Frequently Asked Questions

The following information includes frequently asked family law questions. These questions and answers are general in nature and should not be used as specific legal advice for your case. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For specific questions about your case, contact Barton R. Resnicoff today at 866-738-4813.

How can a parent remedy the frustration of visitation rights?
A variety of remedies are available to provide relief to the non-custodial parent who has had visitation rights frustrated. The non-custodial parent can commence an action to show cause concerning contempt for violating the court's order pertinent to visitation. This is not a favored alternative. The court also has power to modify support, yet this works a hardship on the welfare of the child, and is similarly not favored. Another alternative is to ask the court to require the custodial parent to post a monetary bond which would be forfeited if the custodial parent frustrates visitation. Usually a history of frustration of visitation is the threshold that must be shown to the court, not a sole incident.

How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline; this is designed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other. 

When can a child support order be changed or modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent's financial situation, such as an appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child, such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

What happens to a father who refuses to pay court ordered child support?
Under the Child Support Enforcement Act of 1984, it is against the law for any father, presumed or assumed, to fail to pay court ordered child support to the custodial guardian, regardless of joint custody. Federal laws permit the interception of tax refunds to enforce child support orders; additional methods of enforcement include wage attachments, seizure of property, suspension of a business license, and possible driver's license revocation. In the event that none of these attempts are entirely successful, the court of law that issued the child support order can hold the father in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term.

Can I object to the terms my spouse has requested in our divorce?
Yes, you (along with your attorney) can reject the terms of your spouse's offer. Upon receiving an objection to the offer, a New York divorce court may, at its own discretion, determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. If the court finds that the case involves one or more of these complex or substantial issues, the court may implement a case management plan.

Are there different types of adoption?
Adoptions takes place in various forms, and are generally classified as independent, agency, step-parent, relative placement, and adult adoption. Independent adoption occurs when birth parents and adoptive families find each other on their own or through the help of an adoption intermediary (i.e. a pastor, family friend, or doctor). Agency adoptions are handled through a child placement agency; approximately two-thirds of all adoptions in the United States are arranged through agencies.

In a step-parent adoption, the adopting family is a birth parent with a new spouse; this usually follows a divorce or spousal death. Adult adoption is the process whereby a person eighteen years or older is legally adopted by one or more persons eighteen years or older. Relative placement adoption occurs when the birth parent(s) is still a minor, has died or is disabled, or the child has been removed due to abuse and neglect and another relative assumes physical custody and responsibility for the child.

Should I make a prenuptial agreement with my future spouse?
The answer to that depends on your specific circumstances, and on the two of you as individuals. Financial planners and divorce attorneys argue that prenuptial agreements should be considered if any of the following particulars apply: there are children involved from a previous marriage, there is an individual ownership of a business or family company, there are significant individual assets or substantially unequal income between parties, or there is concern about a future spouse's personal debt. Since laws about what constitute marital property and what governs the division of assets after marriage vary from state to state, a prenuptial agreement can work as a legal protection mechanism for both parties.

Often, prenuptial agreements are misunderstood. It is argued that prenuptial agreements are an attack on trust, or evidence that financial matters outweigh the presence of love in a marriage. This is not necessarily true. Most prenuptial agreements are made by couples who want to bypass the mandates of a court in the event of a divorce or death, or couples who have children or grandchildren from prior marriages and want to ensure that individual property, such as businesses or estates, pass down to the family rather than to the spouse. Regardless of the circumstances, prenuptial agreements are comprehensive in nature and should be approached without emotional misconceptions.

Is a father who never married the mother still required to pay child support? What if the father is not allowed to see the child?
Regardless of marital status, an 'assumed father' is any biological father of a child for whom paternity has been established by either the admission of the father or paternal testing. Assumed fathers are required to pay child support. Additionally, a man who never marries a child's mother, but welcomes the child into his home and supports the child as his own may gain a 'presumed' father status, and typically, the presumption of paternity holds the same rights and responsibilities of an assumed father with regard to parental liability and monetary support.

Every parent has a financial obligation to support his or her children, and child support should never be confused with custodial or visitation rights. There is no state which permits a parent to withhold child support because of disputes over custody or visitation. If a non-custodial parent believes his or her rightful child visitations are being disrupted, it is recommended they contact an attorney to file a claim against the custodial parent in a court of law, rather than stop making child support payments as a form of retaliation. However, in the event of parental kidnapping, in which the custodial parent completely disappears with the child, any wage garnishments or income attachments made for child support on behalf of the non-custodial parent would cease.