What happens after I file a petition to modify a custody order?

 

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Once a petition to modify a custody order is filed, the court will schedule a “show cause hearing.” Once the show cause hearing is scheduled, the court will order the responding party, the party that did not file the petition, to appear and provide a satisfactory explanation to the court. Put another way, the order directs the party to appear in court and explain why the party acted or failed to act, and why the court should or should refrain from granting the requested relief.

After hearing both sides on the particular issue, the court may order the relief requested by the moving party. Alternatively, the court could also find there is no basis for the relief. In some situations, where a party willfully and repeatedly violates a court order, the court could even find one party to be in contempt of court which could result in fines or even imprisonment.

Can a temporary child custody order become permanent?

Although a temporary custody order is perceived as a quick-fix before a final custody order, often times, the temporary order becomes a permanent custody order. For example, if the parties cannot agree to a custody arrangement, the court will schedule a trial where the parties will present evidence to persuade the court who would be the better caretaker for the child. In the meantime, during the trial and while the court makes the determination, time invariably passes and the current temporary arrangement provides a more stable environment. As time passes, the child is inclined to become attached to a specific school, activities, and friends. All of this, makes it tougher to persuade the court that disrupting the stability and continuity the child has experienced is in the child’s best interests. Essentially, the parent who is awarded temporary custody has a “home-field” advantage against the opposing parent. For this reason, a proceeding to determine temporary custody should be taken very seriously and a parent should not voluntarily surrender the temporary custodial rights without taking the time to consider all factors involved.

In determining the amount of child support, what sources of income will the court consider?

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Courts in New York will consider available income through a variety of sources including wage and salary income and other compensation for personal services (for instance, commissions, overtime pay, tips, and bonuses); interest dividends and royalty income; self-employment income; net rental income (rent after subtracting operating expenses and mortgage payments and not including depreciation); and other income received (for example, severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

New York courts will also likely consider “deferred earnings” to be sources of income for the purpose of establishing the proper amount for the child support payment.

Courts have some discretion in determining whether the value of a gift is considered for child support payments. In several cases, in jurisdictions outside of New York State, courts have found that gifts are considered in calculating child support payments. New York courts may or may not agree with the reasoning in this line of cases. As a general matter, New York courts will consider many different sources of income. For this reason, it is very important to consult an attorney to determine the best course of action in a child support case.

 

What is a Marital Settlement agreement?

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Once you and your spouse agree to seek a divorce, and you have agreed on the sticky issues such as property rights, spousal and child support, and custody and visitation, the marital settlement agreement puts the agreement in stone.

A marital settlement agreement is usually sought at the beginning of the process. Iit is best to complete the agreement before filing the action for divorce. Later, after the divorce process is initiated with the Summons with Notice, the marital settlement agreement is filed with the court and becomes part of the divorce judgment.

In some cases, after the action is commenced, one of the parties may start to question the agreement. In such cases, it is important to maintain communication lines with your attorney and make sure the agreement is in your best interest. On the other hand, in almost every agreement, there will always be aspects that a party does not like.

Finally, a marital settlement agreement is a great idea because it reduces some of the stress that comes with ending your marriage. At such a time, it is normal to feel a whirlwind of emotions and uncertainty. With the marital settlement agreement, you can at least begin to imagine what life will be like in the future and take comfort in the fact that everything will be ok.

Will the court consider the wishes of the child in custody matters?

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Generally, New York courts will consider the wishes of the child as to his custodian. However, the court may determine whether the child is old enough, both in age and psychological maturity, to express a meaningful preference. Although age is not the singular consideration determining custody, teenagers are generally consulted.

When a judge, in a New York, does consult the child, generally, the judge will evaluate the reasons possibly motivating the child’s preference. In some cases, a judge may decide the child’s preference is not based on sufficiently reasonable considerations. For example, in a case outside of New York’s jurisdiction, a judge determined a 14 year old boy’s preference was not worthy of consideration, where the child based his preference on his father allowing him to wear his hair longer and stay out later.

When courts consider consulting with the child, the judge has two options. First, the judge may interview the child in chambers and on the record with the attorneys present, or the court can seek the advice of a professional who can submit a written report to the court. In either circumstance, the court will be cautious to avoid undue parental influence or coercion on the child being interviewed.

Visitation Schedules

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In New York, once visitation is deemed appropriate, the court will create a visitation schedule based on the best interest of the child standard. Generally, the non-custodial parent will have visitation with the child every other weekend. Based on a variety of factors, including the age of the child, these visits may or may not be overnight visits.

The non-custodial parent generally has an overnight or dinner visit with the child at least one day per week. Ordinarily the custodial and noncustodial parent will alternate school holidays. In the summer months, when the child is not attending school, the non-custodial parent may have extended visits of a week or more with the child.

For more information on visitation in New York, check out the New York Bar Association’s website. 

Restrictions on Parenting Time

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In New York, courts rarely will deny a parent the right to see a child. However, with the proper showing, New York courts will place restrictions on the exercise of parenting time. For instance, a parent may only have contact with a child in a supervised setting. In such a setting, the supervised visits may take place at a visitation center with professional staff, or the supervision could be more informal in a setting with friends or family.

Generally, when supervised parenting time is ordered to take place at a visitation center, the case usually involves circumstances where a child was severely traumatized. These cases usually involve children who have been abused or neglected, have witnessed domestic violence, have lived with a mentally ill parent, or have been abducted.

