FAQ

What does someone need to prove to obtain an order of protection in Family Court?
A person seeking a Family Court order of protection will file a “family offense petition.”  Family offense proceedings are governed by Family Court Act Article 8. The person seeking an order of protection is called the “petitioner,” and the person defending against the petition is called the “respondent.”  Procedures are governed by Family Court Act §812.

To prevail in a family offense proceeding, the petitioner must prove (1) standing, and (2) that the respondent committed a family offense.  To prove standing, the petitioner must prove any one of the following:

  • That he/she is related by blood or marriage to the respondent,
  • That he/she is legally married to the respondent,
  • That he/she is formerly married to the respondent,That the petitioner and respondent have a child in common, or
  • That the petitioner and respondent are, or have been, in an intimate relationship.

If the petitioner cannot prove any of the above facts, then he/she can still seek an order of protection in Criminal Court.  However, without proving any of those facts, the petitioner cannot seek an order of protection in Family Court.

A “family offense” is any act which constitutes one of the following violations of the New York Penal Law: disorderly conduct1, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, or attempted assault.

What do courts consider when deciding custody cases?

In determining issues of child custody, the Family Court must determine what is in the best interest of the child.  (See N.Y. Domestic Relations Law §§70 and 240, Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982].)  Virtually every factor related to the parties’ history is relevant to this determination.  Some specific factors that the Court will consider include:

  • The parental guidance the custodial parent provides for the child,
  • The ability of each parent to provide for the child’s emotional and intellectual development,
  • The financial status and ability of each parent to provide for the child,
  • The overall relative fitness of the parties and the length of time the de facto custody arrangement has been in effect,
  • One parent’s use of “self-help” in removing the child from the other parent’s custody.

Rosiana C. v. Pierre S., 191 A.D.2d 432 (2d Dep’t 1993).

The Court will also consider the effect that an award of custody to one parent will have on the child’s relationship with the other parent.  Young v. Young, 212 A.D.2d 114 (2d Dep’t 1995).  If the Court finds that the custodial parent willfully interfered with the child’s parenting time with the other parent, then the Court will likely find a strong probability that the custodial parent is unfit to have custody of the child.  Joosten v. Joosten, 282 A.D.2d 748 (2d Dep’t 2001).

Additionally, if the Court finds that one parent has committed acts of domestic violence against the other parent, then the Court has to consider that in deciding custody.  N.Y.  Domestic Relations Law §240(1), Wissink v. Wissink, 301 A.D.2d 36 (2d Dep’t 2002).

How do courts determine child support?

Child support is governed by the Child Support Standards Act (CSSA).  The Court will add the parents’ incomes together to obtain the “combined parental income.”  For combined income up to $130,000.00, the Court will then take a percentage of the parents’ income to determine the combined child support obligation.  The percentage will be as follows:

  • 17% for one child, 25% for two children, 29% for three children, 31% for four children, and no less than 35% for five or more children.
  • The Court will then determine what percentage of the child support obligation belongs to the non-custodial parent, by pro-rating the parents’ incomes.  For example, if the custodial parent’s income is $40,000.00 per year, and the non-custodial parent’s income is $60,000.00 per year, then 60% of the child support obligation is attributable to the non-custodial parent.

Example:

Mary and John have two children.  Mary earns $25,000.00 per year, and John earns $75,000.00 per year.  Mary is the custodial parent.

Combined parental income- $25,000.00 + $75,000.00 = $100,000.00 per year.
Combined child support obligation- 25% of $100,000.00 per year = $25,000.00 per year.
John earns 75% of the combined parental income.  Therefore, he has 75% of the child support obligation.
75% of $25,000.00 = $18,750.00.
John’s child support obligation is $18,750.00 per year, or $1,562.50 per month.

For income above $130,000.00, the Court will determine appropriate child support based upon:  the financial resources of the parents, the child’s physical and emotional health, the standard of living the child would have enjoyed had the parents not separated, the tax consequences to the parties, the parents’ non-monetary contributions to the child, the parents’ educational needs, the difference in the parents’ incomes, the non-custodial parent’s obligations to other children, expenses incurred when the non-custodial parent is with the child, and any other relevant factors.

The Court may also issue orders for the non-custodial parent to pay his or her pro rata share of the child’s medical expenses, child care expenses, and educational expenses.  If the custodial parent is working, or is in school for something that will lead to employment, then the Court must issue an order for the non-custodial parent to pay his or her pro rata share of child care expenses.  The Court may also order a parent to provide medical insurance for the child.

For purposes of calculating income, the courts will determine each parent’s “adjusted gross income.”  The following items are deducted from income:

  • Unreimbursed employee business expenses, except where these expenses reduce personal expenditures,
  • Alimony or maintenance paid to a spouse not a party to the case,
  • Alimony or maintenance paid to the spouse who is a party to the case, so long as the order provides that child support is to be adjusted when the alimony or maintenance terminates,
  • Child support paid on behalf of another child, pursuant to court order or written agreement,
  • Public assistance,
  • Supplemental security income,
  • New York City or Yonkers taxes, and FICA taxes.
What can I do to prove that I have encouraged parent involvement and can the courts take away my custody?

It is a very common scenario that we see in Family and Supreme Courts when one parent says, “I have been trying to encourage the other parent to be involved with raising our child. He/she has never expressed any interest.  Then, he/she filed for custody, claiming that I’ve been keeping him/her away from our child and the judge/referee is threatening to take custody away from me.”

The Court cannot change custody merely to punish the custodial parent.  In addition, the Court cannot change custody without a full hearing, unless there is imminent risk to the child’s health and/or safety.

