Understanding Child Custody Laws

The process of formalizing or changing your custodial arrangement most often begins with filing a petition for custody and visitation in the county Family Court where your child resides. Our family law attorneys in Buffalo are available to assist you in all aspects of the child custody and visitation processes. This includes custody petitions, custody modification petitions, petitions for enforcement of orders of custody and visitation, and family offense petitions. Also, in limited circumstances, grandparents or siblings can petition for custody and visitation of children.

New York’s custody laws are designed not only to look at situations in the past but also to look at the parents’ future ability to act in the best interest of the children. Because each custody case is different, it is important to have a child custody attorney in Buffalo who understands this extremely sensitive matter and will give your case their personal attention. While each case is judged on its merits, there are certain factors the court will evaluate in determining initial custody.

Common Types of Custody

“Pendente lite,” or temporary custody, is issued once your petition has been filed with the court, but before the trial or final resolution of your case. Pendente lite translates to “pending the trial,” and it is a term usually used in Supreme Court. In Family Court, it is typically referred to as “temporary custody.” At the conclusion of your case, any pre-trial temporary orders are replaced with a final order, which may or may not reflect the temporary order.

“Physical custody” (sometimes referred to as “residential custody”) refers to where the child physically resides and/or spends their time. The parent physically residing with the child more than 50 percent of the time is deemed to have “primary physical custody” of the child and is referred to as the “custodial parent.” The non-custodial parent will often receive child visitation rights. There are various ways in which a knowledgeable child custody attorney can work with you to develop an arrangement that works for you and your child.

“Legal custody” refers to which parent has the legal authority to make major decisions involving the child, such as educational, religious, and medical decisions.

“Joint legal custody” implies an equal role in making major decisions and is not an indication of how much time the child spends with a parent. Joint legal custody allows both parents to have an equal role in making decisions, if they can work together. Equal authority also means that each parent has veto power over the decisions of the other parent. If a mutual agreement cannot be reached, sole physical and legal custody may need to be addressed.

“Shared physical custody” refers to the situation where both parents share their time spent with the children.

Common Factors in Determining Child Custody

Many factors are considered by the Court in determining child custody. Since each case is evaluated individually, there is no way to formulate a definitive list of criteria. Below are typical factors that may be evaluated:

Financial situation of each parent: Courts tend to favor a parent who can adequately provide for the children. It is important that you do not quit your job while trying to get custody. However, Courts can also impose child support orders.

Home environment of each parent: Courts try to place children in homes with safe and stable environments.

Siblings: Keeping siblings together is generally considered to be in the best interest of the children, but there are always exceptions.

The age and maturity level of parents: A matter of practicality if there is a large age discrepancy.

Alcohol and drug use: Former and current use, habits, and any convictions or related problems.

Availability of each parent: Courts tend to favor a parent who has more time to spend with the children. If you are going through a divorce and want custody, it is important to spend as much time as possible with your children. The court will look to see who was and continues to be the primary caretaker of the child.

Disability, mental, emotional, and physical health: Relevant if it impacts how well the parent can care for children. Courts prefer an emotionally and mentally stable parent.

Divorce: New York State has permitted no-fault divorce since 2012. However, a court may evaluate if the event that spurred the divorce or separation endangered the children in any way.

Relationship of parents: Courts try to place children with a parent who is willing to work with the other parent and encourage the relationship. Courts tend to avoid awarding custody to a parent who tries to impede visitation or the child’s relationship with the other parent.

Preferences of the children: Children are not forced to choose one parent over the other. However, if the child does have a preference, the court will typically place more weight on the child’s preference the closer a child is to age 18. The court will also examine the reason for the preference and whether that is in the best interest of the child. In this situation, however, it is important not to try to influence your child’s opinions about custody. Oftentimes, attempts to influence a child’s opinions concerning custody will reflect negatively on that parent.

Law guardian: The law guardian is an attorney assigned by the court to represent the children involved. This attorney is independent of both parties and has the purpose of informing the court of the children’s wishes. In cases where a child is old enough to express his or her opinion to the law guardian, the law guardian may be legally obligated to advocate for the child’s opinion in court. This is unlike the prior role of the law guardian, where the law guardian was able to substitute his or her own judgment to further the “best interests” of the children. The law guardian may give the Court a recommendation on behalf of the children.

Observable behavior: Behavior in court will be monitored closely and plays a significant factor in determining custody. Being argumentative or hostile should be avoided, while being respectful, cooperative, and reasonable is seen as more favorable.

Previous court judgments: Prior cases of child abuse or neglect are significantly relevant to determining custody. Prior criminal or drug activity may also bode negatively for a parent.

Collateral sources: Relevant counselors, school officials, or other family members may be asked their opinions as to which parent should have custody.

Voluntary custody agreements: A family law attorney could help you negotiate an agreement with the other parent. The court assumes no reasonable parent would voluntarily act against the best interests of the children. Therefore, unless there is some compelling reason, the court will honor this agreement.

Child Support

Child support refers to payments made to a parent for the children’s necessities, such as food, medical expenses, education (including private schooling, resources for special-needs children, and even college tuition), health insurance, daycare, and living expenses.

