Family law is any matter involving family members that can be addressed in the Family Courts of New York State. These situations may involve married couples, formerly married couples, or parties who have never been married, such as in the case of custody and child support. Sometimes matters involving relatives will also be addressed in the New York Family Courts. You need a New York Family Attorney to guide you through the system. Our office handles any Family Court matters from petitions by the County for child neglect and child abuse to child support. Other Family Law cases can involve child custody, child support, spousal support (maintenance), orders of protection and adoption. Contact our office for a consultation to determine the best way to proceed with your Family Law matter.
Custody and Visitation
A custody trial can be one of the most stressful events for a parent to endure. There is the concern, of course, of the outcome, coupled with the effect of the trial and outcome on the children, complicated of course by the mounting costs of the litigation. During the process, both parties begin a campaign of mudslinging and life under a microscope can be stressful and exhausting for all involved.
During the court action, various applications are made for temporary custody and parenting time. The process begins when one party files a petition with the Family Court for custody or parenting time. Then the other party can cross file creating a situation where the Family Court Judge has to decide the outcome. This will be done after a hearing or trial where the Judge will hear evidence from witnesses, and view documents all of which will determine the fitness of the parent seeking custody, or time with the child.
Often there is the appointment of an Attorney for the Child, previously known as a Law Guardian. This is a court appointed attorney who will represent the children’s interests in the custody or visitation proceeding. The Attorney for the Child will meet with the children and, depending on the age of the child or children will represent the child’s desires in the outcome of the proceeding advocating for the position of the child in which parent he or she wishes to reside with.
Additionally during the matter there is often the appointment of a forensic expert chosen by the Court. This is a psychologist, social worker or psychiatrist who will meet with both parties and the children and proffer a report containing his or her findings. That expert may be called by either party as a witness to testify at the trial regarding the findings. The Court will weigh the expert’s testimony in determining which parent the children should reside with and how the parenting time schedule should work. The expert will also give testimony regarding decision making for the children.
There are multiple factors that the Judge will consider in a custody trial, all of which exist to assist the Judge in determining the Best Interests of the Child. These factors have been developed over time through New York case law. In evaluating a custody case, the Judge will look at which parent had been the primary caretaker, and for how long the current custodial arrangement had been in place; the need for stability and continuity in the child’s life; the financial abilities of the parents; the work schedules of the parents and the need for day care for the children; the quality of the environment at the child’s home; the guidance provided by each parent; the ability of each parent to provide for the emotional and intellectual development of the child; the relative fitness of a parent; in older children the Court will consider the desires of the child; the Court will look at the ability of each parent to encourage the child’s parental relationship with the other parent, fostering feelings of love and affection in the child for the other parent; siblings and relationships with other family members are considered; the Court also looks at the existence of physical or mental abuse of one party to the other, even if it does not occur in front of the children.
Once custody, even temporary custody is established by one party, that party has the right to seek Child Support from the non-custodial parent. Child Support in New York is governed by the Child Support Standards Act, which is essentially a statutory formula that takes into consideration the parents’ combined incomes, and assigns each parent a pro-rata share of the support obligation. Click here to view the Child Support Standards Act (CSSA).
The Child Support Standards Act is presumed to result in the correct amount of support. Currently, the Courts in New York will apply the parents’ combined income to the formula set forth in the Act up to the current statutory cap of $136,000. Recent legislative amendments to the Act have resulted in a Cost of Living Adjustment based on the CPI index to be applied every two years. In January 2012, the amount changed from $130,000 to $136,000. The next scheduled adjustment is January 2014. Applying income over the statutory cap in child support cases is possible, and is in the discretion of the Judge or Magistrate based on the statutory deviation factors provided in the Child Support Standards Act.
A Family Court Magistrate, or a Supreme Court Judge can order child support. Child support is payable regardless of whether the parents were ever married. Cases involving unmarried parents is handled by a Family Court Magistrate, while child support matters involving divorce or separation will be handled by a Supreme Court Justice. Once child support is ordered, payments can be made directly by one parent to the other. Payments can also be made through an income execution, where the monies are taken directly from the payor’s paycheck. Child Support is not taxable as income to the recipient. Similarly, the payor of Child Support is not eligible for a tax deduction for their payments.
Besides basic Child Support, a Judge or Magistrate can order payment of additional expenses, known as add on’s, such as unreimbursed medical expenses, extra-curricular activities, educational needs and day care. Additionally, a party can be ordered to provide or contribute toward medical insurance, and may be required to hold a policy of life insurance designed as security for child support.
Failure to make child support payments is an offense punishable as a contempt of court. If a violation proceeding is brought against a payor of child support for non-payment, that violation is presumed to be a willful violation. This means the payor has the burden of proving extenuating circumstances for non payment of support. Non-payment of Court Ordered support is punishable as a contempt of court, and a party can find their drivers’ license revoked, or even be subject to jail time in the event that they lose a violation proceeding.
Child Support Modification
Modifying child support used to be a difficult task. Even if a party responsible for child support loses his or her job, that party is still responsible to continue to look for work, or even become under-employed in order to stay on top of support payments. Courts have hardly been sympathetic to parties who did nothing to better their situation in those instances. Recently, however, the New York State Child Support laws have changed to permit modifications where there has been (1) a substantial change in circumstances, (2) three years have passed since the order was entered, last modified or adjusted, or (3) there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted. Parties can opt out of numbers 2 and 3 in an agreement, but not out of option one.
Family Offense Petitions
A party can seek an Order of Protection by filing a Family Offense Petition in Family Court, or, if they have a divorce proceeding pending, in Supreme Court. A Family Offense Petition must allege that a party committed a criminal offense against the petitioner, as that term is defined by statute. It does not necessarily have to be a physical offense, such as assault and battery, but the more serious the offense, the more strict the order of protection will be written. There are typically two types of Orders of Protection. One type is known as a “stay away” where the offending party is required to stay away from the home of the petitioner, as well as their work place, school, etc. Sometimes this Restraining Order will cover the party’s children as well, again, depending on the nature of the offense. The other type of Restraining Order issued is known as a “refrain from”. This means that the offending party is ordered to refrain from harassing, disturbing, and various degrees of contacting the Petitioner. Again, where there are children involved and a visitation schedule is in place, curbside pick up and drop off and limited contact regarding the children may be permitted by the Order.
Order of Protection
When someone harms or threatens to harm you, it may be necessary to seek an Order of Protection. An Order of Protection can be issued against a party to a Divorce by the Supreme Court, or against a family member or someone with whom you share an intimate relationship in Family Court. An Order of Protection can also be granted in a criminal proceeding. An experienced Family Law Attorney can assist you with your Order of Protection in Family Court and Supreme Court.
Click here for more information from NYCourts.gov on Orders of Protection. A party can seek an Order of Protection in a New York Family Court against a family member.
Sometimes people find themselves, or their family members, in a situation where they are under investigation because of allegations of child neglect or child abuse. In more extreme cases, the children may be removed from the home by the County and placed with a relative or in foster care. This can be the result of a contingent criminal proceeding such as an order of protection or DWI with a child in the car, or, in other cases, this is the result of a phone call to child protective services (CPS) by a mandatory reporter, such as the child’s school or therapist where there is the reasonable belief that the child is in danger of harm. If the report is founded, the child can be removed from the home until the parent/guardian performs mandatory rehabilitation as prescribed by the court. When this happens, whether you are the accused, or someone hoping to step in as a temporary guardian for the child, contacting an experienced Family Court Lawyer is imperative.