CHILD CUSTODY & CHILD SUPPORT

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 #38: My husband has 2 children from a previous marriage who is now 18 and 20 years old (We live in NY). About 10 years ago they went to child support and he was ordered to pay 25% of his gross amount of earnings. Since then he has been paying faithfully to his ex-wife and has never missed a payment (he pays directly to her-not through the court) Since then they never went back to court. We now have a young son age 6 yrs old and I attend school full time and do not work. My husband and I are having a hard time with bills, etc. He barely can take care of our 6 year old, because a big chunk goes to his ex-wife. He wants me to complete my degree and at the same time support his kids from his ex-wife and us. My question is…how long does he have to pay child support in New York. His ex-wife claims that she spoke to a lawyer and he said as long as her kids are still in college he has to pay, meaning that if his kids are 25…so on…he still has a responsibility. I don’t think this is fair. New York State Law claims that at the age 18 you are an adult and at 21 you are legal to drink…which I assume that 21 is not child support…it should be called “ADULT SUPPORT”. My question is what is the Legal Age? Is it true what the ex claims?

Answer: The question of how long one has to provide child support should be specifically addressed in the parties’ Separation Agreement.If it is not, see if the Judgment of Divorce discusses the matter. Usually, parties agree to support a child who is attending college full time up till the age of 22 or until graduation, […]

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 #36: My son who is 18 quit school in January against the wishes of his Mother and I. He has since gotten a full time job but continues to live with his Mother. He will be 19 in August, I have continued to pay child support, but feel that he is old enough now to be responsible for himself. Our support agreement was never done through the courts it was just a mutual agreement between my ex and me. I plan to stop the support when my son turns 19 next month, but wonder about my legal rights to do so. I have not had any contact with my son for almost a year, which is by his choosing. I have called on a regular basis but my calls are never returned. On the occasions when I have reached his Mother her only response is that she cannot make him call me. I believe this all stemmed from my disagreeing with his choice to quit school. Any advice or help would be appreciated. We both live in NY. Thank You!

Answer: In order to properly answer your question, I would have to see the Judgment of Divorce, signed by the court. You say you do not have a “support agreement” but rather a “mutual agreement” between you and your ex. I would have to see that agreement to review, whether in fact, it discusses the […]

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 #34: Question: My Wife and I are in the process of working out a separation agreement. All seems to be going well except for the wording on higher education. Her lawyer put the wording for higher education as follows: Both parties agree to contribute reasonably toward the Child’s higher education based upon the respective financial circumstances of the parties at such time as she commences her higher education. The parties’ obligation hereunder shall cease at such time as the minor child, becomes emancipated as set forth at paragraph 14. I am concerned about who decided “reasonable”. My lawyer said a judge would decide. Does this language sound fair and is it normal in a separation agreement? I wanted it to be worded more specific as to how much each would have to contribute in order to better prepare and budget for when the time comes. Thank you.

Answer: Answer: You are absolutely correct. It is much more advisable to deal with the issue now while you are both in the talking and negotiation mood and determine exactly how much your obligations will be. Some people link the obligation to the cost of tuition at a local state run university ( such as […]

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 #32: Question: I have joint custody of my son with his father. In the agreement, we alternate who claims the child on taxes. Last year, we agreed to split time 50/50 and it is in writing in a “Memorandum of Understanding”. I have counted the nights that our son stayed at my house and I had him more than his father. Plus, this is the tax season that I can claim him. My question is do I need it in writing in our joint agreement to claim Head of Household for having more nights? Or can I claim head of household since I get to claim the boy? I don’t know how all this works. Thanks for your help.

Answer: Answer: You and your Ex must execute IRS form 8332 which you can download from the IRS document site on the internet. Get two forms, one for your exemption and one for his. In such form you should indicate that you will be alternating each year the right to claim the deduction for the […]

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 #30: I am a female, non-custodial parent. My ex has been out of work for 1 1/2 years & recently moved home with his parents. Our son, college freshman recently rented his own apartment. Is there a legal way to pay my child support payments directly to my son?

Answer: Generally, the terms of the noncustodial parent’s support obligations are spelled out in the Separation Agreement and the Judgment of Divorce. If the agreement and Judgment are silent regarding such issue, and there is a court order directing you to pay child support to your ex-spouse, in order to pay the funds directly to […]

LEONARD M.WEINER, ESQ, Ph.D.

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Question #30: I am a female, non-custodial parent. My ex has been out of work for 1 1/2 years & recently moved home with his parents. Our son, college freshman recently rented his own apartment. Is there a legal way to pay my child support payments directly to my son?