Child Custody Frequently Asked Questions
Joint legal custody typically means that both parents, even after a divorce, have equal rights to make the major decisions for their children. Major decisions usual include religion, education and medical. Sometimes it can also include decisions involving what extra-curricular activities the children participate in. In a “true” joint legal custody situation, neither parent has a superior right to make these major decisions for the children. In some divorces, although it might state “joint legal custody”, the actual language of the decision may give one parent a superior right to make a major decision.
Joint residential custody typically means that the children spend an equal amount of time (50/50) or extremely close to 50/50 of the time with each parent (for example: with one parent 52% of the time). In a joint residential custodial situation, the parents typically live in the same school district. However, if they do not live in the same school district, then it must be decided which school district the children will attend.
Custody typically refers to “decision-making” powers, while visitation refers to when you have the children. Here are some other terms that can be used instead of “visitation” and also mean, when do you have the children: “parenting time”, “parental access”, and “access time”.
In New York, the Courts consider the “best interests” of the child when determining child custody. In analysing the “best interests” of the child, the Court will consider many factors, such as: willingness to foster a relationship with the other parent, whether or not there is parental alienation, stability, who has been the primary caretaker, child’s preference; any domestic violence, drug or alcohol abuse.
Yes, the courts are not supposed to consider the sex of the parent when making its custody decisions.
To obtain full legal and residential custody of a child, you have to demonstrate that you satisfy the best interests of the child better than the other parent.
You should consult with an experienced divorce attorney and determine the best strategy and evidence to bring to the Court’s attention.
Since every case is unique, it is difficult to say that One factor or even Two Factors are the “top” factors to consider in a child custody case.
In New York, if you are not married and have a child with another person, then most likely you have to file your custody petition in the local Family Court. If you are married, then you have to determine if you will also be filing for a divorce. A divorce action can only be filed in Supreme Court and that action can also contain a child custody component.
A custody hearing is a trial where each party brings forth its witnesses (if any) and evidence to the Court to demonstrate which parent should obtain custody.
You can go to Court and file a petition to stop the relocation.
“Maybe”. If you already have custody and you want to relocate to another State (or to a distance greater than 20 miles), then you most likely will need to get the Court’s permission to relocate. You will have to explain to the Court why you want to move. Your ex-spouse will be able to challenge your relocation. If you are thinking about relocating with your child, it is important to speak with a lawyer first.
It depends on what you mean by “Father’s Rights” – each parent has equal rights to custody.
This depends on the ages of the children and their maturity. You may want to consult with a mental health professional on what is the best approach on how to discuss the divorce with your children.
Maybe. If the new residence is within the same school district, then almost always yes. If the new residence is “close” to your current residence, you have to check with your attorney. If the new residence is “out-of-state”, you need the Court’s permission to relocate.
Maybe, but, usually difficult. If you have custody of the children and want to move out of State, you need the Court’s permission to relocate. You have to show the Court why the relocation is in the “best interests” of the children and how you will minimize the effect on the other parent.
If you can’t agree on a custody arrangement, then you can either: (1) try mediation; or (2) go to Court.
The courts are not supposed to consider the sex of the parent when making its custody decisions.
The short answer is “yes”. In New York, if you are the custodial parent (or the parent who has the child more than 50% of the time), then you are eligible to receive child support. The amount of child support you will receive is based on many factors, but, the most important one is each parent’s income. Typically, in New York, you can receive child support until the child is 21 years of age (and now, with a new law, if your child is disabled, perhaps up to 26 years of age).
In almost every case, you have to pay child support until the child turns 21 years of age. There are some limited exceptions, listed below.
You can volunteer to pay child support after the child turns 21 years of age. Some, divorce agreements will state that child support is to be paid until the child turns 22 or 23 years of age, provided the child is in college.
However, just because the child is enrolled in college, you do not have to agree to pay child support after the child turns 21 years of age.
Child gets married:
If the child gets married, before he or she turns 21 years of age, then in most cases, you will no longer have to pay child support. However, if the child gets divorced or is no longer married and is still under 21 years of age, then your child support obligation will be reinstated.
Entry into Armed Forces:
If the child enters any of the armed forces of the United States (Army, Navy, Marines, Air Force, Space Force and Coast Guard), then you can stop paying child support. If the child is discharged or no longer in the armed forces and is still under 21 years of age, then your child support obligation will be reinstated.
