CHILD CUSTODY

Oct 27, 2018

Question #44: Nov 2006, I was granted a divorce by Nassau County in NY. I have 3 children and I am currently paying my ex-wife $2500 / month for maintenace and $2500.00/month in child support. In addition, I pay $5000.00/year towards extra-curricular activities for the children. My gross annual income before paying alimony and child support is $110,000. I have two questions, I would love to have answered. 1) Shortly after the divorce was finialized my ex-wife informed me that she was starting a county job after the New Year. (she was unemployed throughout our 15 year marriage). I don’t know what her salary is at this new job, but I can estimate that she is making about $35,000 – $40,000/year. My question is, can I petition the courts to reduce the child support payment or the $5000 extra-curicular payment? How soon can I do this? Is there a wait period with the courts since the divorce was finalised 3 months ago? 2)My children’s ages are 12(G), 9(B), and 6(B). My ex constantly complains that she doesn’t want to ‘waste’ money on a babysitter. Recently on my ex’s scheduled weekend, my daughter was participating in a dance competition in another state which my ex was attending. This was for two nights. I offered to take the two boys for the weekend, but my ex told me no since she had it under control and taken care of already. When questioned who would be watching the boys, she told me to “F” myself and that it was none of my business. I kept asking and she eventually hung up on me – never returning my calls. The next day she went off to the dance competition in another state – I drove past the house no my way home from work and no one was there. I called the house 5 times and left two voicemails, but no one answered and no one returned my calls. I then called my ex on her cell phone and left her a voicemail telling her that I wanted to know where the boys were. I explained that I just wanted to make sure they were ok. Long story short, I had to threaten her, telling her that I would call the cops since she was out of town and I couldn’t find my two boys. She then called the boys and told the oldest (9 yrs) to call me. When I questioned her about the contact details that she gave to this person watching them, she told me that “Dan (9 yr old) knows how to contact you – your number is in the book”. I never heard from my kids that night. I called their house early the next morning and my oldest son answered. My ex’s boyfriend of 3 months was watching them for the weekend. When I asked my son what number he had for me, he confirmed it was a cell which I haven’t owned in 4 years. I am truly upset that (1) she went out of town without telling me who was watching the kids (2) that she didn’t make sure that the person watching them had my contact details and vice cersa (what would happen if something went wrong with the kids and my ex is out of state??? I am very actice in their lives. I go to every (try to)sporting event, I have them every other weekend and every Tuesday. During the Christmas break I took time off from work and had them for the entire week. I was generous to my ex finiancially because I wanted to make sure the kids would be taken care of, when in fact my youngest comes with holes in his shoes. My concern is this summer. I am already paying a bunch to her and I am fearful that she won’t get proper babysitters. What can I do? What are my rights?

With regard to your first question about petitioning the court for a reduction in child support and/or spousal support, unless you have experienced a dramatic drop in income, I do not think you are going to be very successful in your efforts, but in any case , you probably should wait until the first year […]

Oct 27, 2018

Question #39: I reside in the Province of Ontario, Canada. My daughter who is 20 years of age has recently left her boyfriend of approximately 3 years. The relationship produced a son now approximately 1 and 1/2 years of age. The initial break up was initiated by the boyfriend who sent her to Canada with a letter of authorization stating that she can take their son to Canada. The question I have is: My daughter has decided that she does not want to return to an abusive relationship (the boyfriend has been verbally abusive for most of the time they have been together in front of various witnesses) and has decided that she is safer and has more family support both for herself and her son in Canada. She has no support whatsoever in New York and does not want to go back to the abusive relationship. The boyfriend has now decided he wants her back and has been harassing her constantly. What steps can my daughter take to obtain full custody of her son and does the boyfriend have any rights to “force” her to come back to New York and bring the baby back?

