Divorce Jargon Cheat Sheet

Remember that Friends episode where Joey bought an encyclopedia volume because he couldn’t keep up a conversation with the other friends? He found himself nodding along hoping no one would catch on that he was completely clueless. Then he got volume V of an encyclopedia and was a regular Charlie Rose for a few seconds until the conversation moved onto something not V-related.

Don’t be Joey when it comes to your divorce. Use the handy guide below to demystify all the legalese heading your way. Also, don’t be Joey when it comes to the rest of your life either. Would it kill you to pick up a newspaper once in awhile?

Abandonment: When one spouse peaces out for at least one year without consent or justification. This concept used to have some legal relevance.  Now that New York is a “no fault” state nobody cares. You can tell how old this particular law is by the fact it includes the statement that the spouse must be absent for a period of twelve months “with no tidings.”  

Adultery: You probably know this one. It’s cheating. The cheat-cheat-cheating.

Alimony: The bucks. That sweet dough or financial support one spouse is required to provide the other after separation or divorce. Usually tax deductible by the individual paying it and taxable income to the person receiving it. In New York this term is no longer used and has been replaced by the term “Maintenance.”  It still costs the same.  

Attorney’s Fees: The cold hard cash you give me. Take some small comfort in the fact that I’m passing most of it along to my own ex-wife.  

Child Support: Money paid by one spouse to the other to cover a child’s expenses. Child support generally covers the “shelter expenses” of the child: food, clothing, contribution to housing. There can be additional funds awarded for things like unreimbursed medical expenses and educational expenses but “child support” covers most stuff so if Junior wants a new lacrosse stick or prom dress it’s covered under “child support” unless the person paying is feeling generous.   

Constructive Abandonment: When one spouse refuses to have sex with the other spouse for a period of at least a year, and without justification. That’s right folks: you are legally required, in New York State, to have sex with your spouse at least one time per year. Mark it on the calendar. Perhaps have it coincide with changing the clocks for Daylight Savings Time?  That way you can have sex, change the clocks and the battery in the fire detectors and, for at least one night, get an extra hour of sleep knowing that your marriage and home are both especially “Fireproof” for that night (Yes…that was a deliberate Kirk Cameron reference).

Cruel and Inhuman Treatment: Cruelty (physical or emotional) committed by the Defendant against the Plaintiff that makes living together unsafe or otherwise impossible. Forcing a spouse to watch James Franco’s Palo Alto is not considered cruel and inhuman treatment in any state, though it should be.

Defendant or Respondent: The person who has a divorce or Family Court action filed against them. I can usually see them coming as they walk into my office holding papers in their hand and saying “I meant to come see you sooner….”

Earning Capacity: A person’s ability to earn money. Things to consider: education, training, job experience, million dollar Hollywood smile, sick dance moves.

Emancipation: How teen stars divorce their momagers to get full control of their sitcom money. Also when a child under 21 marries, enlists in the military, or is financially self sufficient thereby making them no longer eligible for child support.

Equitable Distribution – How marital property is divided. Equitable doesn’t have to mean 50/50.

Family Court: Where you’ll be hanging out to get custody, child support and visitation ironed out. Ask around to find out where the good vending machines are. There’s always one good one and it’s never easy to find. Avoid the water fountains. Spring for the bottled water from the machines. Trust me on this one.  

Jurisdiction: The state where your divorce takes place. Usually residing someplace for six months or more gives that state jurisdiction over the divorce. Whether or not that state is the right “venue” is another question entirely.  

Legal Custody: The legal responsibility and right to make decisions for a child under 18. I’m not talking about where the child should have dinner tonight (your ex gets to make those decisions during his or her visitation/parenting time).  I’m talking about “major decisions” such as what religion will the child be, will they attend public or private school, can they have elective cosmetic surgery? Some of these decisions have financial ramifications.  

