Joint Custody & Child Support in New York

Happy Children Playing Kids

Happy Children Playing Kids (Photo credit: epSos.de)

Amongst the hardest things to deal with when getting divorced is providing for the best interests of any children of the marriage.  What some parents immediately think about is child support. The parent who is deemed to be the residential parent is the parent entitled to child support.  While that is easy enough to understand, it becomes tricky when both parents are residential parents, i.e. the children live with both parents exactly fifty percent of the time.  Many parents do this under the misconception that if they split the children exactly fifty percent of the time, child support will not be an issue.  This is not true as the parties in Leonard v. Leonard, found out in June of 2013.

The parties began an action for divorce and the issue revolved around child support.  The father was granted sole legal custody of the children.  This means, that while the parties should endeavor to consult each other regarding major decisions affecting the children, in the event the parties cannot agree, the father is the one who has final decision making authority.  Despite this determination, the parties were granted joint residential custody of the children.  The custody arrangement called for the children to spend exactly half the time with the father, and half the time with the mother.  Father earned approximately $134,000.00 a year and the mother earned approximately $14,000.00 a year, though the court imputed $25,000.00 a year income on the mother.

It is well settled that in a shared residency arrangement, where neither party has the children for the majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support.  Thus, the father, who made more money, was ordered to pay child support to the mother.  Here is the rational that the law relies on.  An award of child support will best ensure that the children of the marriage will receive the maximum benefit of their parents resources and continue to enjoy, as close as possible, their pre divorce standard of living.  In other words, the Court wants to ensure that the children can enjoy living with both parents as much as possible.

When dealing with custody of your children, people often think about joint custody, sole custody, shared custody and child support.  Here is a simple way to think about these complex issues.  First and foremost, where are your children going to sleep?  Both parents generally want to be the residential/custodial parent, i.e. the parent where the kids will reside.    The benefits of being declared the residential/custodial parent include, having your children live with you, final decision making authority, and child support.   Amazingly, child support is a battle.  It is simply amazing the amount of cases where the issue is simply the payment child support.  One way people try and avoid this is to split the children equally.  As we have seen, this is a misguided approach to avoiding child support.  First and foremost, it requires the children to move from parent to parent practically every week.  Once the children are school aged, this may not be in their best interest.  Additionally, you need to consider whether avoiding or getting child support by disrupting your children’s schedule is what’s best for them.  In all likelihood, it is not.  Considering custody in a divorce and need help? Call a Long Island divorce lawyer at Divins & Divins, P.C., for a free consultation and we’ll help resolve all of your questions and concerns.

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False Accusations Against a Spouse Can Lead to Losing Custody of Your Child

Often in divorce cases, the parties lose focus of the big picture and turn to a “win at all costs” strategy.  As any attorney will tell you, this seldom, if ever, works out the way you think it will.  This type of scorched earth policy tends to come out when fighting over custody of the children.  A prime example of how this tactic can back fire is found in the case of Carnike v Kasson.

In the Kasson matter, the parties had  one child.  The parties divorced and the Court awarded joint physical custody as it was clear both parents were loving responsible people.  The order directed the child moving from mother to father on a weekly basis. Right before the child, a little girl, was to start kindergarten, the wife made accusations that the father was sexually molesting the child, abusing alcohol and as a result of his job, rarely if ever home to take care of his daughter.   As a result, she petitioned the family court to have physical custody granted to her with the father only having supervised visitation.  Based on these accusations, father crossed moved for sole custody claiming that these accusations were only made to pull custody away from him and destroy any relationship he had with his daughter.

To warrant a modification of a pre-existing custodial arrangement, there must be sufficient evidence to support a change of circumstance reflecting a real need for a change in the order to continue the best interests of the child.  Courts have held that starting school is enough to warrant a change in circumstance requiring the establishment of a residence for the child.   Additionally, Courts have held that the lack any ability of the parties to communicate with each other concerning the needs of the child does not advance the best interests of the child and that it in itself is enough to establish a change in circumstances which may be enough for the Court to change the custodial arrangement.  Had the wife in this case stopped at that, simply saying that her daughter was beginning school and having her change her residence every Saturday evening was not in the best interest of the child, this case might have been decided differently.

