New York Child Custody
If you are a current resident of New York and going through a divorce or custody battle, it is important for you to be aware of the New York child custody laws. These laws and regulations will directly affect the decisions of the court in your case. By eliminating the element of surprise, you will be better prepared for the many bumps in the road ahead.
What types of custody do New York child custody laws facilitate?
New York child custody laws allow for custody to be awarded in a multiple ways. These are typically standard for every state, though there are few states that do not follow these types of custody completely. Be sure to consult a family law professional regarding this if you live outside of New York.
A single co-parent may be granted sole physical custody of the child or children involved. This co-parent holds the responsibilities of the day-to-day care of the child. New York child custody laws designate this co-parent to be the custodial parent and the primary residence of the child. In this case, the courts will most often grant the non-custodial parent visitation rights with the child, unless the court finds this not to be in the best interest of the child. The alternative to sole physical custody is joint physical custody. This means that both co-parents are seen as custodial parents for the child. The child spends significant amounts of time with both co-parents as determined by the courts.
Typically, New York child custody laws will try to promote joint legal custody. Family law professionals see joint legal custody as being in the best interest of the child in most cases. Joint legal custody means that both co-parents share the ability to participate in the decision-making process for the child, such as health, educational, and religious decisions. The opposite, sole legal custody, means that only one co-parent has the ability to participate in the decision-making process. New York child custody laws and courts only enforce sole legal custody in extreme situations because they do not see it as in the best interest of the child.
New York child custody laws and courts award temporary custody to one or both co-parents after a New York custody case is filed. Once the case is finished, the courts will award a custody order reflecting one of the above types, which will take the place of the temporary custody order.
How do the New York child custody laws and courts determine custody?
There are many factors, which play a role in a court’s decision-making process, most of which are used to determine the best type of custody for the child. Their goal is to choose the type of custody that will provide a stable and healthy environment for the child. These factors include the child’s age, physical and mental health, which parent is the primary caretaker for the child, the lifestyles of the parents, and so on.
First, the court determines each parent's net income. Net income is gross income minus certain deductions, such as FICA, NYC income tax, Yonkers income tax, spousal support and child support paid for other child(ren). Second, the court adds the parents' net income together and multiplies that number by a percentage, depending on how many children they have:
17% for one child
25% for two children
29% for three children
31% for four children
no less than 35% for five or more children
That amount is then divided based on the proportion of each parent's net income to the combined parental net income. In addition to the basic child support obligation, a spouse may also be required to pay for child care expenses, educational expenses and medical expenses.
SPOUSAL SUPPORT (Maintenance/Alimony)
Spousal support is court ordered money paid to support a spouse. Maintenance or “temporary maintenance” is support ordered to be paid for an ex-spouse, or while a divorce case is pending in court. Since October 26, 2015, New York has had a presumptive formula to decide how much support or “temporary maintenance” should be paid. On January 25, 2016, a new law took effect setting presumptive amounts and length of time for maintenance after a divorce. These guidelines are presumed to be the correct amounts and time periods, but the court still has discretion to order different amounts if the court explains why.
The guideline formula for maintenance is applicable to $192,000 of income for the payor - higher income spouse. Although this is an income “cap” for the guideline amount of maintenance, a Judge does have discretion to order maintenance above and beyond that amount after considering various enumerated factors. A Judge can choose not to apply the formula and instead decide an appropriate amount on a case by case basis, setting forth the reasons after consideration of fifteen factors. The factors are:
1. The age and health of the parties.
2. The present or future earning capacity of the parties, including a history of limited participation in the workforce:
3. The need of one party to incur education or training expenses.
4. The termination of a child support award before the termination of the maintenance award when the calculation fo maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded.
5. The wasteful dissipation of marital property by a party, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration.
6. The existence and duration of a pre-marital joint household or a pre-divorce separate households.
7. Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence.
8. The availability and cost of medical insurance to the parties.
9. The care of children, stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity.
10. The tax consequences to each party.
11. The standard of living of the parties established during the marriage.
12. The reduced or lost earning capacity of the spouse receiving maintenance as a result of having forgone or delayed education, training, employment or career opportunities during the marriage.
13. The division of marital property in the divorce and the income or imputed income on the assets so distributed;
14. The contributions and services of the spouse receiving maintenance as a spouse, parent, wage earner and homemaker to the career or career potential of the other party; and
15. Any other factor which the court shall expressly find to be just and proper.
New York Restraining Orders
Orders of Protection: Filing For a Restraining Order in NY
For a victim of domestic abuse, domestic violence, harassment, or stalking and to prevent further harm, a restraining order can be the best move.
This legally prohibits a person from being within a certain distance of the victim. If they come into contact, they can be arrested immediately. Restraining orders can remain in place for up to two years.
If you or someone you know is suffering from domestic violence, please call us today.