If your daughter was never legally married to her boyfriend she would generally be automatically granted sole custody of the child. I would have to review all of the details of the relationship and any agreements or other understandings between the parties before providing any legal advice on how to proceed. Leonard M. Weiner, Esq./Divorce […]

Oct 26, 2018

Question #37: I have a 15-year old daughter with a woman to whom I wasn’t married. My daughter spent the first nine years of her life living with her mother, during which time I paid full New York state child support (17%). Six years ago she came to live with me, my wife and two other children, based on the mutual consent of her mother and us. During the six year period my daughter has had regular visitation with her mother (alternate reasons weekends, school holidays, etc.). Her mother has paid no child support other than the costs she incurs when my daughter is with her, and for incidentals like occassional clothing purchases, due largely to a lack of funds. She has not held a full-time job at any time during the six years for health. Her mother and I have never had a formal custody agreement filed in New York (where we both live), working out our arrangements via mutual consent a best we could. My daughter is now interested in moving back with her mother for a variety of personalreasons and I have two questions: 1. At 15, what rights does she have in determining who her custodial parent will be? Could I be compelled to let her go back to her mother? 2. If she were to return to her mother, would I be required to resume 17% child support payments or could I work with her mother on a mutually acceptable support amount that is less than the 17%? Could such an agreement be made binding in court even if it were below the 17%? Any assistance would be appreciated

Answer: The courts will generally appoint an advocate for your daughter, who along with the judge would hear testimony from your daughter regarding her interest in living with her mother. Based on their response to your daughter’s request, the judge would make a decision regarding custody. The courts will give much credence to the interests […]

Oct 26, 2018

Question #35: My ex-wife and I are residents of NY State. We divorced in September 2004 and she moved upstate (85 miles) in December 2004. I live in NYC. We have joint custody and she is the custodial parent. I pay support and after school care for our children 10 and 14. The 14 year old is failing 2 classes and testing his limits, especially with his mother. She wants to send him to live with me and at this point financially, my new wife and I would have difficulty financially to house and feed him. She promises to send money, but has a poor track record of paying anyone – her own rent included. She threatened verbally over the phone that she would put him out onto the street if she had to. I told her to file papers for the custodial change of the 14 year old, but she insists that I have to do it. Also, throughout the divorce proceedings, she never provided an official after school care receipt. She had created the documents provided with inflated fees. She makes more money than I do ($75,000), and I am sure she will inflate the after school care fees even more if I take custody of the 14 year old. She will try to make up for losing a portion of the custody support she receives bi-weekly. I am also very concerned about splitting the brothers. I know she will not let go of the youngest child. What are my options? Does one support cancel out the other if I raise one child and she the other? How can I be protected from inflated after school care fees?Thank you for all your help.

Answer: In order to properly answer your question, I would have to see the separation agreement that you signed when you originally got divorced and the judgment of divorce from the court. With regard to the custody issue, your concern about splitting the brothers is serious, and you may be able to convince the court […]

Oct 26, 2018

Question #33: Question: I have been married for 8 years. My wife and I have a baby that turned one in August of this year. On July 4, 2004, I was asked to leave the martial residence and reside in our summer home. There was never an attempt to work things out or reconcile our marriage. Divorce is/was inevitable. My wife currently does not work, based on both of our decisions after the birth of our child. In the meantime I have fell in love with my best friend which has unfortunately made its way around the whole town. We have never been seen in public as affectionate but do spend plenty of time with each other. I go home at least once or twice a day to spend time with my child and have done so ever since July 4, 2004. Since the news of my affair has made its way to my wife, she has now threatened to never let me see my daughter again. I would like to know what my rights are, if in fact she can prove adultery. Does she have the right to never let me see my child, does she have the right to tell me who is allowed to be around my child and who is not? And is child/spousal support more based on a divorce by adultery? Thank you for your anticipated response in this regard.

Answer: The affair with your best friend may affect the court’s decision regarding child custody, but it should not effect either the amount of child support or spousal support that you’ll have to provide to your wife upon divorce. With regard to child visitation, unless there is some other reason such as physical abuse or […]

Oct 26, 2018

Question #31: I have been divorced since 1991. My ex-husband was cheating and wanted the divorce, however I agreeed to take the blame on the divorce decree as the one who abandoned, not knowing at the time the consequences. My daughter is now 17 and he is trying to convince her to move in with him so he won’t have to pay child support. My current salary will not suffice for me to survive. I am currently trying to finish my education and become self-sufficient. However, I owe money from not having sufficient income even with child support. He is an airline pilot making at least $200,000. /yr. Is there anything I can do? Also in my divorce decree it states that the decree is subject to change as deemed by the supreme court . Please notify me as to what I may be able to do.

