Law Offices of Rong T. Kohtz

New York Divorce and Family Law Basic Questions

The Congress and New York State legislatures have passed many laws regulating the requirements for getting married and for obtaining a divorce. Today's laws also affect couples who live together outside of marriage. It is hard to give simple answers to many of the legal questions that a person may have about marriage, parenthood, separation, or divorce due to the complexity of the statutory and case law. In addition, family law judges, who are given more freedom to exercise their discretion than any other type of judges, may decide cases with similar facts in different ways.

We can only describe New York laws and court rulings common to most cases. If you have further questions, please contact us for free initial consultation.

New York Divorce Law

• Who can file for a divorce in New York State?

• What is an uncontested divorce in New York?

• What is a no-fault divorce in New York?

• Why does the New York law provide for no-fault divorces?

• What are grounds for obtaining a divorce based on fault under New York law?

• What is conversion of a separation agreement in New York? MORE...

Annulment of Marriage in New York

• When is a marriage invalid?

• Is a marriage invalid when the parties failed to obtain a marriage license?

• What if someone thinks he or she has a genuine marriage but it turns out to be invalid? MORE...

Legal Separation under New York Law

• What is a legal separation?

• Does a person have to be legally separated before obtaining a divorce?

• What are the grounds for an action for separation?

• Is there an advantage to a legal separation? MORE...

Child Custody and Visitation under New York Family Law

• What is child custody?

• How do courts decide custody?

• What is the most important factor in deciding custody?

• May a child decide where he or she wants to live?

• If a parent is homosexual, what impact does that have on custody?

• Can custody decisions be changed?

• If a parent does not receive custody, how much visitation is he or she likely to receive?

• Under what circumstances may the custodial parent deny the other parent visitation?

• What is joint custody?

• Does a custodial parent have the right to relocate?

• What can a noncustodial parent do if the custodial parent denies or interferes with visitation?

• What legal remedies are available if a child is abducted by a parent?

• What are a stepparent's duties and rights?

• What are grandparents' rights to visitation?

• May courts award grandparents custody of their grandchildren? MORE...

Child Support under New York Law

• How do courts set child support?

• When working with guideline formulas, how are the parents' incomes determined?

• What is the New York guideline for child support based on the income of the parents?

• How does a court apply a support formula based on the incomes of both parents?

• What are reasons for ordering more support than the guideline amount?

• What are reasons for setting support below the guideline amount?

• What is the effect on child support if the parents have joint custody of the children?

• Is child support paid while the child is with the noncustodial parent for summer vacation or long breaks?

• Do divorced parents have to pay for their child's college expenses?

• How is child support enforced if a parent does not pay? MORE...

Equitable Distribution of Marital Property

• How do judges decide disputed property issues?

• What if the property obtained during the marriage is in the name of one party only?

• How does a husband or wife keep his/her property separate and thus less likely to be lost in a divorce?

• What is "equitable distribution of marital property"?

• What if the parties have a negative net worth--owing more money than they have? MORE...

Alimongy and Maintenance

• What is alimony?

• What is maintenance?

• What is rehabilitative maintenance?

• What is permanent support?

• If one spouse supports the other through graduate or professional school, does the supporting spouse have a right to be compensated for increasing the earning capacity of the other spouse? MORE...

Prenuptial Agreement and Marital Agreement in New York

• What is a prenuptial agreement?

• Why do people enter into prenuptial agreements?

• What is necessary to make a valid prenuptial agreement?

• May prenuptial agreements decide future issues of custody and child support?

• Do prenuptial agreements need to provide for a certain amount of support? MORE...

New York City Domestic Partnerships

• What is a domestic partnership?

• What are the requirements for a couple to register as domestic partners in New York City?

• When does a Domestic Partnership terminate? MORE...

Living Together with a Cohabitation Agreement

• May two people who are living together enter into agreements about sharing expenses or acquiring property?

• Will a court enforce an agreement by which one unmarried partner agrees to keep house and the other promises financial support? MORE...

Marriage Law in New York

• Are common-law marriages allowed?

• Does New York law recognize same-sex marriages?

• What is the effect of marriage on legitimacy of children?

• What are the legal restrictions for getting married?

• Is a particular type of marriage ceremony required? MORE...

Marriage Law in New York

Q: Are common-law marriages allowed in New York? A : Common-law marriage has been abolished in New York since April 29, 1933. However, New York recognizes the validity of a marriage if the couple has consummated a common-law marriage at a jurisdiction where a common-law marriage is valid before they move to New York.

