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How to get custody of your child in florida


Filing for Parental Responsibility in Florida: 4 Steps (FL)

Parents request orders for a parenting plan, time-sharing schedule and child support by filing a case in family court. This initiates the litigation process.

If you and the other parent agree on all issues, in some cases you can submit your settlement agreement at the same time.

Custody X Change is software that creates parenting plans and custody schedules you can file with the court.

Make My Florida Plan Now

If you hire a lawyer, they'll prepare and file family court forms for you. If you're representing yourself, follow the steps below.

Step 1: Complete your family court forms

The forms below have been approved by the Florida Supreme Court for use in any county. Ask your county clerk's office whether it prefers certain versions or requires additional forms. Some counties may allow you to complete forms online.

All forms should be typed or printed in black ink, and many require you to sign in front of a court clerk or a notary public.

All parental responsibility and time-sharing cases need a cover sheet, a Uniform Child Custody Jurisdiction and Enforcement Act Affidavit and a Child Support Guidelines Worksheet.

Then complete the forms that apply to your case below.

  • To open a divorce case at the same time as your parental responsibility case, complete the Petition for Dissolution with Dependent or Minor Child(ren). If either parent plans to move more than 50 miles away, complete the Petition for Dissolution with Dependent or Minor Child(ren) and Relocation instead.
  • If you're separated from your spouse but not divorcing, and you want to request child support, complete the Petition for Support Unconnected with Dissolution with Dependent or Minor Child(ren).
  • If you're separated but not divorcing and want to request child support and a parenting plan (including time-sharing), complete the Petition for Support and Parenting Plan Unconnected with Dissolution with Dependent or Minor Child(ren).
  • If you're not married to the other parent, complete the Petition to Determine Paternity and for Related Relief (even if paternity is not in question). The mother or father can file this form.

Your case might require additional Florida family court forms:

  • If you can't agree how to handle responsibility, time-sharing and childcare expenses for the duration of the case, complete the Motion for Temporary Support, Time-Sharing, and Other Relief with Dependent or Minor Child(ren) to request a temporary court order.
  • If your safety or your child's safety is at risk due to the other parent, file a Petition for an Injunction for Protection Against Domestic Violence (also known as a restraining order). You can also file a Request for Confidential Filing of Address to keep your address private.
  • If you can't afford court fees, ask to have them reduced or waived by submitting an Application for Civil Indigent Status.
  • If someone who is not a lawyer with the Florida Bar helps you fill out forms, you must submit a Disclosure from Nonlawyer. The nonlawyer also needs to sign the forms they help you complete.

Step 2: File your family court forms and pay fees

Your case officially begins when you file the initial petition with your local circuit court. The parent who opens the case is referred to as the petitioner, while the other parent is the respondent. Both are referred to as litigants.

All litigants have the option to submit paperwork in person to the circuit court clerk.

Litigants representing themselves can opt to file through the Florida Courts E-Filing Portal. If you choose this option, the majority of your court communication and paperwork will be electronic. (Review the e-filing rules, noting that forms requiring notarized signatures must be scanned.)

When filing, you have to pay filing and administrative fees. Petitions usually cost between $300 and $500 each. In addition, one parent has to prove that they've been a Florida resident for at least six months by providing a copy of their driver's license, state I. D. card or voter registration card.

The clerk will return copies of paperwork to you for the next step.

Step 3: Serve the other parent

After filing, the petitioner must formally notify the respondent through a process called service.

Take your court paperwork to the sheriff's office or a private processing server to have them deliver it to the respondent. The sheriff generally charges less than a private server. If the other parent can't be located for service, contact the court clerk.

Step 4: Wait for the other parent to respond

The other parent must file a response to your petition (or request an extension) within 20 calendar days of service. They are also required to serve you with copies of their response.

The respondent has the option to contest your petition, which means they challenge some or all of it. They can add a counterpetition to request something not included your filing, or to propose an alternative, such as a different time-sharing arrangement.

Alternatively, the other parent can file an uncontested response, which means they agree with your petition and don't want to challenge anything. They may still file a counterpetition to request something additional, in which case you need to respond by filing an Answer to Counterpetition.

If the other parent doesn't respond or request an extension before the deadline, you can file a Motion for Default. If the judge approves your motion, the case proceeds without the other parent's involvement.

Information for respondents

When you're served with the other parent's petition, you must respond within 20 calendar days.

