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How is Child Custody and Child Support Determined in New York?

A common question my clients ask is “How is child custody and child support determined under New York state law?” The answer is that the court actually considers several factors when determining the division of child custody and support, outlined below.

 Child Custody Overview

A parent may receive joint or sole physical custody of their children. Joint custody means that both parents will have some say in the decisions to be made for the children. One parent will be designated as the primary residential parent. A parent can also have sole physical custody of their child. Sole custody usually means that one parent has the ability to make the major decisions concerning the children.  In either case, specific parenting time schedules can, and should be set for the sole non-custodial parent.

Temporary custody may be awarded to both parents or to one parent on a case-by-case basis. Temporary custody orders address whether both parents will have joint or sole custody and/or legal custody over their child for a set duration of time, typically while the case is pending.

So how is child custody determined in New York? The division of child custody in New York is based on the best interest of the children. The court determines what is in the best interests of the children by considering the following factors, among others

1. The parent who has been the primary caretaker;

2. The need for stability and continuity in the child’s/children’s life;

3. The relative financial ability of each parent;

4. The quality of home environment and the parental guidance each parent provides;

5. The ability of each parent to provide for the child’s/children’s emotional and intellectual development;

6. The relative fitness of each parent;

7. The length of time the present custodial arrangement has been in effect; and

8. Depending upon the age of the child, his or her desires.

Child Support Overview

In New York, child support is paid to the custodial parent by the non-custodial parent. The amount of child support that is paid is determined under the Child Support Standards Act.

Support is determined by multiplying the non-custodial parent’s gross income (minus FICA and New York or Yonkers City tax, if applicable) by a percentage rate based on that corresponds to the number of children in which support will be provided to. If the couple has one child, 17% will be the corresponding percentage used to calculate support. Click here to view a child support percentage table.

In addition to ordering the payment of child support, the court should can also order the non-custodial parent to pay a pro rata share of the child’s healthcare and child care expenses. The court may also order that the parties share the cost of extracurricular activities.

Please note that the standards may not apply in a case where the income is very high or very low.

Modification of Child Custody & Support Orders

New York family law courts use a two prong test when asked to modify child custody orders. The party seeking to modify the child custody order must show that there has been a change in circumstances since the last custody order was issued. The party must also show that modifying the order is in the child’s best interest.

In regard to modifying a child support order, either parent can request for a modification to be made. The parent that seeks to modify the order must show the following:

1. A substantial and unanticipated change in circumstances since the prior order was issued;

2. At least three years have passed since the last order was issued; and

3. A 15% increase or decrease in either parent’s income since the original order was issued.

Factors 2 and 3 only apply to child support orders that were issued after October 13, 2010.

It is highly recommend that you consider using a mediator to help resolve any issues in dispute regarding child custody and support. A mediator can help you and your spouse/co-parent resolve any issues you have regarding the division of child custody and the amount of child support to be paid. If you are unable to resolve your dispute, the court will do it for you and you may not like the outcome.

Contact me for more information on how to begin the mediation process to draft a child custody and/or child support agreement with your spouse/co-parent. As an experienced Suffolk County divorce attorney who has handled divorces for over 22 years, I have the ability to help you determine the best course of action in your individual situation. Call 631-676-7100 to schedule a free consultation if you are seeking information about child custody and/or child support.

Sources

Child Support Standards

Child Support Standards Chart 

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