Q : Does New York law recognize same-sex marriages? A : No. New York does not recognize or authorize same sex marriages.

Q: What is the effect of marriage on legitimacy of children? A: A child born of parents who prior or subsequent to the birth of such child get married is the legitimate child of both natural parents notwithstanding that the parents? marriage is void or voidable or has been or can be annulled or judicially declared void, or the marriage is a civil or religious marriage, or the parents have consummated a common-law marriage where a common-law marriage is valid.

Q : What are the legal restrictions for getting married? A : (a) Familial restrictions: A marriage may not take place in New York State between an ancestor and descendant, a brother and sister (full or half blood), an uncle and niece or an aunt and nephew, regardless of whether or not these persons are legitimate or illegitimate offspring. (b) Previous Marriages: Previous marriages must be dissolved. Information regarding previous marriages must be furnished in the application for a marriage license. This includes whether the former spouse or spouses are living, and whether the applicants are divorced and, if so, when, where and against whom the divorce or divorces were granted. A certified copy of the Decree of Divorce or a Certificate of Dissolution of Marriage may be required by the clerk issuing the marriage license. No premarital examination or blood test is required to obtain a marriage license in New York State.

Q : Is a particular type of marriage ceremony required? A : There is no particular form or ceremony required except that the parties must state in the presence of an authorized member of the clergy or public official and at least one other witness that they take each other as husband and wife. There is no minimum age for a witness. However, in selecting a witness, choose at least one person who you feel would be competent to testify in a court proceeding as to what he or she witnessed.

New York City Domestic Partnerships

Q : What is a domestic partnership? A : City of New York enacted Domestic Partners Law providing for "domestic partnerships", which can be used by couples who are living together without being married. Domestic partnerships provide some--but not all--of the legal benefits of marriage, such as:

1. Bereavement leave and child care leave for NYC employees;
2. Visitation in a city correctional and juvenile detention facility;
3. Visitation in facilities operated by the New York City Health and Hospitals Corporation;
4. Eligibility to qualify as a family member to be added by the New York City Housing Authority to an existing tenancy as a permanent resident;
5. Eligibility to qualify as a family member entitled to succeed to the tenancy or occupancy rights of a tenant or cooperator in buildings supervised by or under the jurisdiction of the Department of Housing Preservation and Development; and
6. Health benefits provided by NYC to its employees and retirees and eligible members of their family pursuant to stipulation or collective bargaining.

However, the domestic partnership law did not transform domestic partnership into any form of common-law marriage and thus did not impinge on state's exclusive right to regulate institution of marriage since there are enormous differences between marriage and domestic partnership.

Q: What are the requirements for a couple to register as domestic partners in New York City? A: A Domestic Partnership may be registered by two people who meet the following requirements:

1. Either both persons are NYC residents or at least one person is employed by the city of New York on the date of registration;
2. Both persons are eighteen years of age or older;
3. Neither of the persons are married or related by blood in a manner that would bar his or her marriage in New York State;
4. The persons have a close and committed personal relationship, live together and have been living together on a continuous basis; and
5. Neither of them is currently a party to another Domestic Partnership or has been registered as a member of another Domestic Partnership within the last six months.

Q: When does a Domestic Partnership terminate? A: A Domestic Partnership can be terminated by either party to the registered Domestic Partnership by filling a termination statement with the New York City Clerk?s offices. The person filing the termination statement must declare that the Domestic Partnership is terminated and, if the termination statement has not been signed by both parties, that the other party has been notified of such termination by registered mail, return receipt requested. Whenever one of the parties to the Domestic Partnership marries the Domestic Partnership terminates.

Living Together with a Cohabitation Agreement

Q : May two people who are living together enter into agreements about sharing expenses or acquiring property? A : Yes. The law allows people to enter into many types of contracts. If two people want to agree about who will pay what and how they will share in property that they might acquire, such an agreement can be valid and enforceable by courts in most states. From a legal standpoint, it is best to make the agreements specific and in writing. An oral agreement might be enforceable, but it is more difficult to prove. Each party to the agreement should give some benefit to the other party, such as agreeing to pay a certain portion of expenses. If an agreement looks as though it is only creating a gift from one party to the other with the recipient giving nothing in return, the agreement might not be enforceable.