Your response paperwork depends on your situation. Possible forms include:

  • Answer to Petition for Dissolution of Marriage (without counterpetition)
  • Answer to Petition and Counterpetition for Dissolution with Dependent or Minor Child(ren)
  • Answer to Petition to Determine Paternity and For Related Relief
  • Answer to Petition and Counterpetition to Determine Paternity and for Related Relief
  • Motion for Scientific Paternity Testing

You can e-file or submit your response to the clerk's office in person. You also must serve the other parent with copies of your response (instructions in Step 3).

If you miss the deadline and the other parent is granted a default motion, you can file a Motion to Set Aside Default Judgment. You'll need to provide an explanation and evidence for why you didn't respond on time.

Department of Revenue (DOR) Child Support Program

In some circumstances, parents may obtain paternity, child support or time-sharing orders from the Department of Revenue Child Support Program. These orders can be issued in conjunction with orders from your family court case after you follow the steps above.

If parents don't need a divorce or parental responsibility and time-sharing decisions, they can skip the family court steps above and instead go through the DOR's process.

Preparing for what comes next

The next step in the family court process depends on your situation. If parents agree on everything requested in petitions and counterpetitions, they can move on to the settlement process. If your case is contested, the court will order you to mediation.

No matter what's next for you, take advantage of custody technology to be fully prepared.

The Custody X Change app offers a parenting plan template, personalized time-sharing calendars, a shared expenses tracker and more.

You can use the app in many ways in Florida: to negotiate, prepare evidence, file for settlement and more.

Be prepared for every step of your case with Custody X Change.

Custody X Change is software that creates parenting plans and custody schedules you can file with the court.

Make My Florida Plan Now

Custody X Change is software that creates parenting plans and custody schedules you can file with the court.

Make My Plan

Custody: Filing for custody (parental responsibility)

Legal Information: Florida

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Updated: 

March 3, 2022

How do I file for custody (parental responsibility)?

How you file for custody (parental responsibility) will depend upon the circumstances of your case.

If you are married but are involved in a divorce proceeding in Florida, parental responsibility will be determined in the divorce proceeding. If you are married and have not begun a divorce, you would file in the circuit court where the child lives.

If you are not married, you may file a petition to determine paternity. The court will order DNA testing, enter a parenting plan dealing with parental responsibility and creating a time-sharing arrangement and award child support. This can be done in the circuit court in the county where the child lives. However, there can be pros and cons to establishing legal paternity - you may want to talk to a lawyer about the pros and cons of filing to establish paternity or filing for custody before you file.

The Florida Courts website has many of the relevant forms that need to be filed on their website.

Also, if you are filing a petition for an injunction for protection against domestic violence, you can ask for temporary custody of your child in your petition. However, any custody order that you get would expire when the injunction expires.

Note: If you want to modify (change) a parenting plan, you may file in the circuit court in the county where either parent and the child reside or in the circuit court in which the original order was entered.1

1 F.S.A. § 61.13(2)(d)

Where can I file for child custody? (Which state has jurisdiction?)

Generally, you must file in the “home state” of the child.  The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the child custody proceeding is started.  If your child is less than six months old, the home state is the state where the child has lived from birth.  This means that if you and your child recently moved to Florida, you generally cannot file for custody in Florida until you and your child have lived here for at least six months.   Until then, Florida courts do not have jurisdiction (power) to make a child custody determination.  For the first 6 months that you are living with the child in Florida, either you or the other parent could start a custody action in the state that your child most recently lived in for at least six months.1  However, if a case is started in the former state where you lived, then you would likely need permission from the judge in that state to move to Florida with the child, which can be difficult to get.

However, there are exceptions to this “home state rule” described above.  In some cases, you can file for custody in Florida when the child and at least one parent have “significant connections” to Florida (aside from physically being in the state) and substantial evidence is available in Florida concerning the child’s care, protection, training, and personal relationships.  Usually, however, you can only do this if no other state qualifies as a home state or if the home state has agreed to let Florida have jurisdiction. 2  This can be complicated. If you think this applies to your situation, please talk to a lawyer.  Go to our FL Finding a Lawyer page.

1 F.S.A. § 61.514(1)(a)
2 F.S.A. § 61.514(1)(b)

Do I need a lawyer to get custody (parental responsibility)?

You do not need a lawyer to file for custody (sole or shared parental responsibility).  However, with the help of a lawyer, it may be easier for you to gather and present the information you will need to convince the judge of your position on what the parenting plan and time sharing schedule should be. Also, if the other parent has a lawyer, it will be more difficult for you to present your case.  For free legal assistance and legal referrals go to our FL Finding a Lawyer page.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Can I get custody (parental responsibility) of my child if I file for an injunction for protection against domestic violence?

