Custody and Visitation
This is a very common question in a family law action where a child, or children, are involved, and it is important to know that custody and visitation are not interchangeable terms, but are instead two legally different things.
CHILD VISITATION:
Child visitation refers to parenting time. That is, the amount of time one parent spends with a child. When one speaks of a child visitation schedule or arrangement, they are referring to what days, times, and with what frequency a parent is going to spend with a child.
CHILD CUSTODY:
Child Custody can really be broken down into two different types: "legal" custody, and "physical" custody.
Legal Custody vs. Physical Custody:
Legal custody refers to the right of a parent to make decisions regarding a child's health, education, and welfare. For example, decisions about what school a child will attend, what doctors/dentists/therapists a child will see, what extracurricular activities a child will engage in, what religion a child will study and practice, etc.
Physical custody on the other hand refers to a parents right to have a child live with him or her.
Sole Custody vs. Joint Custody
Legal and physical custody can each further be broken down into two forms, either "sole," or "joint," custody. Some may have heard of terms like "primary custody" or "primary custodial parent." Terms like these are legal fallacies because they have no legal meaning or significance. Terms like these are usually used to make one parent feel better about not having "joint" legal, or "joint" physical, custody. However, in reality only "sole" or "joint" custody have any legal significance and therefore implications.
If one has "sole" legal custody, it means he or she can make unilateral decisions regarding the child's health, education, and welfare. If parents share "joint" legal custody, it means that they must confer with one another in making decisions regarding the health, education, and welfare of a child.
If one has "sole" physical custody of a child, it means that parent has a right to have the child live with them. If on the other hand, parents share "joint" physical custody, it usually means the child spends relatively equal amounts of time with both parents; and if one parent wants to move and take the child with them, the parent requesting the move would bear the burden of presenting evidence to the Court as to why they should be allowed to take the child with them when they move.
Any combination of the above custody arrangements is possible. That is, one parent could have sole physical custody of the child/ren, yet share joint legal custody, or vice versa. It is important that parents work together to create a custody arrangement, and a visitation schedule, that best suits the needs of their child/ren and their family.
Child Support
The Brooke Law Firm is committed to protecting the interests of the children and fighting for fair support payments to adequately provide for them. We are also committed to ensuring that the non-residential parent is not made to pay an unfair amount of support. Speak with a child support lawyer from our firm today to discuss your situation and learn how we can help.
There are several instances where child support may be an issue:
- An initial determination of child support, either by way of an application for divorce of just for child support;
- The enforcement of a child support order when there are child support arrears due;
- A modification of a child support order, either increasing or decreasing the amount due.
- If the parties were married when the child was born, the child support can be brought even if the parties are still married. The right to support goes back to the date of the application for support.
In 1989, New York enacted The Child Support Standards Act with the goal of trying to ensure that child support awards granted were both fair and consistent from case to case. In trying to reach its goals, New York has established support awards based on a fixed percentage of the parental income and the number of children that the couple has. Percentages are based on the total income of both parents and allocated by prorating the proportion based on what each parent provides to the combined total.
Under the law's guidelines, child support is set at:
1 Child - 17% of the parental income
2 Children - 25%
3 Children - 29%
4 Children - 31%
5 or More Children - a Minimum of 35%
CHILD SUPPORT MODIFICATIONS
At The Brooke Law Firm, we understand that income levels do not always remain consistent after divorce. If one spouse loses a job, suffers an unusual hardship, or experiences a sharp rise income, child support modification may be necessary. Under New York law, there is no automatic provision for an adjustment of child support in the event that the income of one or another spouse experiences a decrease or increase in income.
Given the nationwide economic upheavals experienced in recent years, the New York legislature recently passed a law that provides for either parent to seek modification of child support under three specific scenarios:
- A parent has experienced a substantial change in circumstances;
- It has been 3 years since the support order was entered, adjusted, or last modified;
- Either party has experienced a change in income by 15% or more.
The obligation to pay remains fixed unless a modification of the child support arrangement is approved by the court, even if one parent files for bankruptcy or becomes unemployed.
FAILING TO PAY CHILD SUPPORT
If the court changes your order, it will go back to the date that you filed your petition. If you stop paying support for any reason and you don't file a petition for a modification, the amount you owe will quickly add up; the term for back child support is arrears.
If you have arrears, the child support agency will take certain actions to collect the money owed; for example, it could:
- Take your tax refund
- Intercept lottery winnings
- Take money from your bank accounts
- Suspend your driver's license
- Notify the credit reporting agencies
- Sentence you to time in jail