Child custody and child support are two of the primary parts of New York divorce cases involving children. A successful divorce is a child-centered one, where the needs of children are put before a couple's disagreements surrounding the marital home, alimony, and the division of assets. Laws vary from state to state, but in New York, judges rule in the best interest of the children, although it may not seem "fair" to one or both of the parents at the time of judgment.
Physical and Legal Custody
A family court judge will determine child custody if the parents cannot reach an agreement on their own. There are two different forms of custody in New York state: physical (residential) and legal. Both physical and legal custody can be granted to one parent, in what is known as sole custody; or, these legal rights can be jointly granted to both parents in what is called joint custody. When one parent is granted sole physical custody, the child resides with them for a majority of the month or year, excluding any overnight or extended visits with the other parent. When one parent has sole custody, this makes them the custodial parent. Legal custody refers to the right and authority a parent has to make important decisions concerning the child, including educational choices, religious upbringing, and medical decisions.
How Custody is Determined
When it comes to determining the custody of a minor child, a judge will examine multiple pieces of information before entering a Final Order of Custody. While the criteria is specific to individual cases, a judge will generally look at both parents' incomes, professional commitments like frequent travel, any previous history of drug abuse or violence, their living situations, their ages, and mental or physical health. Depending on the age of the child, the child may be able to tell the judge which parent they wish to live with. A judge will also examine the parenting history of each party prior to the divorce filing before making their ruling. Regardless of all of the factors the court can consider, the custody decision that is made will be in the best interest of the child.
Under New York state law, a non-custodial parent must pay child support to the custodial parent. A non-custodial parent who is not biologically related to the child may be required to pay support if they are a legal guardian or have acted as such while married to the child's mother.
Only once paternity and child custody have been determined, can parties address the issue of child support. Typically, the non-custodial parent will pay a percentage of both parents' income per number of children as their child support obligation. The percentages, which are attributed to the Child Support Standards Act (CSSA), are broken down as follows:
- For one child: 17% of the combined parental income
- For two children: 25% of the combined parental income
- For three children: 29% of the combined parental income
- For four children: 31% of the combined parental income
- For five or more children: No less than 35% of the combined parental income
Child support payments can be made weekly, bi-weekly, monthly, or annually. In certain situations, a custodial parent can forego the allotted CSSA amount, and instead opt to receive less per month in child support in lieu of the non-custodial parent paying for health care costs or tuition. As long as both parties agree to a special support arrangement, a judge will likely incorporate it into the Final Order of Child Support.
Brian D. Perskin & Associates, Experience You Can Trust
At Brian D. Perskin & Associates, P.C., we have built an award-winning firm that focuses exclusively on matrimonial and family law matters in New York City. We know how important the safety and security of children are to their parents, which is why we routinely advocate on behalf of both mothers and fathers in child custody and child support cases. Our attention to detail and thorough knowledge of the law allow our team of experienced family lawyers to achieve the best possible custody or support results for our clients. Call us today to schedule a free consultation.