Q : Will a court enforce an agreement by which one unmarried partner agrees to keep house and the other promises financial support? A : Probably not. To begin with, such agreements rarely are in writing, so they are hard to prove in court. Second, to the extent that one person is promising financial support to the other that promise usually is contingent on a continuation of the relationship. If, for example, one partner says, "I'll take care of you," the statement may be too vague to be enforceable; if it means anything, it probably means something along the lines of "I'll support you financially as long as we are living together." So, if the couple breaks up, a court probably would not find an enforceable promise for continued support. There is a potential third problem: if a court thinks an agreement amounts to providing financial support in exchange for sexual relations, the court will not enforce it. Such an agreement is uncomfortably close to a contract for prostitution. Courts are more inclined to enforce agreements for tangible items, such as payments of expenses or rights to property. A promise of housekeeping services or emotional support for a partner may be sincere, but it is much more amorphous than a promise to pay half the phone bill or share the proceeds of a condominium sale.

Prenuptial Agreement under New York Law

Q : What is a prenuptial agreement? A : A prenuptial agreement, or antenuptial agreement in New York law, is a contract entered into by a man and woman before they marry. The agreement usually describes what each party's rights will be if they divorce or when one of them dies. Prenuptial agreements most commonly deal with issues of property and support--who is entitled to what property and how much support, if any, will be paid in the event of divorce.

Q : Why do people enter into prenuptial agreements? A : Sometimes persons intending to marry use prenuptial agreements as a way of clarifying their expectations and rights for the future. Another reason for making such agreements is to try to avoid uncertainties about how a divorce court might divide property and decide spousal support if the marriage fails. A man or woman who wants a future spouse to enter into a prenuptial agreement often has something he or she wants to protect, usually money. One or both partners may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second or third time, there might be a desire to make sure that a majority of assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than a current spouse.

Q : What is necessary to make a valid prenuptial agreement? A : First, the agreements must be in writing, signed, and properly executed by the parties. This requires both that an oral acknowledgment be made before an authorized officer and that a written certificate of acknowledgment be attached. Second, the agreements also must be fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment. An agreement is likely to be invalid on the basis of fraud if one person deliberately misstates his or her financial condition. For example, if a man hides assets from his future wife so that she will agree to a low level of support in case of divorce, a court probably would declare the agreement invalid. Similarly, if one person exerts excessive emotional pressure on the other to sign the agreement, a court also might declare the agreement to be invalid because of duress.

Q : May prenuptial agreements decide future issues of custody and child support? A : Yes. A court may consider a prenuptial agreement the parties have reached regarding child custody or support, but the court is not bound by it. Broadly speaking, courts do not want parties to bargain away rights of children, particularly before children are even born.

Q : Do prenuptial agreements need to provide for a certain amount of support? A : No, the law does not set a specific amount. In some cases, a court may decide that an agreement is enforceable even if it leaves one spouse with no property and no support from the other party because New York has a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements. The courts will enforce an agreement to provide no spousal support, so long as waiver of support does not leave the less wealthy party so poor that she or he is eligible for welfare. However, New York courts will also apply broader notions of fairness and require certain spousal support despite of a waiver of support, and will not enforce a prenuptial agreement that is unconscionable. Many lawyers think it is a good idea for prenuptial agreements to contain an "escalator clause" or a "phase-in provision" that will increase the amount of assets or support given to the less wealthy spouse based on the length of the marriage or an increase in the wealthier party's assets or income after the agreement is made.

Annulment of Marriage in New York

Q: When is a marriage invalid? A: A marriage is invalid if it is void, or a court finds it voidable and annuls it.

Q: Is a marriage invalid when the parties failed to obtain a marriage license? A: A marriage will be valid even if the parties failed to procure a license to marry as long as they intended marriage and a proper ceremony was conducted.

Q: What if someone thinks he or she has a genuine marriage but it turns out to be invalid? A: Sometimes people who live as a married couple learn that their marriage is not legally valid. For example, one supposed spouse may have kept a prior marriage secret, or both may have thought incorrectly that an earlier marriage had ended in divorce or the death of a spouse. Or a marriage may be invalid because it is between close relatives, underage persons, or people incapable of entering into the marriage contract because of mental incompetence. The court will make equitable distribution of the parties? property gained during the marriage spousal despite that the marriage is invalid, and is therefore annulled. New York courts will also consider to grant alimony and maintenance in an action of annulment of marriage.

