Family Law

How We Can Help You in Your Family Law Matters

When it comes to family law, the state of New York does things a little differently than other states. Here at Whitson & Tansey, we believe that the best clients to have are educated clients, which is exactly why we want to provide a general overview of the specific family law sub-practice areas in which we specialize.

Divorce

In New York, you can file for divorce regardless of whether one spouse is at fault or not. This means that New York is a ‘no-fault’ divorce state, meaning not getting along with your spouse can be enough of a reason to split. While the state also allows divorce on the proven grounds of adultery, continuous abandonment for up to a year, cruel and inhumane treatment, three or more years of incarceration or living separate and apart pursuant to a written agreement for a year or longer, these grounds are rarely, if ever used any longer. 

Child Custody

There are two components to custody.  The first is legal custody.  Legal custody involves the right and the obligation to participate in making important decisions about the upbringing of one’s child in areas such as health, education and religion.  It is presumed that parents will have joint legal custody, but in limited circumstances, one parent may be awarded sole legal custody.  The second component of custody is referred to as “parenting time.”  This prong addresses where the child will live and how custodial time is shared between the parents.  

Custody orders are always made with the best interest of the children in mind. This means the judge will account for the parents’ abilities to care for the children, the parents’ ability to cooperate with each other, the parents’ individual work schedules, any past history of domestic violence in the family, and what the children want for themselves.  It is important to note that New York Courts place great emphasis on the parents’ willingness to foster a positive relationship between the child and the other parent as a key indicator of parental fitness.  Parents who don’t demonstrate that they are willing to foster a positive relationship may end up with limited custodial rights. 

Visitation Rights

Like custody orders, visitation orders are determined with the children’s best interest in mind. Usually, the custodial parent cannot mess with the non-custodial parent’s visitation schedule. What’s more, the custodial parent may be held in contempt of court if they try to prevent the non-custodial parent from seeing the children.

There are a couple of different types of visitation orders in the state of New York: supervised visits, unsupervised visits, and therapeutic supervised visits. For supervised visits, someone from the local social services department must be present for the duration of the visit, as the court has deemed the non-custodial parent a potential threat to the children. These visits are similar to therapeutic supervised visits, in which a mental health professional is present for the visit out of concern for the non-custodial parent’s parenting skills. However, this is not the case for unsupervised visits, during which the non-custodial parent can be with the children without anyone else there.

Child Support

The state of New York takes the enforcement of child support laws very seriously. To illustrate this, a parent who is repeatedly past due on child support payments may have his or her professional license suspended until the outstanding payments are made. Other examples include expedited contempt proceedings for the parent who is late on child support payments, as well as laws that extend these child support orders to “any legally responsible relative” who can provide benefits, like health insurance, to the children who are suffering as a result of these late payments.

Child support is calculated according to a standard support requirement, which in turn is determined by a statutory calculation. However, this number can vary greatly depending on the individual circumstances of the non-custodial parent, and the courts are at their discretion to modify child support orders for these reasons. Better yet, these orders can always be adjusted or modified down the road in the case of unforeseen events taking place.

Grandparent Rights

Under specific circumstances, grandparents may have rights to seek court-ordered visitation with their grandchildren.  In order to have legal standing, the grandparent must demonstrate that:  1) they have an established relationship and bond with the grandchild; 2) the parents/guardians of the grandchild are unjustifiably denying contact between the grandparent and grandchild, and 3) it is in the grandchild’s best interest to have continued visitation with the grandparent.  In more extreme circumstances, such as where the parents are unavailable (due to death, hospitalization or incarceration, for instance) or grossly unfit to raise a child (due to addiction or serious mental health issues, abuse or neglect for instance), grandparents may apply for and obtain custody of their grandchildren.  

Adoption

New York does not prohibit anyone from being adopted; that means that even adults can be adopted, too. However, the age of consent for adoption in this state is 14 years old. Generally speaking, any adult can adopt. If that adult is legally married, though, then both spouses must legally adopt the person. New York also does not place any restrictions on same-sex couples or people with non-conforming genders who wish to adopt.

However, you must be a New York resident in order to adopt. This means you have to have lived in the state of New York for at least three months before the adoption is finalized. Fortunately, hopeful parents-to-be can start the adoption process before they satisfy the residency requirements.