5 Child Custody Questions and Answers in New York

5 Child Custody Questions and Answers in New York

Sona Sulakian
 | 
In 2018 there were 782,038 divorces and annulments, representing 2.9% of the US population.

Children are often caught in the middle of the heated and emotional arguments that ensue over custodial rights. In fact, in 2018 about 21.9 million children had a parent who lived outside their primary household. That's more than than a quarter (26.5%) of children under 21 years. 

This situation usually entails one parent providing the other parent with some form of financial support.

In 2017, an average of
$3,431 in child support per custodial parent was received for the year.

So if you’re considering a divorce or separation in New York and you have children, it is vital you understand the legal issues involved in child custody. Here are answers to commonly asked questions around child custody in New York.

How is child custody decided?

To save the time and expense of trial, spouses should try to come to a mutually acceptable agreement. If you and your spouse cannot agree, then custody will be decided in Family Court or as part of a divorce action. Until a final determination of custody is made at trial, temporary orders of custody may be issued. These orders often become permanent if no problems arise.

In deciding which parent will receive custody, courts will consider what is in the best interests of the child. Here are some factors courts will look at:
  • Which parent currently has custody (Court prefer to keep the child in the same home rather than change custody)
  • Which parent has better child care arrangements
  • Which parent who has been the primary caretaker of the child
  • Which parent offers better educational opportunities
  • Mental health of the parent
  • Physical health of the parent
  • History of misuse of drugs or alcohol
  • History of domestic abuse
  • Parent’s finances
  • Living conditions
A child’s preference to live with one parent may also be considered. The court will appoint your child a Law Guardian who will advocate for your child’s wishes. However, the younger the child, the less weight is given to the child’s desires. 

Custody orders may be modified later on. You can file a Custody/Visitation Modification Petition to modify a custody order if there has been a significant change in circumstances.

What is the difference between joint custody and sole custody?

There are two types of custody, joint and legal. Legal custody describes the right to make decisions affecting a child. Physical custody refers to the right to be with and care for the child in person.  

Joint legal custody means the parents have to agree with each other on all major decisions for the child, such as healthcare, education, and even religion. Sole legal custody gives one parent the power to make decisions unilaterally, without consulting the other parent. 

Joint physical custody means the parents have to split their time with the child, usually equally 50/50. The parent that receives more than 50% of time with a child becomes the custodial parent, meaning that parent can make certain decisions and claim certain tax credits without the other parent’s consent. Sole physical custody means that one parent has physical custody and the other parent has very limited time with the child.

When does one parent have to pay child support?

Under New York’s Child Support Standards Act, the non-custodial parent must pay the custodial parent child support amounting to a certain percentage of gross income. The non-custodial parent is the parent who spends less than 50% of the custodial time with the child. If physical custody is split evenly, then the parent with the larger income is the non-custodial parent and must pay child support. 

According to the latest U.S. Census, the court granted 49.4% of 12.9 million custodial parents the right to receive financial support from the noncustodial parent in 2018. In New York, child support is calculated according to a formula. You can use this New York child support calculator to estimate the amount of child support for your case. 

Please note that if child support is not paid, one parent may not deny the other visitation rights. 

What if the other parent tries to move the children to another state?

Congress passed a series of acts to prevent one parent from moving a child to another state and getting a custody order against the other parent in the new state. Under these acts, the original custody order will be enforced in all other states. If there’s no custody order in place, you may need to go to a court in the state where the children are located.  

The usual procedure to move out of State would be with the consent of the other parent or by court order after a hearing, called a relocation proceeding. Courts generally don’t want children to be relocated if one parent objects.

What should I know before a custody trial?

Anticipate the other side’s arguments for custody. Conduct yourself politely and properly in court because judges will factor their observations of your behavior into their final decision.

Although courts are not meant to show bias between parents, about 79.9% of the 12.9 million custodial parents were mothers in 2018. 

Although courts has a large amount of discretion in deciding custody cases, the following may help you maximize your chances of getting a better custodial arrangement:
  • Maintaining a stable job with a consistent schedule
  • Providing adequate living conditions
  • Being able to demonstrate a close, caring relationship with your children over time
  • Having no problems with substance or spousal abuse

At LawChamps, we can match you with a guardianship lawyer near you to help you prepare your case properly and maximize your chances at getting a favorable custody agreement.

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
Sona Sulakian

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