Dedicated Family Law Attorneys
Money may have been the thing that broke up your marriage, but it shouldn’t be what gets in the way when it means doing right by your kids. In fact, the state of New York has it figured out for you.
Determining child support for parents who are seeking a separation agreement or divorce is typically carried out using a standard formula. This formula is actually very simple, yet often it can feel unfair to both the payer and the payee. Understanding the formula will assist both sides in managing their finances.
Child support is most often calculated for families with a combined parental income in the following manner:
Percentages of combined parental income:
17% – 1 children
25% – 2 children
29% – 3 children
31% – 4 children
35% – 5 or more children
The court will use the most recently reported income (gross income, less FICA) on your federal tax return. It is important to note that case law establishes the court’s right to apply the percentages well in excess of $130,000 of combined parental income and the courts regularly do. How high they go varies from case to case, county to county and judge to judge. The courts consider the reasonable needs of the child or children in determining this issue.
Determining child custody in the divorce process is not as cut and dried as it was twenty years ago. For the most part, custody is not “automatically” granted to the mother. Nowadays, fathers have rights, as do grandparents, and both are given a voice in court. The essence of family law is to do that which is in the best interests of the children. No matter how you slice it, custody matters remain emotionally charged for the whole family.
In most cases, the court will work to keep both parents involved in a child’s life. Oftentimes an advocate or “Law Guardian” will be appointed to represent the children’s interests and be their voice in court.
Factors that will influence the court’s decision include:
Status Quo: is there currently a custody agreement that has been developed and used by the parents?
Siblings: the court usually works to keep siblings together, but at times the needs of siblings will differ and thus the court could decide to split them between parents.
Stability of Environment: the court will usually prefer to keep the child in the same environment, community, school, etc.
Wealth of the Parent: the court will typically prefer to award custody to a place where the child has suitable space, a safer neighborhood, adequate food and clothing, etc.
Parental Stability: are both parents stable? Whether a parent suffers from an alcohol or drug problem or mental instability will influence the court’s decision regarding custody. A criminal history, history of abuse or history of promiscuity may influence the decision the court makes.
Other Factors also include:
Preference of the Child.
Relationship with the Parent.
Relationship with others in the Parent’s Household.
Grandparent Custody and Visitation in NY
The rights of a father or mother in regards to child custody and visitation have long been recognized by courts throughout the U.S. While fathers’ rights are a newer concept and are still making progress, grandparents’ rights are another relatively new idea. A grandparent often plays a major role in enriching a child’s life and attributing to his or her happiness and well-being.
Jonna’s Legal Lowdown: Always love your children more than you hate your ex. Remember that your children’s futures will be affected by your decisions in the divorce process. Kids are not pawns. If you always act in their best interest, your decisions will be sound.
Modification of Child Custody
Beginning the divorce process can be confusing and scary. But the end of your marriage doesn’t need to be the end of the world. One of the main focal points in any divorce involving children is their care and well-being. Unlike equitable distribution of property, which cannot be changed, custody, visitation and the support of your children can and often require modification.
Lives change. People lose jobs, get new jobs, sometimes need to move, get remarried, etc. The younger your children, the greater the chance that eventually – perhaps even more than once – modifications to your custody, visitation and support orders will need to be made before the children become adults.
Child support is often a point of contention, both for the payer and the payee. It is not uncommon for the payer to feel as though the support payments are being misused; and the payee can often feel as though the amount being paid is inadequate. Whether these feelings are justified or not, an experienced attorney can assist you in gaining all the knowledge necessary to understand how child support is calculated, how it is sometimes possible to deviate from the “guidelines”, and when it should be modified.
Some common occurrences that warrant a modification of child support include:
An unanticipated or unavoidable job change
A change in your child’s residence
Your child becomes emancipated.
A change in your child’s medical or educational needs.
When in doubt about child support, it can be very beneficial to consult with an experienced attorney to determine whether an agreement can be reached out of court, or whether court intervention is necessary.
Jonna’s Legal Lowdown: A word about SUNY caps: placing a SUNY cap restriction on the parent’s college tuition obligation is common practice in divorce, but what happens if your little geniuses get into Harvard and one or the other parent can’t – or won’t – pay his/her portion of the bill? Planning ahead can avoid a future court battle and more importantly, will ensure your children’s educational desires are fulfilled.
In a typical custody/visitation arrangement or order, one parent will be deemed the “custodial” parent and the other the “non-custodial” parent. Typically, the custodial parent will also have “final decision making” authority over the other parent, but not always.
Just as in determining child custody, visitation schedules and rights are determined in regards to what is in the best interest of the child or children involved. As such, visitation will typically vary depending upon the particular circumstances of your divorce or separation. The most desirable visitation schedule is one on which both parties agree. That even includes the issue of transportation – which can pose its own problems and therefore should be included in the agreement itself.
Having an experienced attorney to represent your rights during legal proceedings and negotiations regarding visitation rights can mean the difference between frequent petitions back to court to modify an undesirable agreement, and a smoothly running co-parenting arrangement. Together you can create a plan that works for you and your child without the need for continued court intervention.
Visitation Schedules in New York
A “typical” visitation used to look a lot like this: one day mid-week, every other weekend, and alternate holidays. The good news is there is a trend toward true “fifty-fifty” co-parenting schedules whenever possible. At Jonna Spilbor Law, our clients’ needs are never “cookie-cutter”. We work with you to ensure your specific needs, and your children’s, are met to the best degree possible.
Modification of Visitation in New York
Whether you are the custodial or non-custodial parent, it may be necessary at some point to modify your child’s visitation schedule. Common situations that may necessitate a visitation modification include: Your child’s preferences change; a parent’s living or financial situation change; or sometimes one parent’s living situation may suddenly become contrary to the best interests of the children. Things happen.
Every situation is unique. Before either parent files a petition to modify his/her visitation schedule, it is wise to sit down with an experienced lawyer to determine the best course action, and to ensure he parents’ rights are protected in the process, especially if you are the parent objecting to the change in visitation.
Orders of Protection
An order of protection is a court order that prohibits the person named from contacting or coming within a certain distance of the victim. A violation of the order of protection can have serious consequences, including criminal prosecution.
A temporary order of protection, or emergency restraining order, may be issued in order to offer a victim immediate protection. In these cases, a hearing will often be held at a later date to determine whether to keep the order in place. At times, a restraining order or order of protection may last for up to 2 years.
In New York, conduct that warrants the issuance of an order of protection can be fought in family and in criminal courts. Some counties will combine cases involving “domestic violence” into one integrated court. If you are the subject of an order of protection, it’s important to have an attorney who knows her way around both a criminal courtroom and the family court to best serve your needs.
Equitable distribution is the part of the divorce that is all about the “stuff”. “Stuff” is not a legal term of art, of course, but when I refer to it I mean the assets that were acquired after the date of marriage. Sometimes that can even mean items that one party brought into the marriage, but were transmuted into marital property either intentionally or accidentally. An experienced lawyer will need to review your particular situation in order to help determine what should be separate and what should be marital assets.