Legal Separation in New York Divorce Law

Q : What is a legal separation? A : A "legal separation" means that the husband and wife are living separately, and they have formalized the arrangement by a court order or a written agreement between themselves. The order or agreement usually will state that the parties are living separately, and it will specify arrangements regarding spousal support, child support and custody or visitation. A legal separation is not the same as a divorce. A separation recognizes the possibility that the couple might reunite. In any case, its terms can be modified by the parties or the court when the couple divorce. Most importantly, people who are legally separated may not remarry. They must wait until a divorce is final before marrying again.

Q : Does a person have to be legally separated before obtaining a divorce? A : No. A couple can proceed straight to a divorce without first seeking a legal separation.

Q: What are the grounds for an action for separation? A: New York provides five grounds for separation (1) cruel and inhuman treatment; (2) abandonment; (3) nonsupport; (4) imprisonment; and (5) adultery. Four of the five grounds are grounds for divorce, and they are substantatively the same except that the ground of abandonment must persist for one year before a divorce action while there is no such a restriction in a separation action.

Q : Is there an advantage to a legal separation? A : That depends on the needs of the parties. A legal separation offers a structure of support and custody that the parties can rely while they are waiting for a divorce (or while they are considering a divorce), and this structure usually will later be incorporated in the final divorce decree. If the terms of support and custody are part of a written agreement or court order, the parties know what to count on, and a party can go to court to seek enforcement if the other does not abide by the agreement or order.

New York Divorce Law

Q : What is a divorce? A : A divorce--referred to in some states as a "dissolution of marriage"--is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. It usually provides for division of property and makes arrangements for child custody and support.

Q : May a couple get a divorce without lawyers? A : Yes. But the complexities of property division and taxes may make it advisable for both parties to have expert legal and financial advice.

Q: Who can file for a divorce in New York State? A: To file for a divorce in New York you must satisfy one of the following residency requirements:

1. The marriage ceremony was performed in New York State and either spouse is a resident of the state at the time of filing for divorce and resided in the state for a continuous period of 1 year immediately before the filing; or
2. The couple lived as husband and wife in New York State and either spouse is a resident of the state at the time of filing for divorce and resided in this state for a continuous period of 1 year immediately before the action began; or
3. The grounds for divorce occurred in New York State and either spouse is a resident of the state at the time of filing for divorce and resided in this state for a continuous period of 1 year immediately before the action began; or
4. The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action began; or
5. If you and your spouse were married outside of New York State and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state -- either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least 2 years prior to bringing this action for divorce.

Q: What is an uncontested divorce? A: An uncontested divorce occurs when: (a) there are no disagreements between the parties over any divorce-related issues, such as child custody and support, division of marital property or spousal support; and (b) both parties agree to the divorce, or on spouse fails to appear in the divorce action.

Q : What is a no-fault divorce? A : It is a divorce in which neither person blames the other for breakdown of the marriage. There are no accusations, no need to prove "guilt." The basis for no-fault divorce is the parties living separate and apart for more than a year pursuant to a written agreement of separation.

Q : What are grounds for obtaining a divorce based on fault? A : New York permits divorce for (1) cruel and inhuman treatment; (2) abandonment; (3) imprisonment; and (4) adultery.

Q: What is conversion of a judgment of separation? A: This ground is not used often. It involves a judgment of separation signed by a Judge or Referee of the Supreme Court. To maintain a divorce action the parties are required to live separate and apart under a judgement of separation from an action for separation. The couple must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.

Equitable Distribution of Marital Property in New York Divorce

Q : How do judges decide disputed property issues? A : As a starting point, parties may keep their "nonmarital" or "separate" property. Separate property includes property that a spouse brought into the marriage and kept in his/her own name during the marriage, and the proceeds that have accrued from such a property is treated as separate property. Separate property also includes inheritances received and kept separate during the marriage. It also may include gifts received by just one spouse during the marriage. After allocating separate property, the court divides marital or property. Marital includes property and income acquired during the marriage. Wages earned during the marriage would be marital property. A home and furniture purchased during the marriage usually would be marital property. Sometimes, pension rights are also considered as marital property.

Q : What if the property obtained during the marriage is in the name of one party only? A : That too usually will be marital property if it was paid for with marital funds such as wages. For example, if a wife buys a car during the marriage and pays for it with her wages, the car is marital property, even though it is in her name only. A pension also is usually marital property, even though it may have been earned by the labor of only one spouse during the marriage. A pension can be a very significant piece of property. The pension and the family home often are the most valuable assets acquired by a couple during the marriage. But if a pension was completely earned before the marriage, it probably would be separate property.

