Child Custody & Support in New York State

//Child Custody & Support in New York State

Child Custody & Support in New York State

In a divorce, one of the most contentious issues can be custody of the children. It is important that both parties fully comprehend the types of custody that exist and what each of them entails so that they can determine what will suit them and what will benefit their children most. Sometimes clients have questions about how the various types of custody affect child support, and it is vital for parties to understand this as well so they do not choose a custody plan based on false expectations. An example would be that no one will have to pay child support if there is joint custody.
In New York, there are several types of custody – true joint custody, joint custody with a residential parent, and sole custody. True joint custody, while possible, is unusual. In this case, the child would spend an equal amount of time in both homes. Logistically, this is only possible if both parents live near each other and have schedules that allow for each of them to care for the child in equal proportions. The two parents also need to be able to work together to ensure that although the child lives in two homes, all homework is completed, appointments are scheduled and kept, etc. This kind of coordination is difficult when parents live together, never mind in separate homes, possibly with new spouses. While it can work, I have found in my practice that even with the best of intentions, the amount of time spent at each parent’s home can eventually become disproportionate. Another method gaining popularity is “nesting.” “Nesting” is where the children remain in one home and each parent moves in for their parenting time. This require a lot of money, as each parent needs a home in addition to the home for the children.
Joint legal custody with one parent being the “residential” parent is the more usual, and frankly, the more practical scenario. This type of custody entails the child regularly living with one parent and the other parent having liberal visitation or “parenting time”. Both parents share equally in making decisions about the child’s health, education and welfare. Normally in an emergency, whichever parent the child is with at the time will make any decisions and then inform the other parent.
Sole custody is when only one parent has the authority to make decisions regarding the child’s health, education and welfare. This is usually put in place when the parents cannot get along well enough to make joint decisions about and for their child, or if one parent is incapacitated for whatever reason. In this scenario, one parent would be able to unilaterally choose a school, choose a caregiver, etc.
In terms of custody in relation to child support, New York State law makes it almost impossible to get out of paying. In the case of sole custody, the non-custodial parent would certainly have to pay child support. When there is joint custody with one parent being the residential parent, the non-residential parent pays child support to the other parent, and the custodial parent is expected to pay their share of expenses for the child as well.
Here is the kicker – even in a scenario of true joint custody, the law in New York courts has held that child support must be paid. There are two cases on this point, Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 [3d Dept. 1998], and Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]. Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent,” and Baraby made clear that the parent with the substantially higher income does have to pay child support.
So to sum up, if you feel that your children would benefit from joint custody, and that you and your ex can get along well enough to have that arrangement, I see no reason why you should not. An attorney can help you make an informed decision so that you can create the best possible outcome for you and your family.

By | 2017-01-13T14:59:48+00:00 September 15th, 2016|Divorce Law|0 Comments

About the Author:

Deborah E. Kaminetzky
Deborah E. Kaminetzky is the founder of Kaminetzky Law & Mediation, P.C. located in Long Beach, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Chair of the General, Solo and Practice Management Committee and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012 and Leadership award honoree in 2019. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.