You may ask for temporary custody (parental responsibility) of your child when you file a petition for an injunction for protection against domestic violence in Florida. 1  The clerk of court will provide you with a petition form that includes a section to complete if you want the judge to make a temporary parenting plan where you can request that the abuser’s time-sharing be limited, prohibited, or supervised.2  However, parenting plan and time-sharing provisions granted with an injunction expire with that order.1  For more information on how to get an injunction for protection against domestic violence in Florida, please see our Injunctions for Protection Against Domestic Violence page.

1 F.S.A. § 741.30(5)(a)(3) & (6)(a)(3)
2 F.S.A. § 741.30 (3)(k)

I fled to Florida with my children to escape domestic violence. Can I get temporary emergency custody of my child in Florida even if another state is the child's "home state"?

Possibly. If you have come to Florida with your child because you, the child, or a sibling of the child is subjected to or threatened with mistreatment or abuse, you can apply for temporary emergency custody in a Florida court. 1  If there is already a child custody order from another state or there is an ongoing custody case in another state, any temporary custody order issued by the Florida court would be valid for the period of time that the judge believes that it would take you to return to the original court to try to modify (change) the original order.2 

Getting temporary emergency custody can be difficult to do.  We strongly recommend that you get help from a lawyer if you are considering filing for temporary emergency custody. Go to FL Finding a Lawyer. For information on what state is the “home state,” please see Where can I file for child custody? (Which state has jurisdiction?)

1 F.S.A. § 61.517(1)
2 F.S.A. § 61.517(3)

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Controversial relationship: how to get the right to a child | Articles

In Magnitogorsk, a young man with difficulty was able to get custody of his younger sister after the death of his mother - the right to a child was unexpectedly declared by a previously convicted father, who had never been interested in their life. The story is not over yet - as in many other similar cases, the family will face long legal battles. "Izvestia" figured out what awaits minors, for the guardianship of which several parties claim at once.

How children are divided in court

22-year-old Yaroslav Ionush, a member of the Ministry of Emergency Situations, has recently become a temporary guardian for his eight-year-old sister - their mother died two years ago. However, this had to be achieved through the courts.

Yaroslav said that their mother died at the age of 38, when his sister was six years old. He took responsibility for the child, since even during the life of his mother he replaced the father of the girl - the man who was his stepfather left the family in 2014 and later did not take any part in her life. He also did not come to the funeral, he did not express a desire to pick up his daughter. However, Yaroslav was denied guardianship of his sister, since his father is alive and he must first be limited in his rights.

contentious relationship

Photo: depositphotos/Kostia777

The courts turned out to be a difficult test - the girl's previously convicted father filed a lawsuit to transfer the child to him for upbringing, and guardianship, citing some kind of psychological examination, stated that the girl wants to live with him . Yaroslav suggested that her father decided to take custody of her daughter for financial reasons.

When the man tried to establish contact with the girl, he failed - she refused to go out with him, was not happy with his gifts. New forensic examinations confirmed that the girl had no connection with her biological father.

As a result, he was limited in parental rights, and in September Yaroslav received temporary custody of the girl - so far only for six months. After this period, legal proceedings may begin again.

In Moscow, a court recently took place in another similar case - former cohabitants argued for the right to raise a child. This story began in the winter of 2021 - Adamkhan Shukurov took his 10-month-old daughter and kept her for more than a week. It was possible to rescue the girl with great difficulty, but this was followed by litigation. At the trial, Shukurov's side claimed that his former cohabitant Oksana Smetankina was a bad mother, but could not confirm this. As a result, the court took the side of Smetankina, establishing her right to a child.

contentious relationship

Photo: ITAR-TASS/Stanislav Krasilnikov

Both cases ended successfully, but the child experiences great stress in such situations. For example, a few years ago, near St. Petersburg, a seven-year-old girl was taken away from her grandmother and handed over to her father, who was convicted three times and was serving a sentence at that time. It was possible to cancel the decision of the administration only through the court with the participation of the Commissioner for Human Rights in the Leningrad Region. And in Tyumen, at the beginning of the year, a whole epic unfolded, when the child was taken away from the relatives of the deceased spouse by force in order to give it to the father by a court decision.

What are the interests of the child

Lawyer Viktoria Dergunova notes that all disputes about children, regardless of who they are between, should always be resolved in the interests of the child. At the same time, the Family Code does not disclose this concept, so it must be interpreted in accordance with the Convention on the Rights of the Child and the practice of the European Court of Human Rights.

- In the jurisprudence of the ECtHR, the “best interests of the child” are primarily considered the following two: maintaining ties with the family, unless it is established that these ties are undesirable, and the possibility of developing in a healthy environment , Dergunova told Izvestia. - The court should not be engaged in predicting how a child's life will turn out in a family about which he has no memory, with whose members he has no emotional connection.