Q : How does a husband or wife keep his/her property separate and thus less likely to be lost in a divorce? A : The main way to keep your property separate is to keep it in your own name and not mix it with marital property. For example, if a wife came into a marriage with a $20,000 money market account and wanted to keep it as separate property, she should keep the account in her own name and not deposit any marital funds in the account. She should not, for instance, deposit her paychecks into the money market account, because the paychecks are marital funds and the deposit could turn the whole account into marital property. Another example: If a husband inherits some stock from his mother during the marriage and he wants to keep it as separate property, he should open his own investment account and should not use the account for any investments that he and his wife own together. If a husband or wife decides to use some nonmarital funds for a common purpose, such as purchasing a home, that money normally will become marital property.

Q : What is "equitable distribution of marital property"? A : That means a court divides marital property as it thinks is fair. States applying principles of equitable distribution also view marriage as a shared enterprise in which both spouses usually contribute significantly to the acquisition and preservation of property. The division of property could be fifty-fifty, sixty-forty, seventy-thirty, or even all for one spouse and nothing for the other (although that would be very unusual). Under equitable distribution, courts consider a variety of factors and need not weigh the factors equally. That permits more flexibility and more attention to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable. Following are major factors that are considered when the courts apply principles of equitable distribution:

1. The income and property of each party at the time of marriage, and at the time of the divorce action.
2. The duration of the marriage and the age and health of both parties. A longer marriage may be a factor in favor of a larger property award to the spouse with less wealth or earning power.
3. The need of a custodial parent to occupy or own the marital residence and to use or own its household.
4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
5. Award of maintenance.
6. Contribution made to the acquisition of marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. Who earned the property can be a factor favoring the party who worked hard to acquire or maintain the property.
7. The probable future financial circumstances of each party. If one spouse has ill health or is significantly older than the other, that factor could favor a larger award to the sicker or older spouse.
8. The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party. If it is not practical to divide the marital property, the court will award a lump sum to one spouse instead of dividing the property between the parties.
9. The tax consequences to each party.
10. The wasteful dissipation of assets by either spouse. If a spouse wasted money during the marriage, that could count against him or her when it comes time to divide property. This factor is sometimes labeled "economic fault," and may be considered even by courts that do not consider other kinds of fault.
11. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.

Q : What if the parties have a negative net worth--owing more money than they have? A : In that uncomfortable but common situation, the court (or the parties by agreement) will divide whatever property they have and then allocate the responsibility of each party to pay off particular debts if the debts incurred for both parties benefits. Where indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, then the debts will be that party's separate liability.

Alimony, Maintenance and Other Spousal Support in New York Divorce Law

Q : What is alimony? A : Alimony is money paid from one spouse to another for day-to-day support of the spouse with fewer financial resources. Alimony may be awarded even if the recipient has economic independence. At one time, courts commonly ordered husbands to pay alimony to their former wives until the ex-wives married again or died. Today, alimony is ordered by a court on the basis of one spouse's need or entitlement and the other spouse's ability to pay. Although most alimony payments are made from men to women, it is possible that a well-off woman could be required to pay support to her economically dependent husband. Alimony payment terminates upon the time fixed by a court order or the parties' agreement.

Q : What is maintenance? A : Maintenance is paid to one spouse when he/she lacks sufficient property and income to provide for his/her reasonable needs, and the other party has sufficient property or income to provide for the reasonable needs of the other. Maintenance is usually paid at fixed intervals for a definite or indefinite period of time, but the payment automatically terminates upon the death of either party or upon the recipient's remarriage. Maintenance is awarded less often now because there are more two-income couples and fewer marriages in which one person is financially dependent on the other.

Q : What is rehabilitative maintenance? A : Rehabilitative maintenance is a common type of spousal support. It is intended to provide a chance for education or job training so that a spouse who was financially dependent or disadvantaged during marriage can become self-supporting. Rehabilitative maintenance is usually awarded to a spouse to help make up for opportunities lost because he/she left a job (or did not pursue a career) in order to help the other spouse's career or to assume family duties. It also may be awarded to a spouse who worked outside the home during the marriage, but sacrificed his or her career development because of family priorities. Rehabilitative maintenance is usually awarded for only a limited time, such as one to five years.

