Relocating With Your Child | Long Island Family Law Lawyer

After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party.  After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state.  The appellate department discussed this issue in Batchelder v. Bonhotel.

In Bonhotel, Father and Mother, never married and had one child.  They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father.  Father was entitled to see his son every other weekend and one overnight every other week.  The Father was consistent with his visitation with the Court finding that the Father and son benefitted from a close relationship.  Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure.  Father petitions the Court for residential custody of the child.

As a first step, to change the custody arrangement there must be a significant change of circumstance.  In this case, step one was easily met.   The Mother moving out of the state constituted a significant change of circumstances.  Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child.  In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.  The Court will look at the following factors: (1) the relationship with the parents; (2) the effect of the move on the noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the move; and (4) parents’ motives for seeking or opposing the move.

In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé.  With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence.  It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé.  Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father.  She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son.  Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son.   The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment.  The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother.  He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week.  As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.

In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son.  Here the Mother was actively hostile to the Father and in no way fostered the relationship.  The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse.  One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.

If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent.  In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education. If you face any problems with relocation and child custody make sure to contact a divorce attorney a Long Island family divorce lawyer at Divins & Divins, P.C. for a free consultation.

Joint Custody & Child Support in New York

Happy Children Playing Kids

Happy Children Playing Kids (Photo credit:

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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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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