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.

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).  There are different percentages based on the combined incomes of the parents and the amount of children you have.  For example, the non-custodial parent would pay 17% of his adjusted gross income for one child or 29% for three children. 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 March 2016)

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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