Marital Property: All cars, TVs, furniture, jazz shoes and any other stuff acquired by the couple from the date of marriage to the beginning of the divorce process. Debt can also be considered property so remember that gets whacked up too. Some things, such as an inheritance or proceeds from a personal injury award may not count as Marital Property and are considered Separate Property. Key point: the fact that something is in your “sole name” may not protect that asset from division.  

Mediation: A rap sesh between a couple and a mediator where the couple tries to hammer out their divorce issues and come to some sort of agreement. Sort of like couples therapy but the couple is not looking to work things out to stay together.

No Fault Divorce: Neither spouse has to prove the other did something wrong. No one has to give a reason for wanting the divorce. The couple just has to stand in front of a darkened mirror and chant “No Fault Divorce” three times and the judge appears in the mirror covered in blood wearing a yellowing bridal veil and okays it. Kidding about that last bit.

Order of Protection: An order from the court that demands a person stop harassing another person, or orders them to stay away from a certain place such as a home, school or office.  This can be obtained in Family Court or Justice Court (or both).  

Palimony: Like Alimony but for pals who weren’t legally married, but were living together in a marriage-like relationship. This no longer exists in New York State.  Please stop asking.

Parenting Time: The new term for visitation.  Also called “custodial access time” or “access time” the idea being that you don’t “visit” with your child. This is intended to make somebody feel better about only seeing their child on alternate Wednesdays.  

Plaintiff or Petitioner: The spouse who files for divorce. The individual who incepts the action.  The only real benefit to being the “first to file” is that you get to go first if the case goes to trial (this isn’t always a good thing) and you have to pay the filing fees (currently $385.00).

Physical Custody – You can reach out and pinch your cute kid’s cheeks because they are with you, in your physical custody. The child most likely lives with you and your home is considered the kid’s “primary residence.”  This is sometimes a very lucrative arrangement as having “primary physical custody” usually results in receiving child support.

Pro Se: Going solo and representing yourself sans lawyer. Also known as having little or no self preservative instincts. People ask me all the time (usually at a consultation) “Can’t I represent myself?” and the answer is “Yes.”  You can also do your own dental work. All you need is a drill, a high pain tolerance and an abundance of tenacity.  Good luck with that.  

Separate Property: Stuff that is out of bounds to split up, meaning it belongs solely to only one spouse. This could be premarital property that was never “commingled” with marital property.  This could be stuff you got after the filing of the divorce action.  

Separation Agreement: The written agreement that spells out all the specifics regarding your divorce and the arrangements the former couple has agreed to. This is how the overwhelming majority of cases end when people finally realize that Judges don’t possess any particular wisdom on any of these issues. If your lawyers divide your assets – they do it with a scalpel.  If a Judge does it – they do it with a chainsaw.  

Subpoena: Tricky to spell but easy to explain. It’s the court’s way of telling you (or a witness in your case) when and where to be to testify, or it’s way of asking to provide certain documents. If you get served with one please call me.  If your business partner gets served with one please call me on my cell phone as soon as possible.

Uncontested Divorce: First a magical alignment of planets, heavens and earth occurs. Then Glinda the Good Witch bubbles down from the sky with a red wagon full of golden retriever puppies. She confirms that both parties are totally cool with every divorce related issue including spousal support, custody and splitting property. The couple then pets the puppies and the divorce is officially granted and sealed with puppy kisses. Just kidding, planets don’t have to align and Glinda can take the day off. The puppies are optional, though strongly recommended.

Uncontested divorces are very common and totally doable, so keep the faith. This stuff isn’t rocket science but it does require a certain level of knowledge and experience.  Call me sooner rather than later. Trust me. I’ll be gentle.  

Respectfully,
James J. Sexton

Same-Sex Divorce in New York State

Just like Nirvana and Nine Inch Nails, I was into LGBT law WAY before it was cool. When the firm opened our doors in 2002 we were among the first in New York to seek out LGBT clients and to help educate the public regarding the myriad of complexities facing same-sex couples seeking to dissolve their relationships. We held poorly advertised, yet packed seminars on “Gay and Lesbian Legal Issues” at an Episcopal church. We handed out purple balloons with the firm’s logo at the first Rockland Pride event in Nyack, New York.

