Child Custody Stability


Long Island divorce attorneyOne of the hardest decisions to be made when contemplating a divorce, is which parent gets custody of the kids. Before you start moving forward, first lets define custody. Custody is the expression used to describe a parent’s supervisory relationship with their children. Physical custody is the right of the parent to live with his/her children. Legal custody is the right of a father or mother to make decisions for the son or daughter regarding the child’s schooling, religion, medical care, discipline, as well as other such everyday decisions. So although married parents enjoy both physical and legal custody, when they are divorced, a decision as to custody, both legal and physical, has to be reached. Ideally, this decision is reached through a settlement, on the other hand, in case the mother and father are unable to agree, the Court will ultimately decide. Until recently, NY followed the “tender years presumption” which declared that mothers were inherently better fit to assume the custody of children. This presumption has been abolished and the law is currently gender neutral.

How does the Court decide? The Court will consider a host of factors when deciding what’s in the best interests of the children. Factors the Court will consider include: (1) the parent’s physical and mental health; (2) the usage of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or psychological abuse and (7) the parent’s relative economical status. These are just a few of the examples which the Court will take into account. The Court will never give more weight to any particular element it considers. Instead the Court will go through the totality of the instances when producing a determination.

divorce attorney long islandNow, although they are not necessarily giving more importance to any factor, the fact is that stability plays a major role in deciding physical custody. Generally, Courts will look to offer physical custody to one parent with the eye to establishing long term stability for the child. So while recent case law harps to the point that stability is one of many aspects in figuring out custody, in practice stability will play a major part in the Court’s decision making process. Who is the primary care giver? Who’s there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?

Clearly, moving out of the house doesn’t sound the death knell for custody. The spouse that moves out does not necessarily miss out on custody. What if your spouse is forced to leave to escape abuse? Clearly that spouse is not expected to stay in an unhealthy situation in order to maintain potential custody rights down the line. What if a spouse moves out to let the child to complete out the school year? Does a spouse who leaves the home implicitly concede custody to the other? Again, depends on the totality of the circumstances.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

When Do I Have to Start Paying Child Support?

Paying Child Support on Long Island

child support long islandYou have made the decision to get divorced.  You’ve hired an attorney, filled out net worth statements and sat through countless meetings.  The Judge hears your case grants you a divorce. You immediately find out you’re 12 months behind in child support payments and you’ve only been divorced for ten minutes….what happened!?!

Domestic Relations Law (“DRL”) §236B7 happened.  It states that “…such order shall be effective as of the date of the application therfor, and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which had been paid.”  Or in other words, you are liable for child support as of the day the application was served.  So, your spouse filed for divorce and you were served with papers on February 1, 2011.  Your divorce was finalized February 1, 2012.  As of February 1, 2012, you are in arrears for 12 months of child support.

long island child support

Make sure to keep records of everything during your divorce.

In calculating any back child support that is due, the court will take into account any temporary support payments that you made pending the divorce.  Thus, if you are in arrears $10,000.00 and you are able to show that you have been paying child support every month for a total of $8,000.00, you are in arrears $2,000.00.  What if you over pay?  Your children will be appreciative however, you will not get a credit.  In other words, child support for the year is $10,000.00 and you can show you paid $12,000.00, your spouse is not liable to refund you the difference.

Your back child support must be brought up to date.  However, in the court’s discretion, you may be allowed to break up your payment into monthly installments in addition to the court ordered support.  So, back to our example, if you are ordered to pay $1,000.00 a month in child support and owe $12,000.00 in back child support ($1,000.00 x 12 months) the court, in its discretion can break up your back pay over a year.  Thus, you will still pay $1,000.00 court ordered support, plus another $1,000.00 a month in backed child support for the first year, or in other words, that first year you will be paying $2,000.00 a month in child support.

Learning point: keep detail records of all support going to your spouse during the divorce process.  If you can, create a paper trail.  Pay your spouse with a check.  Understand that if you are not the custodial spouse, i.e. you do not have the kids, may be liable for child support. Speak to your Long Island divorce attorney about potential child support liabilities and plan accordingly.

Long Island divorce attorney