Q : What is permanent support? A : Courts award permanent spousal support to provide money for a spouse who cannot become economically independent. The most common reason for ordering permanent maintenance is that the recipient, because of advanced age or chronic illness, will never be able to maintain a reasonable standard of living without the support. When deciding the amount of permanent support, courts often use the same criteria as for dividing property. Sometimes, New York courts also award permanent spousal support where the marriage was of long duration, one spouse sacrificed employment opportunities for the family, and his/her earning potential is far below the standard of living the couple established in the course of the marriage.

Q : If one spouse supports the other through graduate or professional school, does the supporting spouse have a right to be compensated for increasing the earning capacity of the other spouse? A : If one spouse supported the other through graduate or professional school, the supporting spouse is entitled to a distributive award as compensation if the educated spouse's obtained enhanced earning capacity. New York courts will award the supporting spouse a part of the value of professional licenses or any other forms of earning capacity. In such a case, the enhanced earning capacity of spouse will be treated as marital property, and will be subjected to equitable distribution between the parties. The amount awarded to the supporting spouse will be based upon the contributions of the supporting spouse to the educational expenses and general support of the spouse who leaves the marriage with an advanced degree or a professional license. The courts may change or end such payments if the expected increased earnings do not occur, but the payments are not ended by remarriage of the recipient.

Child Custody and Visitation under New York Law

Q: What is child custody? A : Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child. In sole custody arrangements, one parent has physical custody, takes care of the child most of the time and makes major decisions about the child. In joint custody arrangements, both parents share in making major decisions and both parents also might spend substantial amounts of time with the child.

Q : How do courts decide custody? A: If the parents cannot agree on custody of their child, the court decides custody according to "the best interest of the child." The best interest of the child is the only consideration when New York courts decide a custody case. Determining the best interest of the child involves consideration of many factors, such as the fitness of a parent, stability and continuity of a child life.

Q : What is the most important factor in deciding custody? A : That will vary with the facts of each case. In most cases, it is who is child's the primary caretaker. If one parent can show that he/she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old). The courts aim to promote continuity in the child's life and give custody of the child to the more experienced parent who has shown the dedication to take care of the child's day-to-day needs.

Q : May a child decide where he or she wants to live? A : The wishes of a child can be an important factor in deciding custody. While the courts must consider the wishes of a child, New York courts do not consider a child's preferences determinative. The weight a court gives the child's wishes will depend on the child's age, maturity, and quality of reasons. A court is more likely to follow the preferences of a child 13 years old or older.

Q : If a parent is homosexual, what impact does that have on custody? A : None. A parent's sexual orientation does not have any impact on his/her child custody as long as the child has not been adversely affected. New York treats homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown.

Q : Can custody decisions be changed? A : Yes. A court may always change child custody arrangements to meet the changing needs of the growing child and to respond to changes in the parents' lives. A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order, and that changing the custody arrangement would serve the best interest of the child.

Q : If a parent does not receive custody, how much visitation is he or she likely to receive? A : That will vary with the desires of the parents and the inclinations of a judge. A common amount of visitation, however, is: every other weekend (Friday evening through Sunday); a weeknight (for dinner); half of the child's and winter and spring breaks; alternate major holidays; and several weeks in the summer. If parents live far apart and regular weekend visitation is not feasible, it is common to allocate more summer vacation and school holidays to the noncustodial parent. For parents who do not like the term "visitation" or "custody," it is possible to draft a custody and visitation agreement that leaves out those terms and just describes the times at which the child will be with each parent.

Q : Under what circumstances may the custodial parent deny the other parent visitation? A : Only a pressing concern and proof that visitation was inimical to the welfare of the children would justify deprivation of a parent's reasonable visitation. For example, if the noncustodial parent has molested the child, is likely to kidnap the child, or is likely to use illegal drugs or excessive amounts of alcohol while caring for the child, a court probably will deny visitation or restrict visitation. If visitation is restricted, visitation might be allowed only under supervision, such as at a social service agency or in the company of a responsible relative.

Q : What is joint custody? A : Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts. Joint legal custody refers to both parents sharing in major decisions affecting the child. The most common decisions are on school, health care, and religious training (although both parents have a right to expose the child to his or her religious beliefs). Others are on which the parents may make joint decisions include: extracurricular activities, summer camp, age for dating or driving, and methods of discipline. Many joint custody orders or agreements specify procedures parents should follow in the event they cannot agree on an issue. Joint physical custody refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be equally divided between the parents. Parents who opt for equal time-sharing have come up with many alternatives such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; alternate four-month periods; and alternate six month periods. If the child is attending school and spends a substantial amount of time with both parents, it usually is best for the child if the parents live relatively close to each other. Some parents, on an interim basis, have kept the child in a single home and the parents rotate staying in the home with the child.

