Can Parents Create Their Own Custodial Arrangement Or Does The Matter Have To Be In A Legal Agreement Recognized By The Court?
Parents certainly can create their own custodial arrangements, which is what normally happens. When we see cases in Family Court, it’s usually because the parties couldn’t come to some kind of an agreement. A personal arrangement doesn’t have any legal effect as long as there’s no custody order from a court. Each parent has the same rights to the child as the other parent. That means that even if parents have an oral agreement that the child will live with one parent while the other parent gets weekends, the parent who has weekends could decide to keep the child for longer for whatever reason. The other parent can’t say, “No, you can’t do that,” because either parent could actually do that.
If one parent withheld the child from the other parent, the other parent could file a writ of habeas corpus petition in Family Court. That would get them very quickly in front of a judge who could decide if there are any kind of safety issues regarding the child, which would mean that the child should be immediately returned to the other parent. Short of that, either parent would have to file for custody in Family Court, and they may get a temporary custody order, which would return the child to them, or they may not. It depends on the judge and on the situation. Without an order from a court, any kind of custody arrangement that the parents have is not enforceable.
If The Other Parent And I Are Not Able To Make Decisions Together, Are There Other Options For Resolution Outside Of Litigation?
Mediation is available, and there are even attorneys who specialize in mediation. Some people go that route before they go to court; they try to reach a mediated agreement that results in a written agreement for both parties to sign. It’s not a court order, so it’s not enforceable to the same degree. However, if the parties do have a signed agreement and one of them refuses to abide by it, then the other one can take them to Family Court, where a judge would be likely to enforce that agreement.
Though a mediated agreement is not the force of law, it’s basically the same as any other out-of-court agreement. In order for the court to refer someone to mediation, there can be no history of Orders of Protection or domestic violence. Though mediation was more common years ago, I believe the courts will be referring more couples in the future to give parents that option.
Who Pays Child Support In New York When Parents Are Not Married Or Together?
The general rule is the non-custodial parent is responsible for child support. One common issue with this involves paternity. If a father is not named on the birth certificate and doesn’t sign an acknowledgement of paternity or if the parties aren’t married, then the mother would have to establish paternity before she gets child support. That would be the first step, and unless there’s an agreement, that can be done by DNA.
There are also some issues when parents have, say, fifty-fifty custody. The courts have gone two ways on this issue. One way is that the parent who makes more money is responsible for 100% of child support. The other way is that they would figure out, based on their incomes, how much each parent would be responsible to pay to the other parent; then they’ll do an offset, and whoever is responsible for more support will pay that amount to the other parent. It’s a little bit unclear which of those two standards would be applied, so if there is a situation of fifty-fifty custody, that’s an issue that would probably have to be litigated in the court.
How Is The Amount Of Child Support Calculated In New York?
There are two basic kinds of support. The basic support is simply a mathematical formula, which is used by many states. The court takes the incomes of the two parents, with the non-custodial parent’s income being the one that matters most. They take away certain tax deductions (not federal income but federal FICA tax, which is Social Security and Medicare tax, and New York City income tax; I would assume they would also take away local income tax in other areas). After subtracting the tax deductions from the income, it’s a percentage based on the number of children. For example, for one child, you would pay 17% of that income toward child support.
Then there are basically three other expenses that are part of child support: education expenses, unreimbursed medical expenses, and child care expenses. For those three expenses, they compare the two parents’ income on a pro rata share. If one parent has double the income of the other parent, then that parent is responsible for two-thirds of those other expenses. That’s an overview of the basic child support and the three expenses that are divided up.
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