Back then, when a same-sex couple was dissolving their relationship the Courts weren’t sure what to do. Some Judges applied simple property theory (“Whose name is the house in? Okay…it’s his house.”) Some Judges applied strict contract principles (“Who provided the funds for the house? Was there a written agreement? Okay…it’s her house.”)

Some avant garde Judges applied the Business Corporation Law and tried to treat the failed relationship like a two partners splitting up a business (“Who paid for the house? Who fixed up the house and kept it maintained Who tended to the rose garden? Okay…they’re splitting it 50/50″). Some Judges just scratched their heads and wistfully pondered the prospect of retirement and the promise of yelling at children who dare step on their lawns.

I remember arguing a custody case for a transgender client who didn’t want to face an impossible choice: lose your children or lose your authentic self. I had to explain the difference between a transsexual and transgender to literally every individual working on the case (the Court Officers, the Court reporter, the Judge, the attorney appointed to the children) and I didn’t have Caitlyn Jenner to help explain.

We were into LGBT law back when it wasn’t even a thing to be into. Now there are whole firms that focus, and advertise primarily to that market. Oh, the times… they are a’ changin’. I remember speaking at the “Lavender Law” conference at Fordham Law School back in 2005 on a panel regarding mediation and alternate dispute resolution for same-sex couples. I warned those in attendance of what a “roll of the dice” taking a same-sex case to court was in the then- current cultural climate. I ended my presentation on a hopeful note. I told the attendees that same-sex marriage was coming. In our lifetime. It was inevitable.

There have been many recent victories for same-sex marriage, with the institution now recognized as legal in 36 states (although there is plenty of variation on how it works, and some states have flip-flopped on the legality over the years).

Seventy percent of Americans now live in a place where they can legally be married to someone of the same sex, a fantastic step towards equality. Here in New York, same-sex marriage is legal, which means same-sex partnerships should enjoy all the rights and privileges heterosexual couples do, including the right to divorce if need be.

Same-sex divorce is certainly less talked about in the media, because who wants to be the Debbie Downer at the party? Hooray, what a great day for America! By the way, after all that joy and celebrating and the vows and the big party and gifts and everything, don’t forget, divorce is also now part of your equality, if and when things go south! Less celebratory, sure, but it certainly
doesn’t make sense for same-sex couples to be trapped
in unhappy marriages.

Divorce as an Equal Rights Issue
Marriage and divorce laws vary state by state of course, but basically they’re pretty similar for hetero couples. This means if you get married in New Hampshire, move to Washington state, and settle down in Arizona and want to get divorced there, your rights as a married couple were essentially identical throughout that whole journey, as one would hope.

But same-sex partnerships face uncertainty because same-sex marriage is still legally very new. Because it is recognized differently in different states, how to get divorced where you currently live —or in a state where it was legal but now isn’t—can be a problem. How can people divorce if they’re not recognized as married? If you can’t easily obtain a divorce, how do you move on with your life? Particularly if it’s not an amicable split, how do you enforce the equitable division of assets and deal with custody arrangements?

Going even further, how can the length of a relationship be defined in places where same-sex couples were waiting for marriage to be legalized in their state? On principle it seems that time should be counted when determining equitable division of assets based on the time spent in a marital relationship—even if it wasn’t legal marriage.

Divorcing for Nontraditional or Same-Sex Couples
As states are still get their footing and new laws are enacted, in all likelihood you’re going to have more red tape and hurdles than heterosexual couples have. Thankfully, rockstars like Susan Sommer are making huge inroads. She championed legalizing divorces of same-sex couples who had been married in other states where same-sex marriage wasn’t previously legal. Until there are dozens of Susan Sommers around the country paving the way for streamlined same-sex divorce laws, it’s important you be prepared for what might be more complicated proceedings compared to your heterosexual divorcing counterparts.

