USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Rashel Zywica, Schumann Law LLC
order, then both parents are presumed to have equal rights to physical and legal custody of the child. A New York court can issue custody orders until the child is 18 years old. Restrictions on the Court While courts in New York have broad authority to determine a child’s living arrangement and contact with parents, there are limitations with regard to grant ‑ ing custody or guardianship to extended family and non-relatives. Child Maintenance Known as “child support” in New York State, it is defined by statute as “a sum to be paid pursuant to court order or decree by either or both parents or pur ‑ suant to a valid agreement between the parties for care, maintenance and education of any unemanci ‑ pated child under the age of twenty-one years”. New York Family Court Act Section 413 (1) (b) (2); New York Domestic Relations Law Section 236 (B) (4). The Child Support Standards Act (Domestic Relations Law Section 240 (1-b) and the Family Court Act Sec ‑ tion 413 (1)) provide a formula for calculation of child support. The formula takes into account the income of both parents and the number of children being supported. The combined income is multiplied by a percentage based on the number of children: 17% for one child; 25% for two children; 29% for three children; 31% for four children; and no less than 35% for five or more children. The amount of support to be paid by a parent is determined based on that parent’s pro rata percentage of the total combined parental income. There is a statutory “cap” on income which is adjusted each year based upon inflation. When the combined parental income amount exceeds the then current cap, a court is not required to consider the total parental income for child support purposes; however, the court may use its discretion to increase the total parental income to be used for the child support calculation, which is referred to as “deviating”, by considering a number of factors set forth in the statute. Parties may come to an agreement on child support outside of court by entering into a written agreement
signed by the parties and acknowledged by a notary public. While such an agreement may be enforceable on its own, it may also be incorporated into a judg ‑ ment of divorce or be So Ordered by a court, providing additional legal remedies for enforcement. Both family and supreme courts in New York State have authority to issue child support orders. Orders issued during the course of a pending proceeding are referred to as “pendente lite” orders, while orders for ongoing or “permanent” child support generally remain in effect until the child/children reach the age of 21. A child who is not emancipated (meaning under the age of 21) may file a petition against their parents seeking a child support order. However, such appli ‑ cations are highly uncommon. 3.3 Other Matters Courts’ Power in Case of Disagreement New York courts have authority to hear applications from a party seeking decision-making authority with respect to matters affecting a child, and to issue deci ‑ sions after trial concerning these issues. Parental Alienation New York State is cognisant of the significance of maintaining a healthy relationship between a child and both parents. New York courts can make modi ‑ fications to custody and parenting access orders (or even issue contempt of court orders) in cases where a parent interferes with/frustrates the other parent’s relationship with the child/reasonable right of access to a child. In such cases, a court may appoint an attorney for the child, who will meet with the child and with each parent, and/or a forensic evaluator, who evaluates the parents and collateral sources and then issues a report. These assessments can help identify potential instances of parental alienation. There are no enumerated factors to consider per se. These matters are handled on a case-by-case basis. A custodial parent’s interference with the relationship between a child and a noncustodial parent has been
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