At the hearing, the evidence showed that despite being seen by six different doctors there was no evidence of sexual abuse.  Additionally the court took note that there were no outstanding child protective service investigations nor any reports made by the mother to the police department.  The Court found that the mother in this instance was purposely attempting to interfere with the father’s parental rights.  Finally, despite the mother’s attempts to curtail visitation and custody, the father testified that he was willing to continue to promote the relationship between the mother and daughter.  As a result, the Court granted the father full physical custody of his daughter. Unexplainably, the Court declined to grant sanctions against the ex-wife for her accusations and actions.  This is the only part of the case that is surprising.  One can only assume that after losing physical custody of her daughter the Court deemed sanctions as unduly “piling on.”

False accusations and parental alienation is the fastest way for you to lose physical custody of your child.  Remember, divorce is hard enough for children to adapt to, the last thing they need is for you to ruin the relationship with your former spouse for no other reason that you are employing scorched earth tactic.  The best interests of your child is always to have a loving relationship with both parents.  It is imperative that you always foster such relationships and not interfere.  While you may no longer wish to speak to your ex-spouse, for the sake of the children, until they are emancipated, you must have at least a cordial relationship where you can discuss your child’s up bring.  It is to your peril if you are unable to keep such a relationship going. If you’re facing such problems, call a an experienced Long Island divorce attorney at Divins & Divins, P.C. for your free consultation.

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Relocating With Children After Divorce


After a divorce is final, the issue of child custody and visitation may be renewed. Typically the noncustodial parent will be allowed to see their child(ren) once a week, and every other weekend, with provisions for summer breaks and holidays. Trouble may arise when the custodial parent wants to relocate to a locale which may interfere with the noncustodial parent’s visitation. Though it is well settled that the residential parent is free to relocate where ever they so desire, this does not necessarily mean that they can also take the child(ren) in question.

In New York, relocation cases are no longer measured by a particular formula or a set of presumptions which must be proven. Instead, each case must be considered on its own set of facts and circumstances with the overriding concern being the best interests of the child(ren). The rights of the child(ren) in question will be accorded the greatest weight in the Court’s determination as to whether the residential parent may be allowed to move. When defining what is in the best interests of the child(ren) in question the Court will look at numerous factors. First, the Court will look at the relationship between the child(ren) and the noncustodial parent with an eye towards continuing to foster the relationship. Perhaps there is an easy solution. For example, if a move will inhibit the weekly mid-week visit but the residential parent is willing to allow extended weekend visits, this might be a situation where the all parties might benefit.

Obviously, economic concerns are a factor and when the move is being made in good faith and for a better paying job, the Courts will take a hard look at allowing the move. Another factor the Court will consider is the suitability of the noncustodial parent to become the custodial parent. A solution may be a simple as changing the residential custody arrangement to the parent who is not moving. Before changing the residential custody arrangements, the Courts will also take into consideration the effect that the relocation and/ or transfer of custody will have on the child and the child’s wants and needs. Ultimately the Court will have to determine, based on all the facts presented, by a preponderance of the evidence, whether the relocation is in the best interests of the child.

LEARNING POINT: Even though residential custody may have been settled in your divorce, circumstances may arise where relocation of the child(ren) of your marriage once again becomes an issue. Whether you are for or against the move, the standard is the best interests of the child(ren) and you must be in a position to present your wishes to the Court. Contact us immediately if relocation of the child(ren) is now an issue for you. Effective representation is the only way to ensure that your wants and needs are effectively communicated to the Court.

relocation of children after divorce

Pensions Are Marital Property Subject To Equitable Distribution


The Court of Appeals has held that vested or matured rights in a pension plan, whether the plan is contributory or not, is to be considered marital property subject to equitable distribution. The basic rational for this decision is that the money that went into the pension, during the marriage, is money that would have been given to the marriage but for the diversion to the pension plan. In distributing the pension benefits, the Court may order the employee spouse to grant the nonemployee spouse survivorship benefits. Should the Court direct this course of action, the non-employee would receive the increased benefits upon the death of the employee.