The climate is changing – as highlighted in this year’s NYC Pride theme: Complete the Dream – and in fact just last week the Texas Supreme Court upheld a same-sex divorce despite the fact that the state does not (yet!) recognize same-sex marriage. A day will come when it sounds strange for a lawyer to make a distinction between “gay divorce” and “heterosexual divorce.” Our children’s children won’t remember a time when two men or two women in a marriage was relevant to anything other than what pronouns you used in your arguments.

Until then it’s a good move to trust your case to a firm like mine, that has handled a large number of same-sex dissolutions and divorces. A firm that was “into” LGBT legal issues before it was cool.

Happy Pride Week!

 

Respectfully,

James J. Sexton

Eight Things You May Not Know About Divorce Law In New York State

If you’ve begun to consider a divorce but are unsure of how to get started, or what the laws in New York regarding divorce are, I’ve put together a quick list of the basics that should help. You can also see my other post on child custody and visitation. Please feel free to contact me to discuss your situation.

You Can File for Divorce in New York If:
• You and your spouse were married in New York, and at least one of you has been a resident of New York for at least a year,
• You and your spouse resided in New York as husband and wife, and at least one of you has been a resident of New York at least a year,
• The grounds for divorce occurred in New York, and at least one of you has been a resident of New York for at least a year, or
• At least one of you has been a resident of New York for at least two years immediately before the start of the divorce.

“Fault” & “No-Fault” Divorce: 
New York recognizes both “fault” and “no-fault” grounds for divorce. In a “fault” divorce, one spouse will claim that the other spouse engaged in misconduct leading to the divorce.

“Fault” grounds in New York include:
• Cruel and inhuman treatment (mental or physical abuse),
• Abandonment,
• Imprisonment for three or more years, and
• Adultery.

Grounds for a “no-fault” divorce include:
• The “irretrievable breakdown” of the marriage, and
• Living apart for a period of one or more years, before or after a legal separation agreement.

 “Contested” & “Uncontested” Divorce: 
• “Contested” divorce means that there are critical issues in your divorce that you and your spouse haven’t been able to resolve, either with or without the help of lawyers and mediators.
• “Uncontested” means that you agree to all the important terms of your divorce. You’ve decided where your children will live and what the visitation schedule will be, you’ve agreed to the terms of alimony and child support, and you know how you want to divide your property.

A Few More Helpful Facts: 
• You can represent yourself in divorce proceedings, although this isn’t always a good idea, particularly if you are unsure of the law, or if you have complex financial or custody issues to consider. Divorces with concerns of child custody, property division, and spousal support can be especially complex.
• Paperwork filed in divorce court in New York is not public. This includes pleadings, affidavits, findings of fact, conclusions of law, judgments of dissolution, and written agreements of separation.
• While New York plaintiffs are entitled to a jury trial, the only issue that a jury can decide on is the grounds for the divorce.

While this covers the basics of New York divorce law, it’s highly likely that you will benefit by seeking legal counsel before you begin divorce proceedings. If you’d like to discuss your particular situation, please feel free to contact me.

Respectfully,
James J. Sexton

Who Gets the Pets?

The New York law has been changing around pet issues for several years now, with courts, and pet owners, increasingly treating pets like family rather than like property in divorce proceedings. I’m in full support, as you can imagine, having my pup, Huckleberry, as a big reminder that pets are people too.

In New York and across the US, it’s mattering less and less whose name is on the dog owner’s certificate, if indeed you have one, because pets aren’t subject to the rules of property division anymore. Basically, much like custody matters work with children, decisions are going to be made based on the best interest of the pet.

This also means that the courts can and have awarded shared custody, visitation, and alimony payments relative to pet ownership in New York courts. If you love your dog or horse or snake like it’s your own baby and believe it would be better off with you, here are the things you need to be prepared to argue for in divorce proceedings.

• The major care of the pet. Which partner has been the one providing more of the day-to-day care of the pet, including managing basic needs (food, water, scooping poo, etc.) as well as emotional needs (affection)?

