As parents, we all want to ensure our children have fulfilling lives with as little disruption as possible. When a couple decides to divorce, it’s important to address the effects on children and from a legal perspective, it’s important those issues are resolved in a way that benefit those whose voices are often not heard. This week, we take a look at some of the more common questions that our clients ask. Keep in mind – every case is different. What follows are simply the foundation that devise the laws. We encourage you to contact us with any specific questions or to schedule a complimentary consultation so that your unique needs are addressed.
The most obvious question is, “Who gets custody?” In many instances, the couple is able to reach an agreement that benefits all of the family relationships. The good news is that the law does not limit the efforts of parents who are trying to find the right solution.
If there’s a disagreement on these issues, your attorneys will work in the best interest of the children and the courts will also base custody decisions by also applying the standard of what is in the best interests of the child. In the large majority of cases, there will usually be some type of shared custody.
Also, in some instances, those factors can include the spoken position of the child(ren). Their input is valuable; however, it’s important to keep in mind that while they have a voice in the proceedings, they do not have a vote. Of course, they older they become, their voices will hold more significance.
Joint Custody or Sole Custody
Joint legal custody (sometimes referred to as shared physical custody) means both parents continue to discuss and agree on the major decisions in their child’s life. It might include medical decisions, religious choices, where the child attends school, any extracurricular activities and more. They also typically have an even split in terms of time spent with the children. If a parent will maintain more than one half of the custodial time with the child, he or she will have primary physical custody, which will also give that parent some decision making authority if the parents are unable to agree. It could also equate to certain tax benefits.
Sole legal custody simply means one parent makes those decisions on behalf of the minor children. The other parent will have limited time – if any – with the children.
Many clients assume that if parents share custody, it eliminates the child support factor. Under New York’s Child Supports Standards Act, child support must be paid by the non-custodial parent to the custodial parent based upon the formula set up by the State, which is a percentage of your gross income after deductions for your FICA withholdings (which is 7.65% of your income). The non-custodial parent is the parent who has less than 50% of the physical custodial time with the child.
Note: If parents have an absolute 50/50 split of physical custody with the child with no distinction over who might have slightly more than 50%, then the parent whose income is higher is determined to be the non-custodial parent and must pay the other parent child support. The exception: if parents agree to waive child support from each other, it can arranged that way in your legal proceedings.
These are just a few of the many dynamics associated with child custody, child support and visitation laws in New York. Again, we encourage you to speak with a qualified family attorney who can provide legal guidance as you go about the business of ensuring your children’s needs are being met.
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