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

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 and desires of a 15-year-old child, especially a child, who can express herself intelligently to the court. The court has a right to compel you to allow her to return to her mother and will, if it so the decides, grant her mother custody. If the court grants her mother custody, she can demand that you provide the 17 percent child support as mandated by the statute in New York. You can provide less than the statutory amount by agreement with the mother, and this I can help you with through the mediation process. I strongly urge you to take advantage of this possibility.

If you are living in the New York City metropolitan area, please call me at 212-370-1660 to arrange for a meeting with you and your wife to discuss custody and child support.

Leonard M. Weiner, Esq./Divorce Solutions