• Financial means to support the pet. Pets can be expensive, especially if something goes wrong, or if it’s a big pet that eats a lot, or if it’s an exotic pet or a special needs pet. (Yes, I said special needs pet.) Which partner is able to support the pet financially?

• Time to spend with the pet. Does one of you work significantly longer hours than the other? If so, it could be argued that the pet should be with the person who works less taxing hours, because they’ll have more time for the pet.

• Who brought the pet into the marriage? Even though pets aren’t considered property, it may make sense to consider who has a longer-standing relationship with the pet, because this might establish a primary bond.

• Space for the pet. Different pets need different kinds of living spaces. Is one of you better equipped to provide what the pet needs in terms of space? Be ready to defend it.

• Children’s relationship with the pet. If you have children, it’s important to consider their relationship with the pet (whether positive or negative). This, of course, could impact arrangements for children as well as pets, so be sure you think this one through carefully.

The best scenario is that you, your partner and your divorce attorneys approach the pet issue with a goal of arranging an agreement outside of court, including ownership and visitation terms. This may not hold up in court, but it is likely to influence the decision if both partners agree beforehand. However, couples often disagree over pets, and fighting this out in court is something to be prepared for.

If you can’t reach an agreement, one thing to consider is what you’re willing to give up to keep your pet. In other words, you should discuss with your lawyer the possibility of exchanging property for pet ownership.

This is all relatively new territory, but it’s an important area that needs to be considered carefully before and as you wade through the joy of divorce proceedings. It’s not just about you, after all, but about this guy:

Respectfully,

James J. Sexton

The United States of Divorce

For a change of pace, and to brighten up your Monday: Everything you never wanted to know about your nation’s relative inability to keep relationships going!

The Facts:

  1. There are 100 divorces every hour in the U.S.

  2. Slightly less than 50 percent of marriages in the United States end in divorce. This number is affected by outliers with multiple marriages, however.

  3. Like marriage, divorce in the United States is the province of state governments, and divorce laws vary from state to state.

  4. In the US, 41% of first marriages end in divorce, 60% of second marriages end in divorce, and 73 % of third marriages end in divorce.

  5. The average age for couples going through their first divorce is 30 years old.

  6. According to the 2011 United Nations’s Demographic Yearbook, the US had the sixth-highest divorce rate. Russia, Belarus, Ukraine, Moldova and the Cayman Islands had the top five spots in that order.

  7. 2008 voter data showed that states that tend to vote Republican have higher divorce rates than states that tend to vote Democrat.

  8. New York was the latest state to allow non-consensual no-fault divorce, in 2010.

  9. On average, it takes about a year to complete a divorce procedure in the US.

  10. A few high-profile court cases have involved children “divorcing” their parents; these are not actually divorces, but the legal emancipation of minors.

  11. In 2015, the Manhattan Supreme Court ruled that Ellanora Baidoo could serve her husband divorce papers through a Facebook message, and she became the first woman to legally serve her husband divorce papers via Facebook.

  12. As of 2011, for states with available data, the dissolution rates for same-sex couples are slightly lower on average than divorce rates of different-sex couples.

  13. Of marriages ending in divorce, the average length is 8 years.

  14. The average divorcee waits 4 years before remarrying, if they choose to remarry.

  15. Approximately 73% of people with parents still married make it to their 10th anniversary.

  16. 57% of people who grew up in homes where one or both parents were absent make it to their 10th anniversary.

  17. A third of all U.S. divorce filings in 2011 contained the word “Facebook.”

  18. According to U.S. statistics, if one partner smokes, a marriage is 75% more likely to end in divorce.

  19. Statistics have shown that approximately 75% of people who marry partners from an affair eventually divorce that person.

  20. People enduring more than a 45 minute commute are 40% more likely to divorce.

  21. Among the occupations with the lowest divorce rates are agricultural engineers, salespeople, nuclear engineers, optometrists, clergy, and podiatrists.

  22. Among the occupations with the highest divorce rates are dancers and choreographers, bartenders and massage therapists.

