Child Custody & Support

By: Daniel E. Clement, Esq.

How will custody of the children be determined?

In a contested custody battle, custody of the children is determined through an exhaustive examination of the totality of the circumstances to determine the "best interests of the children." In determining what is in the best interest of the children, a court will consider many factors, including:

1. the pre-existing custodial arrangement;

2. who is the primary caretaker of the child;

3. the historical relationship of the child and the parents;

4. the financial status and ability of each parent to provide for the child;

5. what is the nurturing ability of the parents;

6. who has better judgment;

7. the desirability of keeping siblings together;

8. the wishes of the child, if of sufficient age and maturity;

9. the parents' lifestyles, including substance abuse or chemical addiction of a parent;

10. the parents' religion;

11. whether a parent will encourage or discourage visitation;

12. continuity of a stable environment;

13. the age of the child;

14. a parent’s neglect or abuse of the child;

15. the quality of each parents' home environment;

16. the parental guidance each parent provides for the child;

17. the ability of each parent to provide for the child's emotional and intellectual development;

18. the relative fitness of the respective parents including their mental condition; and

19. the length of time the present custody arrangement has been in effect.

How is child support calculated?

Child support in New York is calculated pursuant to the Child Support Standards Act ("CSSA") (Domestic Relations Law §240(1-b) and Family Court Act § 413(1)(b)). Vastly simplified, CSSA provides that unless the court finds that the non-custodial parent's pro rata share of the "basic child support obligation" is unjust or inappropriate after considering ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation".

The "basic child support obligation" is calculated by multiplying the "combined parental income" by the appropriate "child support percentage." "Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return" less deductions for social security and New York City and Yonkers income taxes."

The "child support percentage" is fixed at:

1. 17% of the combined parental income for one child;

2. 25% of the combined parental income for two children;

3. 29% of the combined parental income for three children;

4. 31% of the combined parental income for four children; and

5. no less than 35% of the combined parental income for five or more children.

In those cases where there are five or more children, the court must exercise its discretion in fixing the amount of the child support percentage.

Are the child support percentages applied to all income?

Where the combined parental income exceeds $80,000 per year, the court has discretion to depart from the child support percentages as to those portions of income in excess of $80,000.00.

What about child care, medical care and other costs?

In addition to ordering the payment of child support, the Court can order the non-custodial parent to pay his\her pro rata share of the child's future reasonable health care expenses not covered by insurance and the reasonable child care expenses when the custodial parent is working or attending school.

The Court also has discretion to order the non-custodial parent to pay the costs of present or future post secondary, private, special or enriched education for the child.

How long must I pay or can I receive child support?

Generally, a parent is liable to provide support for his\her children until the children attain the age of 21, unless the children become emancipated before they attain the age of 21. Examples of emancipation event include engaging in full-time employment, marriage or entry into the military service.