LEONARD M.WEINER, ESQ, Ph.D.

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LEONARD M.WEINER, ESQ, Ph.D.

(212) 370-1660

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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 two 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 the other? How can I be protected from inflated after school care fees?  

To accurately answer your question, I would have to see the separation agreement that you signed when you initially got divorced and the judgment of divorce from the court.

Concerning the custody issue, your concern about splitting the brothers is serious, and you may be able to convince the court that they both should be transferred to you if you so wish. Your acts would then be required to provide you with child-support equaling approximately 25 percent of her income. In the event, each one retains one of the children, and the child support would be canceled out unless one child has special needs that require more funds. Remember, if you get the older child, your child, that child will reach emancipation for years before the other child.

If you question the bona fides of the after school child expenses, I suggest you demand that she send you invoices for such services from the people providing the after school service, unless your separation agreement or a court order provides otherwise.

If you are living in the New York City metropolitan area, please call May at 212-370-1660 to arrange for an appointment to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions

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