She notes that the best interests of the child should be understood as a frame of reference within which the situation in which the child finds himself should be considered.

— The ECtHR has repeatedly emphasized the inflexibility of Russian legislation in terms of regulating the issues of a child's communication with significant people who are not included in the circle of his close relatives within the meaning of Art. 55 Family Code ,” Dergunova said. — Inflexibility is expressed in the fact that Russian legislation contains an exhaustive list of persons entitled to contact with a child. The legislation does not provide for any exceptions, nor does it take into account the variety of family circumstances that may be taken into account in order to ensure the best interests of the child.

contentious relationship

Photo: depositphotos/dimaberkut

As a result, she notes, In practice, situations often arise when a person who is not a relative of the child, but who is deeply attached to him and cared for him, under no circumstances has the right to communicate with him .

Attorney Anton Zharov notes that the current legislation on guardianship and guardianship contains an indication of the priority of appointment as guardians or trustees only for grandparents, adult brothers and sisters of a minor ward, and great aunts and grandfathers, cousins ​​and sisters are not covered by this rule. articles.

He notes that in Russia the family is elevated to the rank of something sacred - if a person is biologically related to a child, then he acquires significant rights, which leaves an imprint on judicial practice.

- As a result, the priority of the child's interests over the priority of parents suffers , - he explained to Izvestia. - Although, in principle, we have stipulated that the court should decide on the place of residence of the child in a disputable situation based on his interests. And a lot depends on the judge. The Supreme Court has repeatedly said that it is necessary to avoid a formal approach in such cases, that it is necessary to examine not only the materials of the case, but also communicate with people, and require guardianship to carefully examine relationships in the family. Another thing is that with the existing workload and qualifications, do judges always do this? Probably not always.

Another question is guardianship behavior, Zharov notes. In his opinion, the principle of its work can be described as "no matter what happens."

“Guardianship agencies often take the least resistance approach so that, God forbid, there is no scandal,” he says. - The interests of the child in this case often play a secondary role, because each state body seeks first to save itself, and then, if possible, to save the children. And after all, no one will condemn the guardianship authority for giving the child to the father - it is much easier to pretend that we do not see any other circumstances, that here is the father, he is the father.

contentious relationship

Photo: Izvestiya/Alexander Kazakov

What guides the court when choosing a guardian

O.E. Kutafina, co-founder of the ANO for the legal support of women and children "Mom in the right" Elena Grin notes: according to Art. 63 of the Family Code, parents have the priority right to raise their children over all other persons and have the right to demand the return of the child from any person.

“But the court has the right not to transfer the child if it considers that such a transfer does not meet its interests ,” she told Izvestia. - For each specific case, everything is investigated - how this parent took care of the child during the life of the other parent, the conditions created for the child, whether he remembers him, from the age of 10, the opinion of the minor himself is also taken into account.

Lawyer, specialist in family law Larisa Vetter also notes that the only legal representatives of the child are the parents.

- That is, , according to the meaning and norm of the law, it is first necessary to restrict the rights or deprive the rights of a parent if there are good reasons , - she told Izvestia. - And only then the person who takes care of the child can be considered as a potential guardian. Restriction and deprivation of rights are the most difficult cases. It is necessary to prove that the parent harms the child by his actions.

Grin notes that in such cases a forensic psychological examination of parent-child relations is carried out, which is otherwise called “psychological and pedagogical examination”. In the course of it, the personality of the child, father, mother and other relatives who plan to live or live with him, as well as the psychological characteristics of their relationship, are examined.

“The courts are very sensitive to the preferences of a child over 10 years old ,” Grin said. — In younger children, the preference question is rarely asked because the child's opinion largely depends on the opinions of the adults around him, and also because such a question can exacerbate the child's internal conflict and affect the results of the entire study.

contentious relationship

Photo: RIA Novosti / Vladimir Song

If a question about preferences is asked and the child responds with a clear desire to live with one of the parents, then the expert must determine whether this desire is a free desire of the child or a repetition of other people's words and the result of psychological influence, Grin explains. According to her, at a younger age, when answering this question, the child more often chooses the parent in front of whom he experiences more fear. The hostile moods of the child towards one of the parents, the expert must also clearly understand and determine their nature - it happens that negative feelings are fueled by another parent and do not basically contain serious problems in the relationship between the parent and the child.

How parents deceive the court

“Guardianship is often regarded by negligent relatives as a tool for obtaining benefits and other types of state support ,” Alexey Gavrishev, managing partner at AVG Legal, told Izvestia. “However, thanks to the work of guardianship authorities, as well as the provisions of the law, in most cases such intentions are easily detected and mercantilely motivated relatives do not receive guardianship.

