CHILD CUSTODY AND VISITATION DISPUTES
In New York child custody and support are often the most disputed areas in divorce negotiations as they affect both emotions and money. Unfortunately, children are used as a bargaining chip. Parents' responsibility to manage their children's growth and development continues even though the marriage ends.
Both parents should help their children understand that although Mother and Father no longer love each other as husband and wife, they do love each other as parents. It is essential that both parents successfully convey love to their children. As husband and wife, ways of working together may be beyond reach.
However, as parents, there are may ways and resources available in New York child custody disputes to parents who will seek them. The most important purpose of any method chosen by parents is to convey to their children that both parents care about their children's personal safety and about making their love known to the children.
In New York child custody matters, the Court determines custody based on what it believes to be the best interests of the children. This aspect can be the most complicated and controversial component of a divorce in New York. Sometimes children become a bartering tool and their well being gets lost in the game of tug-of-war.
Child custody matters in New York affect children under the age of 18. When the parents disagree about issues of child custody, the New York Court will often appoint a law guardian who will make an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule.
Sole Custody in New York child custody disputes: If the parents are not awarded joint custody, one parent will have sole custody of the children. Sole custody means that a parent has the authority to make legal decisions for the children. The non-custodial parent is awarded specific visitation with the children.
Joint Custody in New York child custody disputes: In joint custody, both parents have legal custody with one parent designated as the primary residential parent. Joint legal custody means that both parents have the right to make major decisions for their children. These decisions include residence of the child, medical and dental treatment, education, child care, religious education, extra-curricular activities, summer camp and recreation.
Shared Custody in New York child custody issues: In shared custody, both parents share legal custody with each parent having specific periods of responsibility with the children. This arrangement gives both parents the right to make major decisions on an equal basis for their children.
The New York Courts will not award joint or shared custody unless the parents can demonstrate a level of maturity, willingness and ability to set aside their personal differences in order to decide what is in the best interest of their children.
GRANDPARENTS' RIGHTS TO CHILD CUSTODY
In January, 2004, the New York Domestic Relations Law was amended to give the grandparents of a child residing in New York state custody rights in a case where the grandparents can demonstrate the existence of "extraordinary circumstances". Such an "extraordinary circumstance would be an "extended disruption of custody". This would constitute a prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. The New York Court may find that extraordinary circumstances exist where the prolonged separation is less than 24 months, based upon other circumstances.
FACTORS FOR NEW YORK COURTS DETERMINING CHILD CUSTODY AWARD
No one factor is determinative in making a child custody award. The New York courts must weigh and balance the "totality of the circumstances" in making any custody determination. In deciding what is in the child's best interests, the New York court is required to consider many factors, such as:
* The effect of a separation of siblings;
* The wishes of the child, if the child is old enough;
* The length of time the present custody arrangement has continued;
* Abduction or abandonment of the child or other defiance of legal process by one of the parents;
* The relative stability of the respective parents;
* The care and affection shown to the child by the parents;
* The atmosphere in the homes;
* The ability and availability of the parents;
* The morality of the parents;
* The prospective educational probabilities;
* The possible effect of a custodial change on the children;
* The financial standing of the parents; and
* The parents' past conduct.
Additional factors that New York courts consider include:
* The refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation;
* Unauthorized relocation of the parent and child to a distant domicile; and
* Making unfounded accusations of child abuse.
Where either parent alleges that the other parent has committed an act of domestic violence against the alleging parent or a family or household member of either parent, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child.
A parent's ability to personally devote time to the child and his/her needs is an important factor.
As a matter of policy, New York courts tend to refrain from intervening with respect to the child's religious upbringing. However, courts may consider religion as a factor where a child has developed actual ties to a specific religion, or where a parent's particular religious practices threaten the health and welfare of the child.
CHILD SUPPORT PROCEEDINGS
In New York child support is usually paid by the non-custodial parent for the support, maintenance and education of the children. Voluntary gifts, clothes, transportation, vacation expenses or rent for the benefit the child may not be considered "child support". The custodial parent is not usually required to account for the child support in New York State.
Child support stops when a child reaches the age of 21 or is earlier emancipated. The parents may agree to support their children beyond the age of 21, for example, until the children graduate from college.New York State Child Support Standards Act Guidelines: Child support in New York is calculated pursuant to the New York Child Support Standards Act ("CSSA") (Domestic Relations Law §240(1--b) and Family Court Act § 413(1)(b)).
The guidelines contains tables which consider the gross incomes of both parents and appropriate deductions. The "basic child support obligation" is calculated by multiplying the "combined parental income" by the appropriate "child support percentage." "Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return" less deductions for social security and New York City and Yonkers income taxes."
The "child support percentage" is fixed as follows:
a) 17% of the combined parental income for one child;
b) 25% of the combined parental income for two children;
c) 29% of the combined parental income for three children;
d) 31% of the combined parental income for four children; and
e) no less than 35% of the combined parental income for five or more children.
In addition to ordering the payment of child support, the Court can order the non-custodial parent to pay his\her pro rata share of the child's future reasonable health care expenses not covered by insurance and the reasonable child care expenses when the custodial parent is working or attending school. The Court also has discretion to order the non-custodial parent to pay the costs of present or future private, special or enriched education for the children.
Enforcement of Child Support in New York: When the non-custodial parent refuses to pay child support, a court order or judgment for support may be enforceable by means of garnishment, wage deduction, income execution, liens on property or contempt. In New York child support arrears are not dischargeable in bankruptcy.
Modification of Child Support in New York: Until each child is emancipated, the court has the power to modify custody, visitation and child support in the event of a demonstrated change in circumstances. The modification could result in a change of custody or visitation, or an increase or decrease in the support obligation. Remarriage of either parent does not automatically result in a change of circumstances. In New York, a child is emancipated when he or she marries, joins the armed services.
