents have to pay for child support?
In New York State, parents are typically required to pay child support until the child turns 21 years old. However, under certain circumstances, a child may be deemed “emancipated” before reaching that age, which would relieve the parents of their obligation to continue paying child support. A child may be considered emancipated if they are married, financially independent, or serving in the military.
Do I need a lawyer to file for child support?
Parents filing for child support are not required to have a lawyer. However, because the process of filing for and obtaining child support can be quite complex, it is strongly recommended to seek legal representation. If you need assistance from a child support attorney in New York State, consider reaching out to a lawyer from Shim Law Group, P.C. for guidance.
What if the child’s other parent lives out of state?
If a parent is awarded legal custody of their child and the other parent lives in a state outside of New York, it is still possible to obtain child support payments through a New York court. You can consult with a Family Court clerk or speak directly with a New York divorce lawyer at our firm to discuss your case.
I cannot afford to hire a lawyer for my child support case. What do I do?
If you cannot afford to hire a lawyer for representation, it’s important to note that Family Court does not operate like criminal court and cannot appoint legal counsel at no cost. While having an attorney is not mandatory, it is advisable. If you would like legal representation but are concerned about the cost, please feel free to reach out to our firm. We can discuss payment options that may be available to you.
Can I contest a child support order?
Yes, if you disagree with the child support order that was issued, you have the right to file an “Objection.” Our firm can assist you in preparing and submitting this document. You must file the objection in court within 30 days of receiving the finalized child support order. It’s important to note that the other parent has the opportunity to respond to your objection. The Family Court will review the details of your objection, consider any input from the other parent, and then make a decision based on the information presented.
Will my child support case go to court?
Not all child support cases require a court appearance. However, if your case does go to court, you will need to submit various documents to the Family Court, including records of your expenses, income documentation, and additional paperwork such as pay stubs and utility bills. Once the court has received the documentation from both parents, it will review and compare the information to determine the appropriate amount of child support the non-custodial parent should pay.