How do Courts treat non-vested pension plans? The Court of Appeals held that non-vested plans do not preclude equitable distribution. The rationale is that your right to the plan is continually accruing during the years. There are two approaches to the valuation and distribution of a non-vested plan. The first is to calculate the present cash value of the pension, with a discount since the plan has not vested. The discount will take into account factors such as the pension not actually vesting due to termination of employment or other issues which will terminate the pension. The second approach is to allocate a portion of each future payment to the non-employed spouse. The Court of Appeals suggested that the second approach is best only in the event that the present value cannot be determined.

Another concern that must be addressed is how much of the plan is subject to equitable distribution. There are cases were the marriage will terminate as a result of the divorce yet, the plan will continue to grow in value. What you can generally expect is that the Court will consider at the total amount of months from the date of the marriage to the date of the commencement of the action against the total amount of number of months of employment. Therefore, where a spouse continues to work after the commencement date, which is typical, the benefits earned after the commencement date will not be subject to marital distribution.

How is the administrator of a plan to know to make payouts to your spouse and in what amount? You will need to obtain a Qualified Domestic Relations Order, better known as a “QDRO.” The QDRO must specify the name and last known mailing address of the participant and of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each alternate payee or the manner in which the mount of percentage is to be determined; the number of payments or period to which the order applies; and each plan that the order applies to.

LEARNING POINT: Evaluating a pension plan is a complicated process which one should not attempt alone. There are many different approaches in evaluating the plan and if necessary protecting your assets. If you are getting divorced and either you or spouse has a pension plan, contact us immediately to begin preparing your case.

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Filing For Divorce: On The Grounds of Adultery


With the passage of “no fault divorce”, New Yorkers rarely need to rely on other grounds for divorce. Invariably, I have clients who want to file for divorce based on adultery. Adultery is defined as the voluntary commission of an act of sexual intercourse or oral sexual conduct with someone other than your spouse. Thus an act of sex with someone other than your spouse qualifies as grounds for divorce. Technically, Adultery is a crime. See Penal Law §255.7 where in a person is guilty of adultery if he/she engages in sexual intercourse with another person while married. Adultery is a Class B misdemeanor. This crime is rarely, if every prosecuted.

If you want to file for divorce using adultery as the basis, consider how you intend on proving your case. As most affairs are usually conducted in secret, your case may need to be made on circumstantial evidence, i.e. proof of opportunity, inclination and intent. Not an easy road to travel. What constitutes good proof? Eye witness testimony from a private investigator or another person who can be a witness to the sexual conduct between the cheating spouse. A spouse’s confession can also be used as evidence however there are some caveats to this. First, this confession must be corroborated. If the confession was made to you, that may not be enough. Your credibility will be tested during cross examination. Thus, I advise that you obtain other forms of evidence along with your spouse’s statements. In addition, you cannot force a spouse to testify. Remember, the burden to prove adultery is on the moving party. You will need to prove your case with clear and convincing evidence.

There are defenses to adultery that you should be aware. They are: (1) the offense was committed by the procurement or connivance of the other spouse; (2) You forgave the cheating spouse, which can be established by the voluntary cohabitation of the parties with the knowledge of the fact (though in today’s economic times, an argument can be made that despite knowing about the adultery, the economics would not allow one party to move out of the marital estate. I have a few clients who remain living together pending the outcome of the divorce as they simply cannot afford to move out of the house. A word of caution, if you engage in sexual intercourse while living together after the discovery of adultery, then the court might take that as proof that you have forgiven your spouse); (3) the offense happened more than five years ago, in other words, you have five years from the discovery of the adultery to bring an action and (4) where the cheating party is entitled to a divorce as a result of your adultery. In other words, you cheated on your spouse and had they filed for divorce upon discovery they would have been entitled to divorce on the grounds of adultery, then neither of you might be entitled to a divorce based on adultery.