Q: Does a custodial parent have the right to relocate? A: A custodial parent may relocate with the child with the noncustodial parent's permission or a court order. In relocation cases, New York courts will consider all relevant factors, including each parent's reasons for seeking or opposing move, impact of move on quantity and quality of child's future contact with noncustodial parent, and feasibility of preserving relationship between noncustodial parent and child through suitable visitation arrangements. Relocation restriction included in parties' separation agreement might be additional fact or relevant to court's.

Q: What can a noncustodial parent do if the custodial parent denies or interferes with visitation? A: If a custodial parent denies or interferes with the noncustodial parent's visitation rights, the noncustodial parent may suspend and cancel maintenance and alimony payment. The noncustodial parent may seek a court order to suspend child support as well.

Q : What legal remedies are available if a child is abducted by a parent? A : Abduction of a child by a parent is a crime under federal law and the laws of most states. Local police, state police, and in some cases the FBI can help in locating missing children. Parents who abduct their children also can be forced to pay the expenses incurred by the other parent in trying to find and return the child. To recover such expenses, a parent usually would need the help of a private attorney.

Q : What are a stepparent's duties and rights? A : The responsibilities of a stepparent depend on state law. A stepparent usually is not liable for a spouse's children from another marriage, unless the stepparent has adopted the children. Until then, the children's biological parents are liable for their support.

Q : What are grandparents' rights to visitation? A : New York law allows grandparents to seek visitation with their grandchildren when both or either parents deceased, or under equitable circumstances such as a parent-like relationship between the child and the grandparents. However, in June 2000, the United States Supreme Court issued a ruling that will make it more difficult for grandparents to obtain court-ordered visits with their grandchildren. In the case of Troxel v. Granville, Justice O'Connor ruled: "[S]o long as a parent adequately cares for his or her child (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." The scope of the Supreme Court's decision is uncertain. The Court certainly believed that parents should be given more deference on decisions with whom the child will associate than was provided by the state law. The Court, however, left open the possibility that some grandparents would be entitled to obtain court-ordered visitation. Such visitation might be allowed, for example, if the grandparents can show that they had a particularly strong relationship with their grandchildren, such as perhaps when the grandparents had raised the grandchildren for a number of years before primary custody of the children returned to the parents.

Q : May courts award grandparents custody of their grandchildren? A : Yes. New York courts may award grandparents custody of their grandchildren when both or either parents deceased, or under certain extraordinary circumstances. The legislature finds that, with 413,000 children living in grandparent headed households in New York state, grandparents play a special role in the lives of their grandchildren and are increasingly functioning as care givers in their grandchildren's' lives. In recognition of this critical role that many grandparents play in the lives of their grandchildren, the legislature finds it necessary to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren. New York enacted a law in 2003, providing that grandparents can receive custody if they take care of the grandchildren at the grandparents' household for a long period of time.

New York Child Support Law

Q: How do courts set child support? A : Under federal law, all states must have guidelines by which courts determine child support. The guidelines were established because variations in the amounts of support set in similar circumstances were considered to be too wide and because child support, in many cases, was considered to be too low. The guidelines are formulas that consider the income of the parties, the number of children, and perhaps some other factors. The formulas are based on studies of how much families ordinarily spend for child raising. The formulas try to approximate the proportion of parental income that would have been spent for support of the child if the family had not been divided by divorce. Courts plug numbers into the formula and come up with an amount of support that should be paid for the child or children. The parties can argue that because of special circumstances, a court should order more or less support than the guideline amount. 

Q : When working with guideline formulas, how are the parents' incomes determined? A : States use the parents' net income or gross income. New York uses parents' combined gross income. Gross income is the parents' income from all sources, including wages, investments, and other sources. For self-employed persons, the determination of income may be complex. Courts will allow deductions of reasonable business expenses before determining income. But courts may disallow unusually high business expenses and depreciation that reduce income artificially without hurting the parent's cash flow. Thus, certain expenses that are deductible for tax purposes may not be deductible from income for the purpose of setting child support.

