Divorce & Children

If you and your spouse decide to get a divorce or legal separation and you have minor children together, then you will have to make major decisions regarding them   For example, you will need to figure out where and with whom the minor children will live. The two of you should decide who will have legal responsibility for making decisions for them such as where they will attend school and who will provide their medical care.  You will also have to decide how they will be supported financially.  If you and your spouse cannot agree on these issues, the court will decide them for you. 

While a divorce (or separation) action is ongoing, the court may be required to issue temporary orders on these matters, which will be finalized when the case is over. You and your spouse must follow the court’s order on these issues until each child reaches the age of 18 (or 21 years old for child support of unemancipated children), unless you get the court to change or modify its decision. 

Child custody is the determination of where the minor children of the marriage should live and who should be responsible for them.  Often, one parent may end up with exclusive or sole custody of the minor children, and the other parent will get regular and unsupervised visitation rights, unless there is a reason (such as abuse) to limit those rights.  The parent who gets custody is called the custodial parent, and the parent who gets visitation is often called the non-custodial parent. While normally the parent with whom the child resides has legal custody of the child (the ability to make decisions regarding the raising of the child) there are instances where the parent with whom the child resides does not have the right to make decisions regarding raising the child. An agreement can allow for one parent to determine certain issues and the other parent other issues, such as education, health issues, religion and extracurricular activities of the child. 

Some courts in New York prefer using the term of “access time” instead of visitation.  If the parties are unable or unwilling to enter into a parental custody agreement, the court will usually appoint an Attorney for the Child (previously referred to in New York as a law guardian).  That attorney will represent the children and advise the court of their wishes.  Except in very limited cases due to the young age or limited reasoning ability of your children, the Attorney for the Child will represent the children’s wishes as your attorneys will represent yours.  They will only be permitted to substitute their own judgment if the child is very young or lacks the ability to coherently express an opinion. 

Child support is the amount of money a non-custodial parent must pay the custodial parent to help with the expenses of a child or children under the age of 21. If you and your spouse cannot reach an agreement, the court will determine the amount of child support using a set formula commonly referred to in New York as the Child Support Standards Act (CSSA).  This is often referred to as basic child support. Initially the Court  calculates the combined income of the parents. There is a statutory income cap which is presently $148.000 per year. The Court then determines each parent’s child support obligation based on their pro rata share of the combined income and the number of children. By statute, if there is one child, the child support percentage is 17% of the combined income, two children is 25%, three children is 29%, four children is 31% and five or more children is not less than 35% of the combined income, subject to the cap. However when the combined income is greater than the cap, the Court can consider ten statutory factors in awarding child support above the cap amount. In addition to the basic child support, there are also child support add-ons for child care, health insurance, private school (if warranted) as well as other add-ons. If the amount the formula produces is unjust, the court may award a different amount; for example, the court may adjust the amount to be paid if the basic child support amount would leave the non-custodial parent living below the legal poverty level, or in some cases where the non-custodial parent is supporting out of wedlock children. 

If you and your spouse reach your own agreement about how you want to handle issues relating to your children, the court will review your agreement to make sure it is in “the best interests of the child.”  This is because the government has an interest in the health and well-being of children residing in New York, and that interest overrides the interest of the parents, who may not be acting in the best interests of the child. However, the ability of the parties to arrange a fair agreement on their own, or, with the aid of their attorneys can eliminate the need for their children to be placed in the middle of the parents’ divorce case.  It would save the parties the potential cost of paying for the attorney for the child, and the uncertainty of having the court make a ruling that leaves both parties unsatisfied. 

Legal Editor: Andrew A. Bokser, March 2015 (updated December 2018)