Victoria Dergunova also notes that it will be difficult for an unscrupulous parent to deceive guardianship and court - his sincere desire to take the child will not be enough here.

— It will be necessary to provide evidence that confirms the intention and desire of unscrupulous parents to take the child into the family: communication with him, transferring funds for his maintenance, interest in his fate, she says.

Larisa Vetter notes that, nevertheless, a parent who acts for any mercenary reasons can obtain custody of a child.

— There are no exact mechanisms and tools, everything rests on the inner conviction of the court, the impression that the situation makes, she emphasizes. - That is why it is important to have evidence that can refute the words.

Elena Grin notes that in this situation, an expert in the field of psychology must establish the motives of the parent, the characteristics of his personal relationship with the child, the characteristics of all family members.

contentious relationship

Photo: RIA Novosti / Vladimir Pesnya

How to get custody of a child

A potential guardian must collect a whole package of documents, including references from the place of work and from the place of residence, proof of income, a police certificate of no criminal record, a medical report on the state of health, an act of examination of living conditions.

But in order to prove to the court that the child should live with you, especially with a living parent, you need to have strong arguments.

“You need to record your participation in the life of the child and at the same time the non-participation of the biological parent in it,” says Larisa Vetter. - School, clinic, institutions of additional education - everyone should be aware of the situation. Then, if necessary, they will be able to confirm the real state of affairs. In addition, you need to turn to a negligent parent for the maintenance of the child, oblige him to participate in life, receive education, and so on.

Victoria Dergunova also notes that it is necessary to collect certificates from the special developmental classes that the child attends, present evidence of the work of a psychologist and a conclusion about his psycho-emotional state.

— In these disputes, the main thing is to convey information to the court about what really is the “best interests of the child”, in connection with which the process of collecting evidence is difficult, — she notes.

Family Law - Sharifov & Associates - Attorneys at Law

division of joint property in New York

Family law is the branch of law that deals with matters relating to the family and family relations. Our family law practice includes representing clients both at the negotiation stage and in court in cases involving domestic violence (usually followed by an order of protection), divorces, separation, residence of children after divorce, and visitation of children. , child and spousal support, property division, domestic violence, prenuptial agreements, and juvenile delinquency lawsuits. We take part in out-of-court negotiations and also conduct court hearings when necessary.

divorce by consent in New York

Frequently Asked Questions:
1. What is the difference between a contested divorce and a non-contested divorce?

When both husband and wife voluntarily agree on all aspects of divorce, including division of joint property, residence and visitation of children, child support and for former spouses, or are able to sign a separation agreement, their divorce is considered a divorce by consent. Arrest for Domestic Violence in New York On the other hand, when spouses cannot agree among themselves on all aspects of divorce and separation, and require the court to make appropriate decisions on the above aspects of divorce, they are forced to deal with a judicial divorce. On the practical side, a legal divorce requires a lot more work, usually takes longer, and tends to cost more.

order of protection in new york

2. How can I get an order of protection in case family violence?

If something threatens your physical or emotional safety or the safety of your children, you should immediately seek legal advice or seek the Court's assistance. You need to take immediate steps to keep you and your children safe. Family courts in all counties in the State of New York are able to make a quick decision on an application for an order of protection; usually, if needed, it can be done within one day. The Summons, Petition and Order of Protection must be delivered to the defendant. This can be arranged through the local police station, privately, or through a professional document delivery agent. The Family Court may order the Sheriff's Department to serve the documents. The case will be rescheduled and the defendant will be subpoenaed to respond to the domestic violence petition. Either by agreement of the parties or after a hearing, the judge may issue a permanent order of protection, limited or complete, for up to 2 years.

Sometimes the police refuse to make an arrest during an investigation into domestic violence; however, the police may advise the victim to go to Family Court and ask the Judge to issue an Order of Protection. Both the New York State Criminal and Family Courts have concurrent jurisdiction over certain domestic violence offenses. The difference between the procedure in these two courts is that in Family Court, you, as the plaintiff, are a party to the process, and you have control of the lawsuit against the defendant (the person you accuse committed acts of domestic violence against you). violence). at any time you can reach an agreement with the defendant as closed; case, or you can just pick up your petition. If the police refuse to arrest the person you complained about, you can file a petition with Family Court. The Family Court Judge has jurisdiction to issue an Order of Protection (full or limited), which will have the same effect as an Order issued by a Criminal Court Judge. For the past few months, due to the Coronavirus pandemic, Family Court has operated largely virtual, with court hearings via Skype or Microsoft Teams Meetings, and filing petitions via email or Electronic Document Delivery (" EDDS").

