Child Support and Child Custody Issues in a New York Divorce

If there are children involved, child custody and child support is one of the most difficult issues in a divorce.  In New York most divorces do not result in a trial.  The case is settled, which means that the parties will enter into a settlement agreement (typically called the "Stipulation of Settlement" or simply "Stipulation" or "Stip").

When you enter into a Stipulation, you get to negotiate the terms.  Therefore, you can agree to how much you will pay in child support and when you will have custodial time with your children. 

When you are negotiating the terms of your Stipulation, you should not use phrases such as:  "I want the child every weekend” or “you are getting every weekday”.  Instead, you should always be focusing on what is in the “Best Interest of the Child” and use those words. 

For example:  “It would be in the best interest of Jim if he had lots of time with both parents.  I believe we can best accomplish that if Jim has more then every other weekend with his Dad.”

 Custody Issues in Divorce

There are three basic types of custody:

 1. Sole Custody:  This is where the Mother or Father has sole decision making about the upbringing and raising of the children.  That person will make all the important decisions concerning the child’s life and does not have to consult with the other parent over these decisions.

 2.  Joint Legal Custody, With Primary Physical Custody to One Spouse:  This is where the Mother and Father share decision making about the upbringing and raising of the children.  However, typically one parent will have the right to make the final decision.  Therefore, it is very important that the other parent’s rights be explicitly spelled out in the Stipulation. 

 3.  Joint Legal Custody, With Shared Physical Custody:  This is where the Mother and Father share decision making about the upbringing and raising of the children and in addition, they have close to equal time with the children.  Sounds great, except it is extremely rare.

 Question of Child Support

In New York, your child support payments are based on a percentage of your gross income.  From your gross income, you can deduct:  (i) any New York City and Yonkers local taxes withheld; (ii) the FICA taxes you pay (i.e. Social Security and Medicare); (iii) any maintenance (alimony) paid to a prior spouse; and (iv) any child support paid for children from a prior relationship.  Once your “deductions” are taken from your gross income, you will get your “Child Support Net Income” (this is a term I use to emphasize that this is not your actual net income or take-home pay), this is much more than your actual net income (your take-home pay).  Once your “Child Support Net Income” is computed, the amount of money you pay depends on how many children you are supporting.

In New York, the Child Support Standards Act (“CSSA”) states the guidelines of how much you will pay in child support.  For:

• One child: 17% of your “Child Support Net Income”
• Two children: 25%
• Three children: 29%
• Four children: 31%
• Five or more children: At least 35%

Reducing or Increasing Child Support

The amount of your child support obligation is presumed and hard to overcome.  There are certain strategies that can help you to negotiate a different amount of child support. 

For example:

• If you are the non-custodial parent:  the more time you have with the child, the better your chances of getting a reduction in child support
• If you are the custodial parent:  if you are also due maintenance (alimony), you may be able to decide to take less in alimony payments for an increase in child support payments.

Determining Visitation/Parenting Time

Even after a divorce, a child still has two parents.  Children deserve a meaningful relationship with both their parents.  Accordingly, in a perfect world, divorced parents should work together to achieve this goal.  Unfortunately, we live in a less than perfect world.  If you are the non-custodial parent you should keep in mind some of the following points.  Conversely, if you are the custodial parent, you should be aware of the same following issues.

Parenting Time: More than Every Other Weekend

Your visitation time does not have to be “every other weekend plus one weeknight”.  There is no law that mandates this schedule.  If the child is of school age, there are 42 weeks when school is in session (not counting school holidays).  Your goal should be to get more than 21 weekends out of those 42 weeks of school.

One way to do this is to be creative when talking about weekends.  You should point out that if you had custody of the child, you would want your Ex to have more than every other weekend.  You should demonstrate that an every other weekend schedule means that you would only see your child for about 4 - 6 days every month.  Accordingly, you could request: 3 out of 4 weekends; 7 out of 10 weekends; 2 out of 3 weekends; 5 out of 8 weekends, or 4 out of 7 weekends.

Just How Many Weeks Are There in a Month?

Except for February, every month has 4 weeks (28 days) plus either 2 or 3 more days.  Therefore, on average there are actually about 4.3 weeks in a month.  You should keep this in mind when discussing weeks and months.

Be Specific

Your Stipulation must be very specific.  If it states that you are to get a “weekend” visit, what does that exactly mean?  It could mean different things to different people.  To prevent any confusion, you must give the exact date and time when your custodial time starts and when it ends.  For example:  On the first, third, fourth, sixth and eighth weekend of a eight-week rotation from Friday at 5:00 p.m. until Sunday at 7:30 p.m.

Weeknights Are They Worth It?

Many Stipulations include one “weeknight” visit each week or every other week.  However, in today’s world, children are very busy, with homework, school projects, school sports, music lessons, and after-school activities.  Your weeknight visit will either be rushed or cancelled.  Although, it is important to include a weeknight visit, you may want to consider trading a weeknight visit for more time during the weekend.

As another alternative, you may want to be creative and include, what I call, “special” time.  You would request 1-4 special visits each month, where you could take your child to any event you like (or no event at all, you could spend it together at your house).  For example, you could take your child to a movie, out for ice cream, or to a sporting event. 

Visitation During Summer Time

Children who attend school get about 10 weeks of summer vacation.  This is because July and August have 62 days and adding in the days after school ends in June and the days before it begins in September, you have just about 10 weeks.

You should request at least 4 - 5 weeks of summer vacation with your child, even if you only get 2 weeks of vacation from your job. 

Holidays

Look at a calendar, one that has all the holidays listed.  If you celebrate a holiday include it in your Stipulation.  If you child is in school, then a good calendar to look at is the school calendar.  You can usually find your school’s calendar on the Internet. 

Remember to be specific, don't just agree to “every other Labor Day.”  Instead, agree to: Labor Day holiday on every odd year from 9:00 a.m. until 7:30 p.m.

Other Days

I always include the Father's Birthday and the Child's Birthday in custodial times.

Other Concerns in a Divorce

Tax Deduction

Although, you will be paying child support, it is the Ex who has custody (and getting your child support payments) who gets the tax deduction for the child.  You must put in the Agreement, that you will get the tax deduction for the child every year or at least every other year.  You will need the Agreement to state that the Mother has to sign Form 8332 every year you want the deduction. 

College Expenses

You may be stuck with paying both for college and child support at the same time.  Your agreement must state that if the child lives at college, that the child support gets reduced by a one to one credit for the amount you pay for the child’s room and board.

What if the Custodial Parent Moves?

If the custodial parent moves out of the area, you want to make sure that they pay for any additional transportation costs for your custodial times. 

Medical, Dental and Life Insurance

Make sure that the Agreement states that you do not pay for cosmetic procedures and that you do not pay for over-the-counter medicine.  The Agreement should state that both Mother and Father are to provide Life Insurance.

Conclusion

Going through a divorce is complicated and difficult.  If you require help, please contact David Badanes of the Badanes Law Office.

David P. Badanes, Esq.
Badanes Law Office
4 Pebble Hill Drive
Northport, N.Y. 11768
631-239-1702
dbattorney@optonline.net
www.dbnylaw.com
www.divorcelawyer.li

• The content of this article is provided for informational purposes only. If you need help with a Divorce Law question, click here to talk to David Badanes or a Divorce Lawyer Near You.

 DISCLAIMERS

The opinions and information presented in this article are my own personal opinions.  This article is not intended to give legal advice and is not intended to give legal opinions.  By reading and accepting this article, we have not entered into or created an attorney-client relationship.  If you need an attorney, I urge you to contact an attorney who can help you and answer your questions.