Children & Divorce Agreements
There are three key issues when children are involved in a divorce or separation.
1. Child Custody
Physical Custody (where is the child's main residence) and Legal Custody (who makes decisions about the child) are the two elements of custody. Custody may be "joint" (shared by consent between the parties), or it may be "sole," -- as determined by agreement or by court order. Before custody is awarded the court usually undertakes various investigative steps to determine what is in the best interests of the child(ren). If custody is not decided upon by consent (with the court and a court appointed law guardian representing the child) then a hearing takes place at which both parties present evidence to determine who should have custody in the best interests of the child(ren).
2. Child Visitation
The parent who does not have physical custody has either:
A) Reasonable Rights of Visitation.
B) A specified visitation schedule, or is limited to supervised visitation.
Only in very rare cases may the non-custodial parent be denied visitation. Usually, this is for very specific reasons such as severe substance abuse, a history of domestic violence or lack of interest in the child.
3. Child Support
In New York the amount of child support paid by the non- custodial parent to the custodial parent is guided by the state Child Support Standards Act.
What are Options for Visitation?
When it comes to visitation, many parents opt for the non-custodial parent (i.e., the parent who does not have primary physical custody) to have "reasonable" visitation. Reasonable visitation means that the custodial parent and the non-custodial parent will work out visitation issues in the future in a reasonable manner. Reasonable visitation is used when parents are going to maintain a somewhat cordial relationship and want the child to be able to visit the non-custodial parent on a reasonable basis.
A set visitation schedule, on the other hand, is exactly what it sounds like. It is a schedule that you and your soon-to-be ex-spouse agree upon. You can agree upon certain times and days that the non-custodial parent will have visitation time with the child or children. You can also specify what holidays the child or children will spend with whom.
What is the Difference Between Legal Custody and Physical Custody?
In New York there is a difference between Legal Custody and Physical Custody. Parents can retain joint legal custody, as well as joint physical custody, or One parent can also retain sole legal custody, as well as sole physical custody.
Legal Custody refers to the whether a parent has decision making power regarding the child or child?s education, religious upbringing, and medical decisions. Physical Custody refers to who the child or children will reside with. What is a Child Support Stipulation?
The Child Support Standards Act requires certain Child Support Guidelines be followed unless both parties agree otherwise in writing. A Stipulation Regarding Child Support is an agreement that you and your soon-to-be ex-spouse enter into as part of your divorce where you can:
1. Opt out of the Child Support Guidelines and 2. sets the terms and conditions of the child support for your child or children.
However, be aware that the minimum amount of child support allowed by NY law is $25 per month per child. The NY courts strictly require that your Stipulation Regarding Child Support contain certain legal language regarding the Child Support Standards Act, the Child Support Guidelines, complicated child support calculations and the reasons for deviating from these guidelines. Often, pro se divorcees have had their divorce papers rejected by the court because they made mistakes in their Stipulations Regarding Child Support..