USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Lindsay R Pfeffer, Rabin Schumann and Partners LLP
3.2 Living/Contact Arrangements and Child Maintenance Application to Court Either parent can file an application seeking a court order regarding the child’s residence and parenting access time, including the implemen - tation of a parenting access schedule. There is no automatic right to primary custody in either parent. The courts’ determination of such appli - cations is dictated by the “best interests of the child” standard. The “best interest of the child” test means that the courts are required to balance the ability of each parent to meet the needs of the child or children. The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors. Courts will make a finding on custody based on the totality of the factors. These factors can include whether one of the parents has been the primary caretaker of the child, stability, the existence of any substance abuse issues, domestic violence, physical health of each parent, any history of abuse or neglect, and any interference with the parenting rights of the other parent. In matters where one par - ent has primary custody rather than joint cus - tody with the other parent, the custodial parent is expected to encourage and foster the child’s relationship with the non-custodial parent. A child’s preference may also be taken into con - sideration, depending on the age of the child. Legal Approach to Custody and Parental Responsibility New York courts make custody decisions based upon the “best interest of the child” standard. If there is no court order, then both parents are deemed to have equal rights to physical and
legal custody of the child. A New York court can make orders concerning custody until the child is 18 years old. Restrictions on the Court There are no restrictions on the court’s ability to make an order as to a child’s living and contact arrangements with regard to parents, but there are restrictions with regard to making orders relating to extended family and non-relatives seeking custody and/or guardianship. 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 par - ents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years”. New York Family Court Act Section 413 (1) (b) (2); New York Domestic Rela - tions Law Section 236 (B) (4). The Child Support Standards Act statute (Domestic Relations Law Section 240 (1-b) and the Family Court Act Section 413 (1)) provides a formula for calculation of child support. The formula takes into account the income of both parents and the number of children being sup - ported. 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
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