Finally, adultery, generally, has no bearing in equitable distribution of the marriage. It is also not a factor in the determination of maintenance. Thus, I end where I began, there really isn’t an advantage in filing for divorce based on the grounds of adultery. You derive no strategic advantage in your case plus, proving adultery may be more difficult than you may have originally thought.

LEARNING POINT: If you insist on filing for divorce based on adultery, be sure you have the proper evidence lined up. Consult us immediately to begin preparing your case. Keep in mind, even if we are able to prove the adultery, it will have little to no bearing on equitable distribution and/or a maintenance award.

Joint Custody

Joint Custody In New York

Domestic Relations Law §240 grants the Court authority to award custody of a child to both parents, otherwise known as joint custody. What does this mean? If it works, it can mean equal custody. I’ve seen it done two ways. First, the parents keep the marital home and the children live in there. The parents swap in and out of the house. Second, I’ve seen it where the children split the week between the two parents. This of course normally lasts only until one of the two parents move on and begins a new relationship. Thus, the joint custody arrangement is fragile at best, even if both parents are working together in good faith. An easy example of how this arrangement may break down is if one parent needs to relocate just far enough making joint custody impracticable. In order for joint custody to work, both parents have to agree. If one party does not agree, the Court will not order joint custody especially where it can be shown that the parents cannot work together.

When thinking about joint custody, there are two components. First, there is joint legal custody. Joint legal custody refers to joint decision making in such things as health care, education, religious upbringing and discipline. Then there is joint physical custody. Physical custody is concerned with the child’s day to day residence. Thus, joint legal custody does not necessarily equate to joint physical custody.

Another way to think about this is as follows. Joint legal custody deals with life decisions for your child. Normally, absent Court intervention, you will always have a say in raising your child. You will have input on all major decisions. What you are really concerned about is residential or physical custody. In other words, where will your child sleep at night on a regular basis? Normally, the parent who is awarded residential custody will have final say on major decisions regarding the child. So, if you do not have residential custody, you still have input on major decisions however, if an agreement cannot be reached, then your ex-spouse will ultimately have the final word. All of this will be spelled out in an agreement and or Court order.

LEARNING POINT: Custody is a serious issue which can be hard to navigate, especially if parents cannot get along. While joint physical custody is an option, it is rarely used because of the difficulties in maintaining such an arrangement. Call us for a free consultation regarding what steps you need to undertake and what factors you need to consider when contemplating a divorce with children.

Modification Of Child Support


As a general proposition, child support can be modified either upward or downward, only if an unreasonable or unanticipated change in circumstances has occurred. The primary concern with regards to child support is the best interest of the children in question. Thus, even if there is a Court order, either in the form of a separation agreement which was merged into an order, or simply an order regarding child support, a parent can petition the Court for a modification. When considering whether to modify child support, the Court will consider the assets, earnings and obligations of the supporting spouse as well as the financial status of the custodial spouse. Unless there has been an unanticipated and unreasonable change in circumstances, the Court will not change the support order. Factors to be considered by the Court include whether increases of expenses were foreseeable at the time the Court originally made the support order. If the expenses were foreseeable at the time the order was decided and the Court deems that the order was fair and equitable at the time the order was made, you may not get a modification.

What will the Court use to determine if a modification is appropriate? The Court will look to: (1) whether the increased needs of the children are due to special circumstances or to the additional activities of growing children; (2) whether there is an increased cost of living which results in a greater expense for the children; (3) was there a loss of income or assets by a parent or substantial improvement of the financial condition of a parent; and (4) the current and prior life styles of the children. If after the Court considers these factors, it deems that there should be a modification of child support, the Court will utilize the Child Support Standards Act to calculate the appropriate level of child support, and whether there should be a deviation of said support. A downward modification of child support is carefully scrutinized since the primary concern is the best interests of the children. Thus, if you are attempting a downward modification, you must show an unanticipated and unreasonable change in circumstances otherwise the court will in all likelihood deny your request.