The Domestic Violence Petition, unless both parties agree, is decided by the Family Court Judge at the conclusion of the hearing on the merits. The New York State Family Court has jurisdiction over other types of petitions, such as Child Visit and Residence, Child Support, Neglect of a Child, Establishment of Paternity, etc.

Occasionally, after an arrest and first appearance in criminal court, a Domestic Violence Petition is also filed in Family Court, requiring the client to attend both courts for the duration of both relevant cases. If there are minor children in the family, the Criminal Court will often include such children in the Protective Order, however, making an exception for Family Court modifications of the order. In such a case, the defendant who wishes to maintain a relationship with his children must go to Family Court and register a child visitation petition, asking the Judge to schedule visits to the children. Depending on the circumstances of the original case that led to the Order of Protection, the judge may allow limited visits, supervised visits, or even supervised visits by a welfare agency.

legal guardianship

3. I can't find my spouse, can I file for divorce?

Personal delivery of original divorce papers (Summon Notice or Summons of Complaint) is required by law. However, in the event that the plaintiff (the person initiating the divorce case) cannot find his/her spouse, the plaintiff must obtain court permission for alternative delivery of documents by filing a written petition with the court.

4. When am I officially divorced?

Parties in a divorce proceeding are considered divorced from the moment the judge signs the divorce decree. In the case of a divorce by consent, if a postcard has been filed in advance, the court will notify the final divorce by mail. In the event of a judicial divorce, although the judge may verbally announce during the trial that the parties are divorced, the divorce is officially finalized after the parties' lawyers have submitted the documents to the court and the judge has signed the divorce decree.

5. What is custody (custody) and how is the issue of children's residence after a divorce resolved?

There are two types of custody – legal custody and physical custody. Legal custody essentially means the right to make decisions. During marriage, both parents have rights to raise the child. This includes the right to make decisions about all aspects of a child's upbringing, including religion and education, as long as the parent's decisions do not pose a threat to the child. After a divorce, one of the spouses who has received legal custody of the child makes all decisions independently. You can consult with the other parent, and this is even recommended, however, if you are unable to agree with the other parent or do not wish to consult, you can make your own parenting decisions. Note that the court can always review a parent's decision to raise a child to ensure that the decision is in the best interests of the child. Joint legal custody essentially means that both parents have equal rights to make significant decisions that affect their children's lives. If the parents agreed to joint legal custody, then they essentially agreed to set aside their personal differences in order to effectively raise their children. If the parents are unable to agree on legal custody, then such a decision will be made by the court.

Custody related to the residence of children after divorce means the right of a parent to have a child permanently reside with this parent in the same family and responsibility for his child while he lives with this parent. If one of the parents received the right to live with the child after the divorce, then the other parent is likely to receive the right to visit the child (visitation). If the parents cannot agree on a visitation schedule for the child, the court will provide such a schedule. Sometimes it is possible to have a joint right of residence of a child with parents in turn in equal shares (joint physical custody). In this case, the child will live half the time in the family of one parent, and half the time in the family of the other.

6. Will I have less time to visit my child if the other parent has exclusive legal custody?

Optional. Legal custody means the right to make decisions, not the right to spend time with the child. The parent with exclusive legal custody has the right to make most parenting decisions if both parents cannot agree on that decision. If the parents agreed to joint legal custody, then they essentially agreed to set aside their personal differences in order to effectively raise their children. Each parent in this case has equal rights to make decisions regarding the child. Regardless of whether your spouse has exclusive legal custody or both of you, you still have the opportunity to see your child as much as his schedule allows. Visitation of a child is usually independent of legal custody.

7. How is child support calculated?

New York State offers a formula for calculating the amount of child support payable by a parent as specified in Family Code section 240(1-b). This is a rather complicated article of law that must be read and interpreted carefully in order to accurately calculate the amount of child support. Usually, after the allowed deductions from the parent's total earnings, a certain percentage is applied to the balance of earnings to calculate basic child support. The percentage depends on the number of dependent children under 21:

17% per child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children;

It is necessary to carefully and carefully interpret the article of the law in order to accurately calculate child support, as there are many factors and conditions prescribed in the law that affect these calculations.

8. Who pays child support?

Generally, the parent with whom the child does not live most of the time will pay child support to the other parent.

child support in New York

9. Will I be able to pay child support less than what is required by law?

The best chance to achieve this is to negotiate a reduction in child support as part of a common agreement between the parties. Do not forget, however, that the other party is not obliged to agree to this. Only in rare cases does the court find reasons not to apply the formula provided by law.