Entry into the U.S. Peace Corps:
If the child enters the United States Peace Corps, then you can stop paying child support. If the child is discharged or no longer in the Peace Corps and is still under 21 years of age, then your child support obligation will be reinstated.
Living away from both parents and financially independent of both parents:
If the child resides away from both parents and can demonstrate that they are financially independent from both parents, then you can ask the Court to stop your child support obligation. The Court has to determine that the child is actually financially independent before you can stop paying child support.
Yes. Typically, there are three reasons why you can request a modification to the amount of child support that either you are paying or that you are receiving.
The first reason is that there has been three years since the last child support order or modification. In other words, you can ask for a modification every three years. It does not mean that a Court has to give you a modification. It does mean that you automatically can request a modification. However, if your divorce agreement states that you have opted out of this reason, then this would not apply.
The second reason is that there has been a change in either parent’s income by more than 15% (Fifteen Percent). So, if at any time one parent’s income changes by more than 15%, then you can also ask the Court for a modification. You can also opt-out of this scenario in your divorce agreement.
The last reason is a “catch-all” and is stated as a “substantial change of circumstances.” The best example of this is if custody of the child switched from one parent to the other parent, that would be a substantial change of circumstances. Another example would be if you were paying child support for two children and now one child is over the age of 21 years of age, that would qualify as a substantial change of circumstances. If there is a substantial change of circumstances, then you can request a modification to your child support. Unlike the first two reasons, you can not opt-out of this reason.
Although, you can request a modification to your child support, it may be difficult to actually obtain one. If you want a modification, you should consult an attorney who can explain the steps to obtaining a modification.
In New York State, child support is calculated using a formula. There are many on-line calculators that can help you calculate the amount of child support that you may have to pay.
To use the formula, you need to know your Gross Income. If you receive a W-2 form, the Gross Income you have to use should be in “Box 5”, which is the “Medicare Wages and Tips” box. Note, in many cases, what is listed in Box 5 may be more than what you think is your gross wages. This is because, Medicare Wages includes benefits and other non-cash items like 401K benefits.
If you do not receive a W-2 form or if you earned additional income that is not listed on your W-2 form, you are obligated to use all of your income.
Once you have your Gross Income, the next step is to deduct the amount of Social Security tax withheld (Box 4 on your W-2) and also deduct the amount of Medicare tax withheld (Box 6 on your W-2).
For most cases, the result will be what is called your “Child Support Standards Act” Income. In some cases, you may have to add other income such as worker’s compensation benefits, unemployment, Social Security benefits and retirement benefits. Also, you may be able to deduct some expenses, such as child support paid from a previous order, business expenses and alimony obligations. Please note your Child Support Standards Act income (“CSSA Income”) is almost always more than your net income.
Finally, if you are paying spousal maintenance or if you are receiving spousal maintenance, then that should be either subtracted or added to your CSSA Income.
Once you have determined your Child Support Standards Act Income the next steps are to add the other spouse’s CSSA Income to your CSSA Income and that calculation will give you the Total CSSA Income for both parents. Once you have the Total CSSA Income for both parents you need to multiply that by the following percentages:
One Child: 17%
Two Children: 25%
Three Children: 29%
Four Children: 31%
Five or more Children: 35%
Once you do this calculation, this gives you the Total Child Support Obligation for Both Parents. For example, if you and your spouse’s Total CSSA Income for both parents was $100,000.00 and you had two children, you would arrive at a Total Child Support Payment of $25,000.00 per year. However, this is not what you would pay as the next step is to figure out your pro-rata portion of that amount.
To determine your child support obligation, the next step is to take your CSSA Income and divide it by the Total CSSA Income. For example, if you and your spouse’s Total CSSA Income was $100,000.00 and your CSSA Income was $70,000.00, then your pro-rata would be 70%. Then take that pro-rata and multiply that by the Total Child Support Payment (using the example of $25,000) to come up with $17,500.00 per year to be paid in child support. To get your monthly obligation you would divide that number by 12.
Please note that if your Total CSSA Income is greater than $154,000.00 then you first have to calculate the child support obligation up to $154,000.00 and then calculate how much it would be for the amount over $154,000.00. The Court has the option to calculate your child support obligation for the amount over $154,000.00 and it also has the option to cap how much it will go up to.