Word of caution: If you lost your job through no fault of your own, i.e. you were terminated as a result of cut backs, or your boss simply let you go, the Court will take that into consideration when calculating child support. If however, you purposefully lost your job, i.e. you quit or you took another job to lower your income and thus lower your child support payments, the Court may impute income to you. In other words, you were making $100,000.00 and you quit your job and now you are making $50,000.00. If the Court determines that you did this to lower your child support obligations, the Court may award child support award based on the $100,000.00 salary regardless of what you are currently earning. The key determination surrounding your loss of income will be how it happened. If you simply quit your job or, as in a recent case of mine, decided to follow your passion and embarked on a new career, one that decreased your salary by $40,000.00, the Court may not grant your modification request.

Learning Point: Modification of child support will be considered keeping the best interest of the children in the forefront of the Court’s mind. Adequate preparation in showing the Court that there has been a significant change in circumstances warranting the Court to modify a current order providing for child support. A downward modification will be given close scrutiny. Preparation and presentation will be crucial in your attempts to convince a Court to modify your current child support order.

New York Child Support Guidelines


In 1989, New York passed the Child Support Standards Act (CSSA). The main purpose of this legislation was to establish minimum and meaningful standards of obligations on the premise that both parents share the responsibilities for child support. The CSSA brings a sense of uniformity and predictability with child support. Child support can be generally defined as the amount of money to be paid for the care, maintenance and education of an un-emancipated child.

NY defines basic child support as the sum derived by the application of the child support guidelines formula, as increased by obligations for health, child care and education expenses. So what does all that mean? Basic child support is the regular periodic payment of support made by the noncustodial parent to the custodial parent, which payment is inclusive of the noncustodial parent’s obligations for all the child’s needs except for health care, child care, and educational expenses. The obligations for health care, child care, and educational expenses are commonly referred to as “add-ons.”

The question clients often ask is how much can I expect to pay or receive in child support? The procedure required by the guidelines which the Court will abide is as follows: First the Court will combine both parents income. A base line is used which has been recently changed. The base line was $80,000.00 however has been changed to $136,000.00. In other words, the incomes will be combined but the Court will use $136,000.00 as a baseline in its calculations in the event the combination of salaries is greater than $136,000.00 (I will discuss what happens if the combined salary exceeds $136,000.00 later).

Once the salaries are combined, that number is multiplied by the statutory percentage which is a function of how many children there are in the marriage. (The percentages are: 17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children.) Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis. Under the guideline, the only payment that is made is made by the noncustodial parent.

In the event that the combined salaries are greater than $136,000.00, the Court will use the same calculation but the Court will then decide whether an additional award based on the increased income available. All calculations, regardless of income will be based on the parties’ most recent tax return. The starting point is the gross income minus FICA. If the paying spouse is also required to pay maintenance, then maintenance is subtracted from the gross salary.

Under the CSSA, the Court is to base its calculations on the parties’ tax returns and not on its estimate or approximation as to what the parties’ incomes are. The most recent tax return is the starting point of the child support calculations. If the parties filed joint tax returns, each party must prepare a form, sworn to under the penalty of perjury, disclosing his or her gross individual income. The Court is authorized to look to the amount that a party should have been or should be reported. Distributions from pension and profit sharing plans are reportable as income on tax returns, and thus will be treated as income for CSSA purposes. Maintenance is to be deducted from the noncustodial parent’s income.

What happens if the CSSA brings you below the poverty level? Where that happens, the basic child support obligation is $25 per month or the difference between the non-custodial parents’ income and the federal self-support reserve, whichever is greater. If the non-custodial income would be reduced below the self-support reserve, but not below the poverty level, then the basic child support obligation is to be $50.00 a month or the difference between the non-custodial parents’ income and the self-support reserve, whichever is greater.

LEARNING POINT: While the guidelines are a helpful tool in figuring out child support, this is only the beginning. Add-ons, such as health care, college, child care and the like must also be factored in. Maintenance, if not permanent will change the amount paid in child support. If you are ordered to pay child support through twenty-one years of age, you may get credit for room and board fees you pay to a college which will lower your child support obligations. Seek out an attorney to assist you in determining the appropriate amount of child support.