As a New York custody lawyer, I will fight aggressively to protect your right to raise your child.  I will marshal all evidence of your efforts to encourage the relationship between your child and the other parent.  Additionally, I will present evidence that the other parent’s absence is due to that person’s lack of effort, and not due to obstruction on your part.  While I will try to avoid the emotional and financial toll of a trial, I am not afraid to take cases to trial when it is in my client’s best interest.  I will prepare diligently for trial, and present the best possible case for you to maintain custody of your child.

My divorced spouse is taking me to court to lower child support due to a lay off. What are my options?

In order for someone to get a modification of a child support order, that person needs to prove that a change of circumstances has taken place, through no fault of his or her own.

As your New York child support attorney, I will work with you to explore the best possible strategy to ensure that your former spouse provides the financial support that your child deserves.  I can subpoena records to prove that your former spouse is making payments which show that he or she has more income than he or she is willing to admit.  If it turns out that your former spouse actually did have a reduction in income, then we can prepare a case to prove that he or she is at fault for the loss of income.  We can also offer proof that your former spouse receives support from friends and relatives, which can be imputed as income for purposes of calculating child support.

I'm separated and my child is living with my spouse. What rights do I have to see my child on a regular schedule without going to court?

Regular time with your child is a fundamental right.  The Court cannot deny you time with your child unless the other parent can prove that it would be dangerous to the child’s health or well-being.  In almost every case, the parent who does not get custody gets an order of parenting time, also known as an order of visitation.

As your New York family law attorney, I will work diligently with you to develop a strategy to protect your right to spend quality time with your child.  If you decide that you wish to pursue custody of your child, then we will explore your chances of success.  If we determine that it is a worthwhile goal, then I will present the best possible case to prove that a change of custody is in your child’s best interests.  If you decide that it would be best if your child continued to live with the other parent, then I will negotiate the best possible parenting time schedule to protect your relationship with your child.  I will also advise you of your remedies in case the other parent fails to obey court orders.

I am separated from my spouse and my child was abused by the other parent during visitation. How can I protect my child?

Full question: I am separated from my spouse, and our child lives with me.  My spouse has had regular parenting time with our child.  Recently, our child came back from a visit, and told me heartbreaking news that my spouse abused him/her.  I called the police, and then ACS came to my home.  The ACS caseworker told me to file for an order of protection against my spouse, on behalf of the child.  I filed for the order of protection like they said, and there is a temporary order that my spouse stay away from our child.  We’ve been going to court, and my spouse’s attorney keeps saying that custody should be given to the person who abused our child!  What can I do?

Answer: The Court cannot change custody based upon good faith allegations of abuse or neglect.  This is known as “Bridget’s Law.”

As your New York order of protection attorney, I will fight to ensure that the Court protects your child’s safety, and that the final orders protect your right to raise your child.  We can explore means to prove that the abuse actually took place, such as calling witnesses, and presenting evidence, including but not limited to police reports and psychological evaluations.  Even if, in the worst case scenario, we determine that the abuse itself cannot be proven in spite of our best efforts, then we will present a case to demonstrate that your actions were in good faith, and designed to protect the health and well-being of your child

I'm separated and have been paying a child support amount I can afford. My spouse is taking me to court for money I don't have. What can I do?

Child support is calculated according to the Child Support Standards Act (“CSSA”).  (See question 3, above.)  If you cannot afford to pay according to the “CSSA guidelines,” then we can explore means to argue in favor of a “deviation” from the guidelines.  Grounds for a deviation include, but are not limited to: (1) proof that you spend significant time with the child or children, which reduces the expenses of the custodial parent, (2) proof that you pay child support for other children, (3) proof that the custodial parent earns significantly more than you do, and (4) proof that you have significant educational needs.

As your New York child support lawyer, I will fight diligently to ensure that any order of child support is fair and within the bounds of the law.

I have full custody of my child and am remarried. What are my rights to moving out of state?

As a New York family law attorney, I see many cases where the custodial parent wishes to relocate with the child.  In these instances, the Court will look at several factors, including but not limited to: “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”  Matter of Tropea v Tropea, 87 NY2d 727, 741 (1996).  The paramount concern will always be the child’s best interest.

I will work with you to present a case to prove that it would be in your child’s best interest for the Court to permit you to move out of state with your child.  We will explore ways in which your child’s education, emotional well-being, and economic circumstances will be improved.  Additionally, I will work with you to prepare a case to show the Court that even after the move, the other parent will be able to have a relationship with the child that is safe, healthy, and meaningful.

I’ve always had regular parenting time with my child. The other parent has custody. I've just been served papers for an accusation of child abuse....

Full question: I’ve always had regular parenting time with my child, and the other parent has custody.  We recently had an argument, and the other parent doesn’t want me to see our child anymore.  I just got served with papers from court, where the other parent is accusing me of abusing our child.  There is an order that I stay away from our child until the next court date.  What can I do?

Answer: This scenario is, understandably, devastating to you as a parent.

As your New York family law attorney, I will work with you to develop a strategy on how to address this terrible situation.  One response could be to seek a change in custody, as we may conclude that your relationship with your child will be compromised so long as your child lives with the other parent.  Parents who make false allegations of abuse and neglect can, and do, lose custody as a result, where the Court finds that allegations were made in bad faith.  I will work with you to show the Court that the allegations of abuse and neglect are false, and were in fact made in bad faith.  I will work diligently to present a case to prove that a change of custody to you is the only way to protect your relationship with your child.