From the legal perspective, child custody has two overarching components. The first is legal custody and the second is physical custody. In a nutshell, the concept of legal custody addresses decision-making for the child in the areas of education, medicine and religion...
The concept of physical custody refers to the allocation of parenting time with the child between two parents. Both aspects are addressed in what is often referred to as a Parenting Plan or a Custodial Arrangement.
The good news is that parenting plans can be as flexible, detailed or restrictive as parents and children want them or need them to be. At the end of the day, decisions by courts and by parents hinge on the best interests of the children. Despite a popular misconception, New York State law does not give mothers a preference for physical custody, and more and more frequently, parents are agreeing to and judges are awarding shared physical custody, whereby mothers and fathers have equal or nearly equal parenting time with their children.
While it is not unusual that custodial arrangements are determined through the litigation process or by a judge, this is not the parents’ only choice of process for resolution. For example, parents may negotiate a parenting plan outside of court and enter into a contract known as a stipulation, use the Collaborative Process or mediate a parenting plan for their children.
To answer your immediate question, NO, the custodial parent cannot relocate with children without the consent of the non-custodial parent or without permission obtained through the courts. The non-custodial parent has the right to regular parenting time and access to the child.
When making a determination on whether to allow a parent to relocate with children, a judge will consider the following factors:
- Impact on the quality of the child’s relationship with the non-custodial parent
- After the relocation, whether the child will continue to have meaningful contact with the non-custodial parent
- Whether relocation would enhance the child’s life economically, emotionally and/or educationally
- Whether a permanent award of physical custody to the non-custodial parent would not be better for the child than relocation
- Whether relocation of the child is in the child’s best interest
- Whether the non-custodial parent has consistently provided for the child’s financial needs
Is parental alienation happening in your family? Take a few moments to examine the following indicators:
- The child aligns with the alienating parent, building a wall against the alienated parent comprised with bricks of denigration and hatred
- The child cannot rationalize or understand his or her hatred, which appears frivolous or absurd
- The child’s feelings toward the alienated parent show no ambivalence
- The child takes ownership over the alienation, in other words, insists that the decisions to reject the alienated parent are his or her own
- The child defends and is defensive of the alienating parent
- The child has no regard for or recognition of the feelings of the alienated parent
- The child uses concepts and makes language choices that are distinctively characteristic of the alienating parent
- The child’s animosity extends to the alienated parent’s extended family and friends
There are serious psychological and legal consequences to parental alienation. The custodial parent has an affirmative obligation to foster the relationship between the child and the non-custodial parent. If the custodial parent fails in this regard, and takes the next step of alienating the relationship with the non-custodial parent, the law takes drastic measures to accommodate this egregious situation, and your child custody arrangement as well as child support obligations can change drastically.
Grandparent Custody and Visitation
The State of New York affords grandparents the legal right to seek custody and visitation of their grandchildren. Because mothers and fathers have a superior right to custody, and in order to transfer custody to a non-parent, the petitioner-non-parent, in other words, a grandparent, has the legal burden to prove extraordinary circumstances.
Grandparents must have what is referred to as legal “standing” to seek custody of their grandchildren. Standing means that an individual must meet certain requirements before they can bring an action in court. In the situation of grandparent custody, a grandparent has custody if either or both of the child’s parents are deceased, or if extraordinary circumstances justify the court’s decision to intervene and hear the matter. After standing has been established, usually through a successful allegation then showing of extraordinary circumstances, the Courts next seek to determine the best interests of the child, in other words, whether awarding a transfer of physical custody to the grandparent is the best outcome for the child. The courts will consider the child’s wishes, the child’s established relationship with the grandparents, the reasons why the parent opposes a transfer of custody, among other factors.
Diane E. Darwish Plumley Esq. has represented hundreds of parents, children and grandparents on a wide variety of custody matters and circumstances. We look forward to helping you. Call Darwish Law Offices, PC and schedule a free consultation. We can’t wait to meet you!
In New York State, both parents are legally obligated to financially support their children until their children reach the age of 21 (unless earlier emancipated). Both parents share in the cost of day-to-day needs for their children, e.g., mortgage or rent payment, safe vehicles in which to transport the children, food, furniture, bedding, toys, clothing, diapers, school supplies, musical instruments, soccer gear, etc. Both parents must provide for their children’s health insurance and medical care, and depending on your family, day care and education. The non-custodial parent’s obligation is satisfied by payments made to the custodial parent, in other words, payments are made to the parent who the children live with most of the time.
Often, the amount of the child support obligation is basic math. The equation is narrated in New York State’s Domestic Relations Law and Family Court Act, which is a codification of the “Income Shares” model for calculation of child support. The premises of the Income Shares model is an estimated percentage of household income that it takes to raise a child (not the actual cost of raising a child) and that the child’s standard of living is as if the parents were not separated. These premises are likely why courts may impute income to an underemployed or unemployed parent, why a parent may still be required to pay child support even if parents share physical custody, and why the child support recipient is not required to provide a specific accounting of how child support monies were spent.
Sometimes, the amount of the child support obligation is not simple math. The equation may be treated as a mere guideline. For example, the court may determine that the result is unjust or improper. The court may deviate from the original number (referred to as the presumptive amount). You and the other parent may agree to a different number and payment plan that better meets the needs of your family, or you may agree to use different gross incomes, or different pro rata shares. There is room for flexibility! (The collaborative process is a great tool to use to come to a number that makes sense for your family.)
As you have likely concluded on your own, child support agreements and determinations after trial range from the straightforward to the complex. Diane E. Darwish Plumley, Esq. welcomes the opportunity to guide and advise you through the math and the various permutations and outcomes that follow, taking into consideration the unique circumstances of your family. Call us today to schedule a free 15 minute consultation so that together, we may move forward!