10. What if the children spend a significant part of their time with me, or even 50% of the time?

Once again, if you are unable to negotiate a reduction in child support with the other party, it will be extremely difficult for you to convince the court not to apply the statutory formula. To illustrate this, note that even if the parents spend the same amount of time with the children, there is case law stating that the parent with the higher income counts as the parent not living with the child for purposes of calculating child support, and such parent would have to pay formula support! ! This shows how much more beneficial it is for clients to take good faith negotiations seriously as the best way to resolve a dispute.

11. Until what age should a parent support a child?

In New York State, a child is entitled to parental support until the age of 21, unless he/she begins independent living earlier. If a child chooses not to attend college and instead joins the military or starts working full-time, then parental support ends when the child reaches 18 years of age.

12. Will a child be eligible for support if she stays in college after her 21st birthday to complete her studies and earn a bachelor's or graduate degree?

No. If child support continues after his 21st birthday, it will only be as a result of the agreement of both parents. The law does not require parents to continue supporting children after they turn 21, regardless of whether higher education is completed.

13. If my spouse has sole legal custody, or if we share joint legal custody, or if the children simply live primarily with one parent, can the children's residence be changed unilaterally? OK with this parent?

The Court takes the issue of changing the residence of children very seriously. The main criterion for the court is the issue of the welfare of the children. In attempting to make such a decision, the court will ask the question: "If such a change in the place of residence of the child is allowed, will it significantly change the nature of the relationship between the child and the parent who does not move to a new place with him?" The court will try to find out as much as possible about the nature of the relationship with the parent. (For example, how often do you see your children? Do you go to their school events? Do you meet with your children during the school week? Do you make use of all the visits that you have assigned to your children? How good are your visits to children?) will evaluate all reasons for the expected relocation of children to determine whether the parent with whom the child lives has explored all possibilities to avoid such a relocation. The distance over which the proposed move is made is also an important factor. Is this the distance that will prevent you from regularly visiting your children? The latest trend in jurisprudence is to generally allow moves up to 2 hours by car from the children's previous residence (assuming the parent with whom the children live generally has a good reason for the move). These decisions were determined by the circumstances, so don't try to reassure yourself ahead of time based on what the court has decided in other cases.

14. Will my spouse be required to pay me alimony or maintenance after the divorce, and if so, for how long?

In accordance with a recent change in the law that came into force in 2016, the law provides a formula for how to calculate temporary alimony, as well as a recommended formula for calculating permanent alimony after a divorce and for their duration. There are also additional factors that the court must consider when determining the amount and duration of child support.

Here are a few factors that are considered the most significant:

  • the length of the marriage; the age and state of health of each spouse;
  • present and future earning potential for each of the spouses;
  • your opportunity to become financially independent;
  • reduced or lost earnings opportunity due to denial or delay in education, training, employment, or career development during marriage;
  • having children in your home;

This is a complex decision and will be influenced by many factors.

15. Can my spouse evict me from our home?

Unless you have physically, verbally, or mentally abused your spouse, or have already found another place to live, it will be extremely difficult for your spouse to evict you from their home. Unless you agree to move out voluntarily, your spouse will have to file a petition with the court for you to be evicted, and the court will give you an opportunity to respond.

16. Can I and my children continue to live in our house after the divorce?

Assuming that the children will be living with you, and if you have a child under 18, the court will generally try to keep the child in the home, neighborhood, and school to which the child is already accustomed, assuming that the child is fine in that setting, and also implying that financial circumstances allow it.

17. Am I entitled to a share in the value of the house, even if the title is not in my name?

If the house was purchased during the marriage with money earned during the marriage (regardless of which spouse earned the money), then it is likely that you will be entitled to a share in the price of the house, even if the house is not registered on you. There are many factors to calculate the size, value and percentage of this share.

18. I bought our house before our marriage with funds I bought before our marriage. Will I have to share the cost of my home with my ex/ex-spouse?

Usually not. However, if the house increased in value during the marriage as a result of your spouse's efforts, or as a result of a joint investment in the house, then your spouse may claim a share of the excess price during the marriage. Please note that if you put your spouse's name on the home title deeds, this may cause your spouse to be able to claim a share of the total value of the home.

19. Will the court force me to sell my house?

If there are no children, and assuming the house is jointly owned, the court will allow each spouse to buy out the other spouse's share. If neither spouse has the ability to buy out the other's share, or is not interested in doing so, the court may order the sale of the house and divide the proceeds from the sale at the discretion of the court.

