Family Law

What is Child Custody?

Child Custody is governed by Article 13, § 240 of the New York State Domestic Relations Law. A Child Custody Order provides the parties with a written, enforceable decision that governs the custodial rights and obligations for the child.

As noted above, the Court’s primary focus is to consider factors that would evidence an environment in the best interest of the child. Typically, an independent attorney will be appointed by the Court to represent the child, and help provide the Court with as much relevant, unbiased evidence as possible. This ‘Attorney for the Child’ will also consider many of the same factors as the Court in recommending a course of action for the child: the suitability of each of the parents, duration and quality of each parent’s relationship, including the parent’s mental health, physical health, and ability to provide financial, special needs and emotional support for the child. The Court will review any history of domestic violence or child abuse, and any other relevant factors that may impact the upbringing of the child.

Ultimately, the Court is seeking as much relevant information as possible from all involved parties to determine a proper custody arrangement in the best interest of the child.

What is Child Support?

Child Support is governed by Article 13, § 240 (1-b) of the New York State Domestic Relations Law, and is defined as a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years.

A Child Custody Order provides the parties with a written, enforceable decision that governs the support obligations for the child. Often included in the Order is the method by which the Child Support is paid. Child Support may be paid directly, or through the local enforcement agency.

In New York, there is a standard formula for determining child support. It is important to note, however, that there is no standard formula for determining either of the parents’ income. Often, evidence is provided to the Court in order to determine each party’s income. The basic child support obligation takes into consideration the full combined gross parental income, and then apportions each parent’s obligation by their percentage of the total gross parental income.

The basic child support obligation is calculated as follows using Article 13, §240 (1-b)(3)(i) through (1-b)(3)(v):

(i) seventeen percent (17%) of the combined parental income for one child;
(ii) twenty-five percent (25%) of the combined parental income for two children;
(iii) twenty-nine percent (29%) of the combined parental income for three children;
(iv) thirty-one percent (31%) of the combined parental income for four children; and
(v) no less than thirty-five percent (35%) of the combined parental income for five or more children.

It is important to note that the Court has the authority to deviate from the above percentages, depending upon the evidence provided by either party. Additional expenses, including health care, college expenses and extra-curricular activities, may also be incorporated into the child support obligation.

Child Support – What is the “Fair” Share

In considering questions of child support, the Court must make every effort to determine the actual income and resources available to both parents to provide an appropriate level of support for the child or children. Consequently, both parties are required to fully disclose their income and assets to the Court through a financial affidavit.

Child Custody and Grandparents’ Rights

In considering questions of child custody, the Court must make every effort to determine “what is for the best interest of the child, and what will best promote his or her welfare and happiness.” Van Loon Law, PLLC provides family law representation in child custody, visitation, removal, abduction, domestic violence petitions, orders of protection, termination of parental rights, grandparents’ rights, paternity, adoption, name changes and guardianship.

Do Grandparents Have Custody Rights or Visitation Rights to Their Grandchildren?

Grandparents Rights is a relative new field in Family Law in New York. The genesis for Grandparents Right essentially began with the United States Supreme Court Decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

It is important to distinguish that grandparents seeking custody are treated very differently than grandparents seeking formal visitation.

Grandparent petitioning for formal custody must generally show extraordinary circumstances warranting substitution of the parent for the grandparent. The Courts generally prefer biological parents over grandparents, short of circumstances clearly warranting stripping the parents of custodial obligations.

Grandparents petitioning for formal visitation are subject to the same ‘best interest’ standard as parents, but typically have to show the Court an established relationship or consistent pattern of visitation. The Courts generally do not want to upset a pre-existing relationship between a child and their grandparents.

Grandparents may Petition for custody under Article 5 § 72 of the New York State Domestic Relations Law.

The statutory language of Article 5 § 72 of the New York State Domestic Relations Law permits any grandparent seeking visitation of their grandchildren to file a Petition with the Court.