CHILD CUSTODY & CHILD SUPPORT

Oct 26, 2018

Question #29: hello, my son lives in new york. i was told he has not been going to school he is 15yrs old, he’ll be 16yrs old in dec. if the mother does not make hime go to school will i have to pay support to her for him. will this come under without cause, he/she withdraws parental control and supervision. per new york law.

Answer: You are required to make all child support payments until you receive an order from the court permitting you to terminate such payment. You may bring a preceding in court to challenge her right to serve as residential parent based on the fact that she is neglecting the child and failing to make sure […]

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 #25: My son stays with me for six months a year and he spends the other six months with his mother. Am I required to make child support payments to the mother during the months that my son lives with me.

Answer: If you entered into a written Separation Agreement, this issue should have been addressed at that time, and I suggest you review the Separation Agreement to see if it contains any advice regarding this issue. Generally, the parties provide that in the event the child remains with the noncustodial parent for more than a […]

Oct 26, 2018

Question #24: My brother and his wife live in New York State on Long Island and have been married a little over a year. They are expecting their first child in several months. Unfortunately, things have not been working out she says she wants a divorce. She has been abusive towards my brother in a physical manner i.e. throwing things at him and hitting him as well as threatening to call the police if he does not leave their home. Reconciling does not seem possible. My brother has financially invested a lot into this marriage i.e. their home, furnishings, etc. If they get divorced, will my brother be likely to pay alimony and/ or child support in this situation. Also, she has threatened to move out of state so he cannot see the child, what if anything can he do to prevent this?

Answer: If there is a big discrepancy between the incomes of your brother and his wife, your brother will most likely be required to provide her with some form of spousal support for a short period until she can get back on her feet and develop the skills necessary to provide for her own support. […]

Oct 26, 2018

Question #23: I am currently considering a separation from my husband. I earn substantially more than he does ($70M vs. $40M). If I retain custody of the children am I still entitled to child support and how is child support calculated?

Answer: Child support is calculated based on a percentage of the total incomes of both parties; the percentage varies depending on the number of children. You could agree to a different amount for child support through a mediated Separation. The resident parent receives the child support payments from the non-resident parent regardless of the resident […]

Oct 26, 2018

Question #22: 1) How is child support allotted in NY? For 2 children, is the amount taken from the father’s weekly gross paycheck or the weekly net? 2) If we live in Mitchellama housing, would the parent who remains in the home with the children have to pay equity of some kind to the parent who leaves?

Answer: 1. The NY statute regarding the calculation for child support is complex, but for purposes of this discussion it is approximately 25% of one’s gross annual salary for two children . It can be paid weekly ,bi-weekly or monthly as the parties agree or the Court orders. 2. The ownership of the apartment must […]

Oct 26, 2018

Question #21: Is it true that if you are a NY resident and get a divorce here my former spouse cannotleave the area with our child against my will? Also, what if she leaves the state with our child before filing divorce, how can I make her come back? Basically, I don’t want to lose my child. Thanks in advance.

Answer: Generally , the Courts would not allow a custodial parent to remove a child from the general area they are living which would deprive the other parent the ability to see the child on a regular basis. If she were to remove the child before divorce, the problem of getting the child returned becomes […]

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?

Question #25: My son stays with me for six months a year and he spends the other six months with his mother. Am I required to make child support payments to the mother during the months that my son lives with me.

Question #23: I am currently considering a separation from my husband. I earn substantially more than he does ($70M vs. $40M). If I retain custody of the children am I still entitled to child support and how is child support calculated?