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Matrimonial and Family Law
Divorce |
Custody |
Child Support |
Visitation
Divorce
In New York, an action for divorce may be maintained on any one of the following six grounds, as set forth in the New York Domestic Relations Law section 170: (1) the cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant; (2) the abandonment of the plaintiff by the defendant for a period of one or more years prior to the commencement of the action; (3) the confinement of the defendant in prison for a period of three or more consecutive years after the marriage; (4) the commission of an act of adultery by the defendant; (5) the parties have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, provided the plaintiff has substantially performed all the terms and conditions of such decree or judgment, and; (6) the parties have lived
separate and apart pursuant to a written agreement of separation, subscribed by the parties in a form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and the plaintiff has substantially performed all the terms and conditions of such agreement.
New York does not recognize “ irreconcilable differences” as a grounds for divorce. Most of the grounds set forth in the Domestic Relations Law are fault-based grounds, with the exception of the final two grounds which permit divorce where the parties have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment or the parties have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties in a form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement. See, Domestic Relations Law section 170.
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Custody
New York Domestic Relations Law section 70 governs custody determinations and establishes that there is no presumptive right on the part of either party for the custody of a child of the marriage. The most important factor im making an award of child custody is the best interests of the child after a consideration of all the particular circumstances.
The custody determination must be made without regard to gender. Indeed, it is unconstitutional to use gender as a factor in custody disputes.
Nevertheless, Domestic Relations Law section 70 confers upon the court sufficiently broad discretion to adapt each decision to the unique facts of the case before it. Each case is decided strictly upon its own facts, thus making it virtually impossible to make generalizations. The one exception to this rule relates to domestic violence involving the parties; the court is required to take into consideration any domestic violence which impacts upon the parties or the child.
Other factors which may be considered by the court are: (1) age of the child; (2) health and special needs of the child; (3)
the capability of each parent to provide for the care of the child; (4) a history of the care
provided by each parent for the child; (5) the health and physical condition of each parent, including mental health and any disabilities resulting from alcohol or drug abuse; (6) the previous and contemplated home environments for the child; (7) educational needs of the child and the ability of each parent to fulfill them; (8) the presence or absence of members of the extended family of the child; (9) interference with visitation or the relationship of the other parent with the child; (10) religious considerations; (11) the preference of the child, depending upon the child’s age; (12) any abuses by either parent with respect to the child; (13) the effect of separating siblings; (14) the party’s intent as express in an agreement; (15) the relative nurturing care ability of each parent; and any other factor that may have bearing upon the best interests of the child.
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Child Support
New York State is governed by the Child Support Standards Act (CSSA) which is codified in New York Family Court Act section 413 and New York Domestic Relations Law section 240. Pursuant to the CSSA, the non-custodial parent is obligated to pay support in pre-determined percentages depending on the number of children the parties have, and in the proportion his or her income bears to the total combined income. This may sound confusing, but for practical purposes the non-custodial parent generally will be expected to pay the following percentages of his or her adjusted gross income based upon the number of children to be supported:
One child: 17%
Two children: 25%
Three children: 29%
Four children: 31%
Five of more children: 35% (or more)
Gross income generally includes all income, from whatever source. The adjusted gross income is calculated by subtracting FICA taxes and New York City and Yonkers income taxes, not federal or state income taxes. A simple FICA calculation often used by the courts is to multiply the non-custodial parent’s income by .0765. Accordingly, a gross income of $50,000 would be reduced by $3,825, for an adjusted gross income of $46,175. This sum would then be multiplied by the applicable percentage based upon the number of children the parties have. For example, if the parties have two children then the non-custodial parent’s support obligation would be 25% of $46,175, or $11,543.75/year. This number can be further broken down into monthly payments simply by dividing it by 12, thereby making the support obligation $961.98/month.
It should be noted that the court has discretion to deviate from the CSSA guidelines if the formula calculations result in an unjust or inappropriate measure of child support. However, the court must make specific and detailed findings setting forth the particular factors, taking into account such items as the financial resources of the parents, the physical and emotional health of the child and his or her special needs, the standard of living of the child and a host of other relevant factors.
It should also be noted that Domestic Relations Law section 32 obligates parents to support a child until the age of 21 unless that child becomes emancipated.
Finally, the Child Support Standards Act further requires that the non-custodial parent contribute his or her pro-rata share of any
non-reimbursed
medical expenses, tuition, child care, extra-curricular activities and other associated pre-college costs.
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Visitation
In New York, visitation for the non-custodial parent is deemed a privilege, and only in the most egregious of situations will visitation be denied or limited. As with awards of custody, the court is free to fashion a visitation schedule based upon the best interests of the child after a consideration of an innumerable set of factors.
Nevertheless, the court is vested with sufficient authority to impose conditions upon visitation to ensure the continued safety and well-being of the child. These conditions include - but are not limited to - restricting the location, hours, and presence of third parties.
However, the courts are generally sensitive to efforts by a custodial parent to alienate the affections of their children towards the non-custodial parent. As with custodial interference, any perceived interference with a non-custodial parent’s visitation privileges may serve as grounds for a change of custody, although this is only reserved for the most flagrant instances.
It should also be noted that a non-custodial parent’s duty to pay child support is independent of his or her visitation privileges. Simply put, the non-custodial parent’s failure to pay child support is not grounds, in and of itself, to deny his or her visitation. By the same token, a custodial parent’s denial or interference with the non-custodial parent’s visitation does not relieve the non-custodial parent of the support obligation. However, Domestic Relations Law section 241 permits a suspension of the support obligation under certain circumstances, but in no instance without making proper application.
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