Answer: The key to your problem lies with your daughter. At age 17 the court will give great weight to the testimony of your daughter and will listen carefully to your daughter and will ask her where she prefers to reside and what is motivating her to change residences. It is important for you to […]

Oct 26, 2018

Question #28: Hi. My brother is in the process of a divorce. He has served his soon to be ex wife with papers and she has sent them back. Currently the two lawyers are hashing it out. His wife has been a stay at home mom for the past 3 years and he has been working in NYC making a VERY decent income. My brother is filing for joint custody of the kids. The problem is – they are living in the same home, since his lawyer told him that if he were to move out of the home, it would be considered abandonment – and this would affect his chances of custody. Although he sleeps in the basement, they share kitchen, bathroom, and living space. The two are constantly arguing – especially over petty things. All of this is causing problems with the children. They are upset, they don’t understand and it is affecting them. My brother agrees that the best thing would be to move out of the house – this way his visits with the children would be pleasant and he and his soon-to-be-ex could start to work out a cordial and friendly relationship for the kids. He is afraid that he will be penalized. Is there anyway he could establish a separate residence without being penalized? Thanks for your help. (By the way he lives in Long Island, NY)

Answer: I cannot overemphasize the benefits of a mediated as opposed to litigated divorce. This is a prime example where the issue of living in the same premises could have been easily resolved through mediation and not force the family to go through such difficult emotional pain, especially for the children. The parties may enter […]

Oct 26, 2018

Question #27: What is the age of consent for a child in custody lawsuits in the state of New York?? At what age do they allow the child to speak what THEY want?? I have been divorced for about 3 years now – I have joint custody of my daughter, but the ex-wife has physical custody. However I do have my daughter 3-4 days a week and have never been late on any payments – pay 100% of all medical, dental, prescriptions, whatever she needs PLUS 17%…. My daughter just informed me (she is 7yrs old) that her mother was planning on moving way out of state (other side of country) and she told her not to tell me. She is planning on moving because her new boyfriend (who she is ‘engaged’ to, my daughter told me – and her mother told her not to tell me) has the ‘possibility’ of getting a job way out there. As of yet the mother does not know that I know. My daughter is scared to death that I will tell the ex that she told me these things (she is scared of her mother). I need to find out what I can do, i can NOT lose my daughter – i don’t care if I have to sell everything I own to get the required funds for whatever is needed.

Answer: Generally, the courts will not listen to the child until the child is in his or her teenage years and exhibits maturity of thought and mind. The court is, however, interested in the best interests of the child. You did not indicate whether you entered into a written, Separation Agreement prior to your actual […]

Oct 26, 2018

Question #26: I live in New York State and am considering seeking physical and legal custody of my children. Is the term “unfit mother” defined anywhere by statute or case law? if not, can you explain what may persuade a court that a mother is unfit?

Answer: There is no legal “term” for unfit mother and the courts generally look to the best interests of the child in determining who shall have custody of the child. The home environment will be investigated, whether there is a two-parent home, or just one parent, whether such parent is earning a good living to […]

Oct 26, 2018

Question #20: Last week I had my husband arrested for domestic violence and since then, I moved back home with my mother. I have a 4 yr old who at the time of the incident was downstairs with my in-laws. I decided it was better to leave my daughter with the in-laws because there was always someone home to bring/pick her up from school. I told my in-laws that I will pick her up from school on Fridays and watch her the whole weekend. Will this show as abandonment? Are my chances of having full custody good and in terms of finding a lawyer, do I have to find one within the area I now live?

Answer: Get a copy of the police report which was made when they came to your house and arrested your husband . You will need it later when you decide to file for divorce. Abandonment generally relates to leaving the marital home and refusing to live with your spouse. You have taken your daughter to […]

LEONARD M.WEINER, ESQ, Ph.D.

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Question #26: I live in New York State and am considering seeking physical and legal custody of my children. Is the term “unfit mother” defined anywhere by statute or case law? if not, can you explain what may persuade a court that a mother is unfit?