  23. Other occupations in the top 10 include casino workers, telephone operators, and nurses.

  24. The Air Force has the highest rate of divorce out of all the US military services.

  25. Women initiate about two-thirds of all divorces in the US.

  26. Among first marriages, 15% of men marry someone more than 6 years younger. On second marriages, this rises to 38%.

  27. Less than half of U.S. children younger than 18 are currently living in a home with two married heterosexual parents in their first marriage.

  28. The divorce of a friend or close relative may increase the chances that a couple will divorce.

  29. New York has the lowest share of currently married adult men in the USA.

  30. If you argue with your spouse about finances once a week, your marriage is 30 percent more likely to end in divorce than if you argue with your spouse about finances less frequently.

  31. Couples with no assets at the beginning of a three-year period are 70 percent more likely to divorce by the end of that period than couples with $10,000 in assets.

  32. If you have twins or triplets, your marriage is 17 percent more likely to end in divorce than if your children are not multiple births.

  33. If you’ve been diagnosed with cervical cancer, your likelihood of getting divorced is 40 percent higher than standard rates.

  34. Your likelihood of divorce is 20 percent higher if you’ve been diagnosed with testicular cancer.

  35. The only US President elected after a divorce was Ronald Reagan.

  36. Britney Spears and Jason Allen Alexander currently have the record for shortest US celebrity marriage, at 55 hours.

  37. Mel and Robyn Gibson’s divorce in 2009 is considered to be the largest celebrity divorce settlement, as Mel paid his ex $425 million.

  38. Among the most expensive celebrity divorces is Steven Spielberg’s settlement with Amy Irving ($100 million) and Michael Jordan’s settlement with Juanita Jordan ($168 million).

  39. In general, men tend to file for divorce in January over women at a ratio of about 2 to 1.

  40. The top 5 reasons for divorce include communication problems; infidelity or betrayal; financial problems; psychological, emotional, and physical abuse; and loss of interest.

  41. 79.6% of custodial mothers receive a support award, while only 29.6% of custodial fathers receive support.

  42. Among female respondents, those with a wedding bill higher than $20,000 divorced at 3.5 times the rate of those with a $5,000-$10,000 wedding bill.

  43. In recent studies it has been found that couple who meet online have a lower divorce rate and report higher levels of marital satisfaction.

  44. The use of Facebook and other social networking sites is linked to increased marital dissatisfaction and increased divorce rates.

  45. Among heavy social media users, 32 percent had thought about leaving their significant others, compared to 16 percent of non-social media users.

  46. Couples that use individual pronouns (“I” and “you”) more often are more likely to divorce than couples who use collective pronouns (“we” and “us”).

  47. Several studies have found that couples are more likely to fight after having a bad night’s sleep.

  48. According to a Brigham Young University study, couples reported lower marital satisfaction when one spouse’s gaming interfered with bedtime routines, with 75% of spouses of gamers desiring more marital input from their spouses.

  49. Interestingly, when both spouses gamed, a majority reported greater satisfaction in their relationships than the median.

  50. A 26-year longitudinal study found that when a husband reported having a close relationship with his wife’s parents, the couple’s risk of divorce decreased by 20 percent.

  51. Conversely, when a wife reported having a close relationship with her husband’s parents, the couple’s risk of divorce increased by 20 percent.

Are you sufficiently depressed yet? 

Respectfully,

James J. Sexton

 

New York Abandons Unique Form of Torture Previously Imposed on Law School Graduates

Did you hear about this recent New York state law change this week?

New York is going to adopt a uniform bar exam used in 15 other states. I think the full headline of the article should actually have been “New York Abandon’s Unique Form of Torture Previously Imposed Upon Recent Law School Survivors – Students Rejoice – Therapists Cry Foul!