In order to place restrictions on a parent’s right to parenting time, a New York court must find that visitation would seriously endanger the child’s physical, mental, moral, or emotional health. In other words, proof beyond mere allegations is required.

What is Equitable Distribution?

 

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A court will look at all the relevant factors and distribute the marital property according to a sense of fairness based on the unique facts and circumstances of the case. Courts in New York have great discretion in distributing marital property. As a consequence of this discretion, it is important to have an attorney who sheds light on the most important facts in your case.

In determining what fairness requires, courts in New York are not required to divide marital property equally. Instead, courts focus on fairness.

In a case almost two decades ago, Schiffmacher v. Schiffmacher (2005), a court in the New York Appellate Division held that the wife was properly awarded 70 percent of the value of the marital savings and investment accounts because the husband had better future income prospects given his advanced degrees. In other words, the husband was awarded substantially less marital property beause the court reasoned that he was more likely to “make up” the money in the future. In contrast, the wife had more limited prospects which compelled the courts to provide her with enough to compensate for her more modest future income.

In many cases, however, New York courts do distribute marital property in a close to equal manner. In one New York case, Lipovsky v. Lipovsky (2000), the New York Appellate Division held the property was appropriately distributed where it was in an equal manner. In this case, the court emphasized that in long-term marriages property should be distributed equally. Specifically, the New York court stressed that both New Yorkers made significant contributions to the marriage. For instance, the husband had worked long-hours while the wife had taken care of the home and raised the children. The contributions of both parties led the court to conclude that an equal distribution of the marital property was necessary.

College visits and reducing Culture shock

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Oftentimes, if students from underprivileged communities are unable to visit a college campus while in middle-school or high-school, even if the student reaches higher education, students are susceptible to dropping-out. In fact, according to this study, during the first year of college, economically disadvantaged students often experience a “culture shock”   Students describe culture shock as feeling different and unable to connect with people or the college environment. As a result, disadvantaged students are more likely to drop-out and less likely to take advantage of college resources or participate in college life.
Culture shock’s driving force, is the vast difference in cultural norms on a college campus compared with the community a disadvantaged college student is from. Specifically, students from segregated neighborhoods with crime, joblessness, and poverty are susceptible to culture shock.

However, research also shows that visiting a college campus can help students adjust to the environment by learning critical cultural norms. Unlike students from privileged communities, economically disadvantaged students are often unable to visit a college campus. This explains that to expand access to young people growing up in economically disadvantaged communities, students must be physically brought to the college campus to adjust to the unique cultural norms.
Yet such intervention must do more than bring the students to a college campus. Critically, the program must be stable and consistent  In other words, the volunteers must show up regularly and on time. Furthermore, everyone involved must buy in to the program’s ideals. Programs must also cultivate partnerships from year to year.   This is particularly important in the present climate where funding cuts cast uncertainty on even the most effective programs.  Without proper funding, a program will fail regardless of the many dedicated volunteers.
Another consideration must be the targeted grade level (or age) for the intervention. According to research, the proper age to begin bringing students to campus is fifth grade, at the earliest, and seventh grade, at the latest. Interventions beginning in high-school have generally proven less effective. However, offering high-school courses in a university setting, as a supplement to the college visits program, has led to positive results.

If I am unemployed will I still have to pay child support?

 

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If a parent is unemployed or underemployed, some courts in New York “impute” income to the parent and tailor the child support based on the imputed income. For example, if a parent living in Geneva is out of work and looking for work, a court may impute the parent’s income to be equal to the minimum wage in the State of New York. Courts may also impute the income based on recent work history, occupational qualifications, and the prevailing community earnings levels. For instance, a court may look at the average income of residents in Ontario County and order child support based on that amount.
Because courts in New York have so much discretion in these cases, it is critical that attorneys make quality arguments which shed light on the critical facts concerning the case at hand.

If a parent is voluntarily unemployed or underemployed, on the other hand, a court may base the child support amount on the net income the parent enjoyed prior to voluntarily becoming unemployed or taking a position which resulted in underemployment. For example, following a divorce, if a man leaves a high salary job in New York City for more modest employment in Canandaigua, a court may order the child support payment to be based on the man’s New York City salary because he voluntarily left his position.

My ex-spouse is refusing to pay child support. Can I deny him visitation with the children until he resumes making payments?

In New York, the custodial parent cannot deny the non-custodial parent his or her parenting time because the non-custodial parent has not paid child support. In a New York case, Matter of Stewart v. Soda (4th Dept. 1996), the court held that visitation cannot be terminated solely because a parent fails to pay child support. The court emphasized that “visitation cannot be terminated solely for reasons unrelated to the welfare of the child.” Therefore, terminating visitation due to a failure to pay child support it is an “insufficient basis” to deny visitation.

The New York court’s reasoning is rooted in the belief that child support and visitation are separate issues. This distinction is based on the idea that parenting time is ordered because it is in the best interest of the child to promote love and affection with both parents. When the parents have difficulty managing the visitation schedule laid out in the court order, the appropriate remedy is to seek the assistance of the court. Alternatively, if the non-residential parent is not paying child support, the appropriate remedy may be to garnish the amount directly from the non-residential parent’s paycheck. Put simply, the court does not want to encourage parents to engage in “tic for tac” exchanges which may ultimately harm the children.