Practice Areas and Legal Definitions

Custody:
Custody is the charge and control of a child, including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody usually refers to a combination of physical and legal custody. Many factors influence an award of custody, and the way a case is presented in court can have a large impact on the result for you and your children. If you are awarded the children as a primary custodial parent, it has far reaching consequences both for you and for their well-being and development.

Child Support:
Child support is a periodic payment made to a custodial parent from a non-custodial parent to help compensate for a child's living expenses (i.e. food, clothes, etc.), along with any other related debts. When one parent is awarded sole custody, as in the event of a divorce, the non-custodial parent is required to fulfill his or her child support obligation by making set payments, whereas the custodial parent meets his or her support obligation through the custody itself. When parents are awarded joint custody in a divorce, however, the support obligation is shared and is based on a ratio of each parent's income and the amount of time the child spends with each parent.

The obligation to support minor children cannot be waived by either parent and is a right enjoyed by the child, not the parent. The State of New York has guidelines that factor into the amount of child support, such as the amount of time spent with the child, the income of both parents, and the standard of living the child is accustomed to. The Court may allow deduction items such as catastrophic medical expenses and travel expenses for visitation.

Jurisdictional Issues:
When faced with a relocating custodial parent, the court will generally require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non-custodial parent an opportunity to go to court and seek orders restraining the relocation of the child.

For over twenty years, these so-called move-away cases have gone back and forth on allowing and disallowing a move by the custodial parent with the minor children. While the best interests of the child have always been central to the decision, the uncertainty has made this area murky. Assistance of counsel is highly recommended if a disagreement exists between the parents. Issues involving two or more different states are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnapping Prevention Act (PKPA).

Spousal Support (Alimony):
Alimony is temporary or permanent financial support paid from one separated spouse to the other, either in one lump sum or in installments. Alimony is designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support. Alimony differs from child support because it is at the discretion of the judge. Child support is usually determined by state-sanctioned guidelines.

Child Visitation:
The right of a non-custodial parent to visit or spend time with his or her children is a crucial legal arrangement. The term "child visitation" refers to the time when the non-custodial parent has the right to be with the child. Child visitation can take a variety of forms or schedules. Some common arrangements include the following:

• Alternate weekend visitation with the non-custodial parent, including three-day holidays.
• Mid-week visitation with the non-custodial parent.
• Sharing of the child during periods of school recess: winter, spring and summer.
• New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years.
• Mother's Day with Mother, Father's Day with Father.
• Alternate years on the child's birthday.
• Open telephone contact by the parent who does not have actual physical custody of the child.
• Exchange of a few days of visitation as mutually agreed without the need for a change or modification of the court order.

Divorce:
A court of law is the only venue in which one can obtain a divorce decree, dissolution, legal separation, nullity, or other form of terminating a marriage. Along with the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

Adoption:
Adoption is the legal process by which a person becomes a lawful member of a family that is different from his or her birth family. Once a final order of adoption has been ruled by a court of law, the adoptive parents gain the same rights and responsibilities as parents whose children are born to them; subsequently, an adopted child gains the same rights as birth children in regard to inheritance, child support, and other legal matters. In most U.S. jurisdictions, at the time the adoption is finalized, the adopted child's name is legally changed, and the court orders the issuance of a new, amended birth certificate.

Prenuptial Agreements:
A prenuptial agreement, or a premarital agreement is a written contract created by two individuals who plan to be married. This agreement lists all individually owned property, such as homes and businesses, family assets, stocks and bonds, savings accounts and debts, and specifies what will and will not remain individually owned property after the legalization of marriage. Prenuptial agreements also specify whether spousal support will be paid in the event of a divorce, along with the intentions regarding distribution of individually owned property upon death.

Factors that cannot be stipulated in prenuptial agreements are binding legal matters such as child support. For example, a couple cannot lawfully agree in a prenuptial agreement that either party will in no way be responsible for restitution. A few states do not allow prenuptial agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce, although a prenuptial agreement can factor into the degree of compensation.

Property and Debt Division:
Marital property attained during marriage, regardless of whose name it is under, can be divided. Marital property can include real estate (including a home bought in contemplation of a marriage), a pension plan, vehicles, bank accounts, income tax refunds and household furnishings. However, property that is inherited by one spouse (i.e. a family business or estate) is not considered marital property.

If you are contractually bound with your ex-spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property, even if the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations determined to be non-dischargeable by the bankruptcy court or in state court.

Take Action to Protect Your Rights:
If you or a loved one is going through a divorce or child custody case throughout New York City and you need the help of an experienced family lawyer, call Barton R. Resnicoff today at 866-738-4813, or complete the contact form provided on this site to schedule your consultation.