My Spouse Wiped Out The Account, What Will Happen To My Money?


joint bank account divorce spouseI recently had a client come into my office wanting to get a divorce. Here was my client’s concern. The spouse in question, who apparently knew that a divorce was imminent, wiped out their joint marital account to the tune of $500,000.00. After this discovery coupled with the fact that my client was not informed where the money went, I was asked what will happen?!

Clearly this is a significant issue with respect to equitable distribution. On its face it is hard for a court to equitably distribute an asset that no longer exists when the action is filed. Automatic orders are meaningless as the money is already gone. Rest assured, the Court cannot and will not simply ignore this missing money. The issue for the Court to decide is whether there was any fraudulent intent on behalf of the spouse that took the money. Normally, the Court will not put itself in the position of second guessing every spending decision of the spouse accused of wiping out an account. There are a multitude of reasons a spouse may have when it comes to spending money from a joint account. Granted, in our example, a spouse will be hard pressed to explain how spending $500,000.00 happens in the routine course of daily bills. Where a spouse cannot provide an adequate explanation for what happened to the marital funds which disappeared on the eve of filing a divorce action, the Court will bestow an award based on the missing asset. Or in other words, my client needs not worry. The Court will equitable distribute the $500,000.00. This may come as credit to other assets, or an outright money award.

Rarely are cases so cut and dry. Here is a more typical example. Wife is a partner in a law firm. On the eve of filing the divorce she is fired from the firm. Husband now seeks to have her partnership evaluated as part of the equitable distribution award. The Court will need to look into the facts and circumstances of the wife’s termination at the firm. If the husband cannot show that the cfamily onduct, the firing, was aimed at depriving him of what would normally be distributed in the due course of the divorce action, the practice will not be valued and distributed.

LEARING POINT: If you realize a divorce is imminent, dissipation of marital assets will not be in your best interest. If your spouse does squander assets you will need to show that it was in an effort to cheat you out of what you’re entitled. Hire an attorney and let them advise you as to how best navigate these issues.

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What Is Child Support?

what is child support?

Child support can be generally defined as the amount of money to be paid for the care, maintenance and education of an un-emancipated child. NY defines basic child support as the sum derived by the application of the child support guidelines formula, as increased by obligations for health, child care and education expenses. So what does all that mean? Basic child support is the regular periodic payment of support made by the noncustodial parent to the custodial parent, which payment is inclusive of the noncustodial parent’s obligations for all the child’s needs except for health care, child care, and educational expenses. The obligations for health care, child care, and educational expenses are commonly referred to as “add-ons.”

The question clients often ask is how much can I expect to pay or receive in child support? The procedure required by the guidelines which the Court will abide is as follows: First the Court will combine both parents income. A base line is used which has been recently changed. The base line was $80,000.00 however has been changed to $136,000.00. In other words, the incomes will be combined but the Court will use $136,000.00 as a baseline in its calculations in the event the combination of salaries is greater than $136,000.00 (I will discuss what happens if the combined salary exceeds $136,000.00 later). Once the salaries are combined, that number is multiplied by the statutory percentage which is a function of how many children there are in the marriage. (The percentages are: 17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children.) Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis. Under the guideline, the only payment that is made is made by the noncustodial parent.

In the event that the combined salaries is greater than $136,000.00, the Court will use the same calculation but the Court will then decide whether an additional award based on the increased income available. All calculations, regardless of income will be based on the parties’ most recent tax return. The starting point is the gross income minus FICA. If the paying spouse is also required to pay maintenance, then maintenance is subtracted from the gross salary.

LEARNING POINT: While the guidelines are a helpful tool in figuring out child support, this is only the beginning. Add-ons, such as health care, college, child care and the such must also be factored in. Maintenance, if not permanent will change the amount paid in child support. If you are ordered to pay child support through twenty-one years of age, you may get credit for room and board fees you pay to a college which will lower your child support obligations. Seek out an attorney to assist you in determining the appropriate amount of child support.

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