I remember, with great nostalgia, spending hours in my local Starbucks studying the intricacies of New York State Corporation Laws and obscure state specific contract issues while my friends who had gone into investment banking were busy enjoying their mid-20’s.  I knew I was going to be a divorce lawyer the day I started law school and, thus, it added insult to injury (having already suffering the indignities of the required “Federal Income Taxation” class at Fordham Law School) knowing I only needed to remember this drivel long enough to regurgitate it onto the final exam never to access it again in my chosen profession).

 

The uniform bar exam is more a function of attempting to “streamline” the test so that it’s easier to grade and easier to administer on a computer.

But to be fair (and candid) the bar exam is just the last in a series of hurdles they make you jump so you can put “ESQ” after your last time.  By the time you get to it – you’ve jumped so many you don’t care anymore.  I sincerely think you could make the final three months of law school the same as an episode of “Fear Factor” and 99.9% of students would have the most bored expression on their faces while chomping on bull testicles in a vat of spiders.  The whole experience of law school is designed to see how badly you want it.  Virtually nothing you learn is of any practical use in the day-to-day practice of law.

I applaud the change to the new exam (although I still think they should consider the alternative I’ve suggested).  It would be far more fun to watch and potentially less traumatic than the current bar exam format. I live two blocks from the Javitz center (where I took the bar exam 14 years ago) and still walk three blocks out of my way when heading uptown so I don’t have to walk past it.  I’ve got the same PTSD most recovering law students suffer from.  I spent two days in that center wondering if the three years prior would just be a waste because I couldn’t remember, at a specific moment in time, how to apply obscure property concepts to a question that may or may not implicate admiralty law issues.

And people ask me why I can’t go to a car show there…..

 

Respectfully,

James J. Sexton

15 Things You Might Not Know: Child Custody Law in New York State

If you’re considering a divorce in New York and you have children, it will be important for you to understand the legality around child custody. To that end, I’ve compiled an overview of the basics. For a more in-depth look at your particular situation, please feel free to contact me to discuss.

Child Custody Law in New York State

For New York courts to have jurisdiction on your case, the child must have lived in New York for the past six months. If the child is younger than six months, he or she must have been born in New York (except under extenuating circumstances).

Neither parent has a preferred right to custody of their children in New York.  If there is no custody order, either parent can keep the child with him or her. If the case goes to court, the custody decision must be made in the “best interests of the child.”

Either parent can apply for custody in Family Court. You can attempt to get custody in Supreme Court after divorce proceedings have begun, but you may only have one case ongoing at a time.

The status of “primary caretaker” of the child is likely to be important in making decisions regarding custody.

The parent who has physical custody of the child when the custody application is made to the court may have an advantage in the courts.

The court can consider where the child wants to live, but does not have to follow the child's wishes. The older a child is, the more a court will consider his or her wishes.

Parents may share joint legal custody in New York. The court usually will give custody to only one parent if parents are not able to cooperate.

Custody or visitation can be changed if there is a significant change of circumstances that affect the child’s interests.

If the parent who has custody of the child wants to move, he or she may need to get permission from the court. Alternately, the other parent can apply to the court for an order that prevents the move or changes visitation.

If the parents were never married, and the parents never signed an “Acknowledgment of Paternity,” the father has no custody or visitation rights. To apply for custody and visitation, he must first legally establish paternity.

If you have a custody order and the other parent takes the child from you or won’t return the child from a visit then the other parent could be arrested for kidnapping. He or she could also be charged with interfering with your custody.

The parent who does not have custody of the child can almost always get “frequent and meaningful” visitation. Visitation rights will only be denied if visitation is deemed to be harmful to the child in some way.

A lack of payment of child support is not sufficient means to refuse visitation. It can, however, lead to the non-paying parent to go to jail.

Court-ordered visitation cannot be refused unless it is believed that it would put your child in danger.

Half-siblings and grandparents can apply for visitation rights, although the court isn’t obligated to grant these.

While this covers the basics of New York child custody law, it’s highly likely that you will benefit by seeking legal counsel on these matters. If you’d like to discuss your particular situation, please feel free to contact me.

 

Respectfully,

James J. Sexton