USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Lindsay R Pfeffer, Rabin Schumann and Partners LLP
consider the total parental income for child sup - port 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 consider - ing a number of factors set forth in the statute. Parties can come to an agreement on child sup - port outside of court by entering into a written agreement signed by the parties and acknowl - edged by notaries public. Such an agreement may be enforceable on its own but it may also be incorporated into a judgment of divorce or it may be So Ordered by a court such that additional legal remedies would be available for enforce - ment. Both Family and Supreme Courts in New York State are empowered to make child support orders. Those made during the course of a pending proceeding are known as “pendente lite” orders. Those that concern “permanent” child support are applicable through the child/ children reaching age 21. A child who is not emancipated (meaning under the age of 21) may file a petition against their parents asking for an order of child support. However, applications brought by children are highly atypical. 3.3 Other Matters Courts’ Power in Case of Disagreement The New York courts are empowered to rule on applications filed by a party seeking an award of decision-making authority with respect to a decision concerning 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 modifications 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 these cases, sometimes a court-appointed attorney for the child, who will meet with the child and with each parent and/or a forensic evaluator who then issues a report following evaluation of both parents and collateral sources may shed light on a potential parental alienation situation. There are no enumerated factors to consider per se. These matters are handed on a case-by-case basis. A custodial parent’s interference with the rela - tionship between a child and a noncustodial par - ent has been said to be “an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent”. Young v Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (1995) (quoting Maloney v Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190, 191 (1994)). Children’s Evidence New York judges do not generally call children to the witness stand. Rather, they hold what is known as in camera “Lincoln hearings” where the children speak without the presence of the parties or counsel to the judge (only the attorney for the child(ren) is present), and what is said during these “Lincoln hearings” may weigh upon the judge’s ultimate determination of custody. The transcript of the Lincoln hearing is sealed, such that the parties do not have access to the child’s testimony.
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