Who is Paid Child Support?

Child support is paid to the parent with primary physical custody of a child in common. In cases where the two parties are not married, the paternity of the father may need to be established in court prior to the entry of an order of support.

In cases where physical custody is shared, child support could be owed to the parent with the lower income.

Court Jurisdiction

Matters of child support are usually handled in Family Court of the County in which the children reside. However, in divorce cases, decisions regarding child support can be made in the Supreme Court in the County where the parent(s) reside.

Duration of Child Support

Typically, child support is paid until the child reaches age 21, unless the child is emancipated earlier.

Child Support Amount Determination

In New York, child support is awarded on a formulary basis, pursuant to the Child Support Standards Act (CSSA). These guidelines consider the number of children the parent has a legal responsibility to support and that parent’s income. To set a different amount, either higher or lower, there needs to be a compelling reason to deviate from the CSSA.

Modification of Child Custody in New York State

The amount of child support can be modified. The Court can increase, decrease, or end support if there has been a legally recognizable change of circumstances. Other expenses, such as daycare or health insurance, can be included in an order for child support. If either parent is experiencing extreme financial hardship, the Court may modify the order.

In addition, if the court-ordered custody or visitation agreement changes significantly, child support may be modified. The restriction or blocking of visitation is not a valid reason to stop paying child support. Likewise, if a parent is behind on child support, it is not a valid reason to stop visitation. Child support and visitation are two separate matters and serve two different purposes.

Unable to Pay Child Support

Sometimes there are extenuating circumstances where you are unable to pay your child support. Child support is court-imposed, so simply stopping child support payments can have serious consequences. To avoid possible jail time, it is best to contact a knowledgeable New York State child custody attorney as soon as possible. If you are unable to pay child support, call your attorney as soon as possible to develop a course of action. If you can properly establish extreme financial hardship, the Court may temporarily change your child support order.

The Court can order that support be taken directly out of a paycheck through the Support Collection Unit (SCU). If the support collection unit is collecting the support, a parent’s tax refund check could be held if they are behind with support payments. Moving out of state will not allow a parent to avoid paying child support. Voluntary unemployment (e.g., quitting your job) is also not a valid reason to stop child support.

Refusing to Pay Child Support

Unless there is a court order directing otherwise, child support should be paid. If you are entitled to child support and the other parent is refusing to pay, do not retaliate by withholding visitation or getting into a physical or verbal confrontation. Contact your attorney as soon as possible. If you do not have a support order but have a support agreement, a Court can help enforce the terms.

Child Support and the Military

Here at Tully Rinckey, we also understand the nuances of how employment with the military may affect your child support obligations. We understand that income for service members is reflected differently than for typical W-2 or 1099 wage earners.

Child Visitation

In many traditional parenting plans, there is only one primary residence (primary physical custody) for the children.

It is important to develop a schedule of custodial access for the other parent in order to maintain stability and security for the children. When one parent is awarded physical custody of the children, the other parent is often entitled to petition for contact, visitation, and parenting time with the children. Often, problems arise between parents with regard to visitation. It is important to retain an attorney to understand and protect your legal rights.

Because every situation and circumstance is different, it is important to work with an attorney who will provide individual attention to your matter. It is important to remember that child support and visitation are two very different matters. Even if the other parent is impeding or withholding custodial time with your children, you do not have the right to withhold child support.

Establishing Paternity

In the legal field, paternity is commonly associated with child custody, child visitation, and child support. Paternity suits can determine if a man is the biological father of a child and, thus, legally responsible. The father’s rights attorneys at Tully Rinckey understand that paternity issues can be very sensitive in nature. We have experience in representing clients in paternity proceedings.

Some of the most common cases include:

  • The mother of a child who wishes to establish paternity in order to receive child support.
  • The father of a child who wishes to establish paternity so that he may exercise his child custody and visitation rights.
  • An alleged father who may be ordered to pay support.

As determined by law, a child born to a woman during marriage is presumed to be the husband’s child. This presumes the husband has complete rights, duties, and obligations as a parent, even though he may not be the biological father. A formal adjudication of paternity can be established by the Court through the process of a paternity test and can determine what rights and obligations exist.

In cases of an unwed mother, a man may come forward and acknowledge paternity and accept responsibility for the child, or the mother may petition the court for such a determination.

When the paternity of an out-of-wedlock child is called into question, hospital records and birth certificates are not enough to establish lawful paternity. Paternity testing will be used to determine parentage. While DNA tests are considered solid proof of paternity, in some cases, the results are questionable and may be challenged.

No matter the family or matrimonial issue you face, the respectful, knowledgeable, and experienced attorneys at Tully Rinckey handle your legal representation with sensitivity and care. Our family law attorneys in Buffalo have helped countless parents in Erie County with their child custody and support matters throughout the region, including Buffalo, Amherst, West Seneca, Lancaster, Orchard Park, Grand Island, and more. We protect your rights and fight to help you achieve your legal goals. Let us represent you today.

To schedule an initial consultation with a member of our experienced team, contact us 24 hours a day, 7 days a week, at 8885294543 or info@tullylegal.com

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