You should also note that there are also a few other exceptions to the final result. For example, if your income is below the Federal Poverty Guideline or the New York State Self-Support Reserve, then your child support obligation would be either $25 a month or $50 a month. Finally, you can also ask for a modification based on several other factors.
As you can see, the formula and the calculations can be somewhat complicated. It is strongly suggested that you consult an attorney to determine your actual child support obligation.
If there is no court order, then legally, no one has “custody” of the child. However, depending on the actual situation you might have what is called “de facto” custody. You need to consult with an attorney to determine your rights.
Neither, as the law favors “best interests” of the child, which might be joint custody in some situations and sole custody in other situations. However, many Judges “prefer” joint custody, but, only if the parents can make decisions in an amicable fashion.
There are a few definitions of “parental alienation”. One definition is when one parent purposely undermines the relationship between a child and the other parent. The goal of the parental alienation is to estrange the child’s relationship with the other parent.
Not really, but, in theory yes. If the Court believes that the custody arrangement is not in the best interests of the child, then the Court has the power to impose its own custody terms. This is a very rare occurrence.
There is no assumed custody arrangement, whether it is 50/50 or otherwise. Each situation is different and the outcome is based on what is in the best interest of the child.
Yes, once a child turns 18 years of age, they are legally an adult and can make their own determination as to custody and visitation, the Court has no power to dictate to someone who is 18 years of age or older when or how they see each parent. Please note that although the Court has no power over visitation for an 18-year-old, that child support continues to 21 years of age.
There can be many ways to present evidence to a Court. You might have photographs or video showing the abuse. You might have audio evidence of the abuse. You might have third-party witnesses to the abuse. Of course, you have your own testimony as evidence.
Yes, all custody decisions can be enforceable in the other States, including New York.
If you have custody of the children and want to move out of State, you need the Court’s permission to relocate. You have to show the Court why the relocation is in the “best interests” of the children and how you will minimize the effect on the other parent.
Your spouse has the burden of proof to show that any allegation is “true”. You can rebut that allegation, and you have the burden of proof to show that your rebuttal is true.
The amount of child support you pay depends on the income of both parties. There are many child support calculators that you can find online. However, you should always consult with an attorney to determine what your child support might be.
As it relates to child custody, it will not matter if both the Husband and the Wife file for divorce. In almost every case, the Court will only accept the first filed divorce action. In addition, if only one party files for divorce, that also has no effect on child custody.
In New York, failure to pay child support is a crime (see N.Y. Penal Law Section 260.05 and Section 260.06). The failure to pay child support is typically prosecuted in Family Court (not in Criminal Court). You could be facing up to 6 months in jail for failing to pay court ordered child support.
If you do not go to court, then technically neither parent has “full custody” as there is not a court order. If you do not want to go to Court, you go to an experienced child custody attorney who can draft a custody agreement. If both parents sign a custody agreement (that meets all the legal requirements) which states that one parent is the full custodial parent of the child (or children), then this document should be recognized that you have full custody of the child.
Once a child turns 18 years old, then they are considered an adult and they can live with either parent or they can decide not to live with either parent. Before a child turns 18, they can express their preference as to which parent they want to live with. Although the child’s preference is not necessarily determinative, the older and more mature a child the more that the Court will take the child’s preference in mind. However, in general terms, once a child turns 16 years old, it is very likely that the Court will agree that a 16 year old can decide which parent they want to live with.
When it comes to determining custody of a child, it does not matter if the parents are married or if they are not married. The Court does not consider marriage in the award of custody of a child.
Courts are not supposed to favor mothers (or fathers) in custody cases. The sex of the parent is not one of the factors in determining child custody. Instead, a Judge is supposed to evaluate these factors (not necessarily in this order, and this is not necessarily a complete list):
(i) Who has been the primary caregiver of the children?
(ii) Has there been any child abuse?
(iii) Has one parent engaged in domestic violence?
(iv) Does either parent engage in drug abuse or alcohol abuse?
(v) Which parent will foster a relationship between the child and the other parent?
(vi) Has either parent engaged in parental alienation?
(vii) What are the child’s preferences?
(viii) Which parent can provide a better home environment?
(ix) Which parent can better serve the child’s emotional and intellectual needs?