20. Credit cards: Should they be cancelled?

If you think your spouse will use credit cards beyond justified living expenses, consider closing the account. Most accounts can be closed by either paying off the debt or transferring to another credit card. If your name is first on the account, you can achieve the same goal simply by removing your spouse's name from the account. The final liability for debts will be determined by the court or by agreement. In most cases, it is recommended that you inform your spouse of your actions (after the accounts have already been changed) so that he/she is not unpleasantly surprised or embarrassed when the payment is unexpectedly declined.

21. Do I have to withdraw money from all joint accounts to protect myself from my spouse taking or hiding the money?

The courts do not approve of either spouse withdrawing all the money from a joint account or withdrawing money without good reason. The husband should think seriously before withdrawing money. Do not forget that the court has the right to demand liability from the spouse if it is proved that he squandered or hid the joint funds.

22. If I own a business or share in a business, will my spouse get a share of the business?

If your business was created during your marriage, or you acquired an interest in a business during your marriage, your spouse will likely be able to claim a portion of that business or a portion of your interest in the business. If you acquired the business before marriage, or you acquired an interest in the business using funds from an inheritance or a gift, then your spouse may claim an excess (if any) of the value of the business that occurred during the marriage if you or your spouse is actively contributed to the value of the business. Usually an accountant is hired for this calculation, and there are many factors that affect this calculation. After the overall valuation of the business is made, it is calculated what percentage of this value should be used to calculate the spouse's share. There are many factors the court will take into account to determine this percentage, including but not limited to the length of the marriage, your spouse's contribution to the business, family earnings or assets invested in the business, etc.

23. Can my spouse claim the estimated value of my professional license or higher education diploma?

For divorces initiated before 2016, by law, if all or part of a professional license or higher education occurred during marriage and was paid for by joint family funds, then it is likely that the spouse will be able to claim a portion of the assessed value of such a license or diploma. Following recent changes to the New York State Family Code that went into effect in 2016, the court must no longer consider increased earning potential due to a professional license, college degree, celebrity status, or career advancement as part of a family partnership. assets. However, when deciding on an equitable division of joint marital property, the court must take into account each spouse's direct and indirect contribution to enhancing the earning potential of the other spouse. NY Dom. Rel. L. § 236B(5)(d)(7).

24. Which courts can hear divorce, custody and alimony cases?

The Supreme Court has exclusive jurisdiction over divorce cases; however, Family Court has concurrent jurisdiction over custody, visitation, and child support matters. If a person wants to get a divorce, he needs to fill out the original documents in the Supreme Court. If the child's parents are not seeking a divorce, or are not married at all, and want to sue for domestic violence, custody, visitation, or child support, they should file an application in Family Court.

25. What is a juvenile delinquency trial?

This is a New York State Family Court lawsuit involving a juvenile delinquency case between the ages of 7 and 16. When such a minor is arrested in New York State, he/she may obtain a subpoena from the police in Family Court in the county where the alleged offense was committed. On the other hand, when the allegations are serious enough and/or the minor child has had previous police referrals, the child may be detained overnight in a special detention center for children and brought to Family Court the next day when the court is open.

When a child comes to court with a parent or guardian, he/she and the parent will be interviewed by a probation officer and, depending on the charges, previous criminal convictions, the wishes of the victim and their parents, if the victim is a minor, the case may be referred to probation department. In this case, the petition against the juvenile delinquent is not filed and the child agrees to follow the rules of the probation department for an initial period of up to 60 days. The child must attend school, report to the probation department when required, write an essay and/or do community service under the direction of a probation officer, and also have no new drives. If the child complies with all this, the case will be dismissed.

If a juvenile is charged with a felony, or if the victim wants the case to continue, the New York City Law Department, acting as prosecutor in such cases, will file a petition against the juvenile offender and the child will be required to appear before judge. A case on juvenile delinquency is similar to a criminal case of an adult in a criminal court, however, there are significant differences: there is no bail for the release of the defendant to freedom for a minor - either he is left in custody or released without bail on bail to the parent / guardian; no right to a jury trial, instead a court hearing before a judge; no criminal conviction - instead, recognition as a juvenile delinquent; punishment options also vary, including case closure, conditional closure, suspended sentences of up to 2 years, or detention with varying degrees of security for an initial period of up to 18 months. For the most serious crimes allegedly committed by minors 13 years of age or older, the prosecutor has the option to refer the case to an adult criminal court.

26. What is marriage annulment and how is it different from divorce?

A man and a woman must be legally capable of entering into a legal marriage. If the parties are not authorized to enter into a marriage, such a marriage can be annulled, that is, declared invalid. Grounds for marriage annulment are untraceable disability, minority, lack of consent, or consent obtained through fraud or intimidation, and incurable mental illness for five years.