Q : What is the New York guideline for child support based on the income of the parents? A : Here is the "percentage of obligor's income" guideline adopted by New York:

Number of Children             1             2             3             4             5 or more

Percent Supporting party's gross income                          17%                          25%                         29%                         31%                         35%

The percentage guideline only applies to the first $80,000 of the parents' combined income to decide the basic child support obligation. When the parents' combined income exceeds $80,000, courts will determine an adjustment over the basic child support. The court will probably consider whether the percentage guideline should apply to the amount exceeding $80,000, or the court should determine an amount based on other factors such as the child's current standard of living, and the tax consequences to the parties.

Q : How does a court apply a support formula based on the incomes of both parents? A : New York support guidelines are based on the incomes of both parents, referred to as "income shares models." The court first adds the gross income up to $80,000. Then the court consults a long table--or computer program--which assesses the total obligation of support as a percentage of the combined incomes and the number of children. The court multiplies the combined incomes by the percent figure and obtains a dollar amount that the child or children are considered to need for support. Then the responsibility to pay that support is divided between the parents in proportion to each parent's incomes.

Q : What are reasons for ordering more support than the guideline amount? A : This will vary from case to case. But some common reasons for giving support above the base guideline amount include: child-care expenses, high medical or dental expenses of the child that are not covered by insurance, and voluntary unemployment or underemployment of the parent who is supposed to pay support. Expenses for summer camps and private schools also might be a basis for setting higher support levels, particularly if private schools or summer camps were part of the family's lifestyle during the marriage.

Q : What are reasons for setting support below the guideline amount? A : Again, this can vary from case to case, but common reasons for setting support below the guideline amounts include support obligations from earlier marriages and large debts to pay off (particularly if the debts are related to family expenses). If the support guidelines are based on the income of only the noncustodial parent and if the custodial parent has an unusually high income, then the noncustodial parent can argue that the custodial parent's income is a reason for setting support below the guidelines.

Q : What is the effect on child support if the parents have joint custody of the children? A : That depends on the nature of the joint custody arrangement. If the parents have joint legal custody (by which they share in making major decisions regarding the child), that will have little effect on child support. If the parents have only joint legal custody, one parent still has primary custody of the child and handles payments of most of the child's day-to-day expenses. The custodial parent's expenses for the child have not been reduced by the joint custody arrangement. If the parents have joint physical custody and the child spends a substantial amount of time with each of parent, support might be set at less than the guideline amount since both parents are likely to handle day-to-day expenses for the child. (Parents, however, will need to coordinate payments on major expenses such as camp, school, clothing, and insurance).

Q : Is child support paid while the child is with the noncustodial parent for summer vacation or long breaks? A : In most cases, yes. Courts figure that many major expenses for the benefit of the child--such as rent, mortgage, utilities, clothes, and insurance--have to be paid whether the child is with the custodial parent or not. So, usually, a full support payment is due, even if the child is with the noncustodial parent. On the other hand, the parties themselves (or the court) are free to agree on payments in different amounts during vacation periods when the child is with the noncustodial parent. The lower amount for vacation periods with the noncustodial parent might reflect savings to the custodial parent for food expenses or childcare.

Q : Do divorced parents have to pay for their child's college expenses? A : Yes. New York requires parents to provide care, maintenance and education of any unemancipated child under the age of twenty-one years. In most cases, parents will have to pay for a child's college expenses unless the child goes to college when he/she is 21 years old or older. Regardless of the state's law on compulsory payment of college expenses, the mother and father can agree as part of their divorce settlement to pay for these costs. Courts usually will enforce those agreements.

Q : How is child support enforced if a parent does not pay? A : The state and federal governments have a variety of techniques for enforcing payments of child support. The most common is a wage deduction, by which the employer sends a portion of the parent's wages to a state agency which then sends the money to the parent who has custody of the child. A federal law requires that after 1994, all child support orders must provide for an automatic wage deduction unless the parties have agreed otherwise or unless a court waives the automatic order. The state also can intercept the federal and state tax refunds of persons who have not paid support. Liens can be placed on property, such as real estate and automobiles. A parent who has not paid support can be held in contempt of court, which may result in a fine or a jail term. In addition, a parent who has not paid support can lose his or her driver's license or professional license. State's attorneys or district attorneys may help with collection of child support, though their efficiency varies from district to district. Child support enforcement is a matter of increasing federal concern. Under the Child Support Recovery Act of 1992, it is a federal crime to willfully fail to pay child support to a child who resides in another state if the past-due amount has been unpaid for over one year or exceeds $5,000. Punishments under the federal law can include fine and imprisonment. A parent may not reduce child support payments without a court order: the unpaid amounts will accumulate as a debt, even if a court later decides that there was a good reason for the reduction.