The Rights of Children
The following "Bill of Rights for Children Whose Parents Are Divorced or Separated" was drafted by Justice James Brands of Dutchess County Family Court, New York, and Justice Ira Harkavy of Supreme Court, Kings County, New York.
Custody and Visitation
By Sherri Donovan, Esq.
The term custody encompasses the rights that parents have in their minor children, including the right to have their minor children live with them and to make all decisions regarding their education, health, and general well-being.
A custody agreement or court order might consist of any of the following configurations:
In New York, the court will not order joint custody, but the parties may agree to it. Some instances in which joint custody and/or joint decision-making authority may not be the best option is if one parent poses a real danger of child abuse or child endangerment or when the two parents disagree on many important child-rearing issues and are likely to be in conflict on these issues postdivorce.
When one parent is awarded sole decision-making authority, the other parent is legally obligated to abide by the parenting rules and decisions of the custodial parent.
An award of custody to one parent does not terminate the rights of the other parent to the child. Noncustodial parents also retain visitation rights with the child unless there has been a judicial determination that such visitation would be harmful to the child. A noncustodial parent may also seek a change of custody in his or her favor at any time during a child's minority if a change in circumstances warrants a custody modification.
A custody agreement (negotiated by the parents and approved by a judge) or custody judgment (decided by a judge) spells out the rights of each parent to any minor children from the marriage. This written agreement—which may be settled before, during, or after the divorce is granted—will specify:
With whom the children will live all of the time, most of the time, or for a specified period (such as half) of the time
Whether both parents will have equal responsibility or which of the parents will have sole responsibility for making all major decisions regarding the children's welfare, including education, child care, discipline, health care, religion, place of residence, curfew, associations with other people, sports, activities, etc.
A parenting plan or visitation agreement that spells out when the children will be with each parent and each parent's responsibilities during the time the children are with the other parent (The agreement may also specify any restrictions or conditions regarding the parent's behavior while the children are in his or her care.)
Where one of the parties seeking custody is a non-parent, the court must take into consideration that a parent's right to the custody of her/his child is a fundamental constitutional right. In such cases, the parent will not be deprived of the custody of their child unless there is a showing that the parent is unfit or has neglected or abandoned the child or there are other extraordinary circumstances. The offending behavior or circumstances must be proven in a court of law. Where the parents arrange for the child to live with a third party, a court must make a judicial determination as to custody.
Courts apply a number of factors in custody disputes in order to determine the best interests of the child, including the ability of each parent to function as a parent and to meet the individual needs of their children. There is no single factor that determines custody and courts generally decide upon a totality of the circumstances presented. However each parent's ability to meet a child's emotional and physical needs-especially the needs of children who are already vulnerable-will be given particular scrutiny by the court.
Some factors that would have a negative impact on a parent's custody claim are: diagnosed mental illness, abuse of alcohol or drugs (unless there has been successful participation in a treatment program); neglect of children; undesirable lifestyle; and abandonment.
Factors that would not (or should not) affect a custody determination include: the lower economic status of one of the parents since courts can equalize the parent's economic status through maintenance and child support awards; indiscreet sexual activity and preference for persons of the same sex are not the basis for denial of custody unless it is shown that there is a detrimental effect on the children.
Where the parents work, the Court must be satisfied that there are adequate child care arrangements and as between working parents preference for custody will be given to the parent who works regular hours and has time left to spend with the children. A parent who does not work full-time outside the home but is unwilling to devote substantial time to the children will have their claim to custody weakened.
Other factors of importance to the custody determination include parent/child relationships as to whether it is especially poor or especially good. However, the Court will want to determine that the child has not been deliberately brainwashed against one parent. While not determinative, a child's preference should be considered by the Court. The weight such a preference will be given depends upon the child's age, maturity, and freedom from parental coercion. Stability of environment is another factor that Courts deem important and they are reluctant to remove a child from a familiar environment.
There is a strong preference to keep siblings together, and Courts will deny arrangements that separate siblings in the absence of compelling circumstances. Where religion is a factor in a custody dispute, Courts initially take the posture on non-interference due to the constitutional protection of religious freedom. However, Courts may inquire into a child's actual ties to a particular religion or as to whether certain religious practices threaten the health or welfare of a child. The Courts will also take into consideration if one parent has engaged in domestic violence against the other.
The foregoing list is not exhaustive but constitutes the factors most commonly at issue in custody determinations-ultimately each case is determined on the totality of the circumstances.
In a joint custody arrangement, the two parents share physical custody and typically also share decision-making authority of their children. The custody agreement usually specifies how the child's time will be divided between the parents' individual residences, but sometimes the agreement simply states that the parents will share physical custody, leaving the parents to work out a more flexible physical custody schedule between them.
Joint custody is based on the understanding that both parents:
A joint custody agreement should include a parenting plan that identifies which decisions affecting the child's life will be made jointly by the parents; this typically includes educational, medical and religious issues. The parenting plan should also specify how the two parents will divide their child's time during holidays, vacations, and special events (such as birthdays) as well as how they will divvy up their responsibilities (both payment of and participation in) for the child's education, sports and extracurricular activities, such as music lessons.
Future Offspring: A New Frontier in Family Law
Advances in reproductive technology are presenting controversial legal challenges for couples who freeze their embryos for future implantation, then later divorce. Should the frozen embryos be considered property and their ownership be decided no differently than a house, car, or pet might be in a divorce settlement? Should they be treated as children with their best-interest "custody" determined by an agreement or court order? Should either spouse be allowed to use these embryos to have a child without the other one's permission? Should the noncustodial parent of such future high-tech offspring be required to provide support and be allowed visitation? Should the fertility clinic maintain owership, having the right to sell or donate the embryos or destroy them?
Divorced spouses often do not agree on what should be done with frozen embryos. Few states have legislation in place to deal with these issues, and the prevailing politics in that jurisdiction usually dictate the court's rulings on these cases. As the field of reproductive technology grows, these and other issues as well as the litigation and laws that arise from them will become more common. Until then, if you are considering assisted reproductive technology, take the time to research and carefully consider both the medical and legal aspects of such an arangement. A consultation with an attorney is also recommended.
For a noncustodial parent, visitation is one of the residual custodial rights that they retain in their children. New York Courts have characterized the ongoing relationship between the noncustodial parent and the child as a joint right which, in the absence of a showing that such visitation would be harmful to the child, must be provided as part of the initial custody determination. There is a presumption on the part of the Courts that such visitation is in the best interests of the child. The best interests standard is also applied to determine the nature of the visitation, its frequency, duration, where visitation takes place, and whether it is supervised or subject to any other conditions.
Courts generally encourage frequent and regular visitation when the parents live in the same locality and where it does not interfere with a child's school schedule, so that the parent and child may maintain a meaningful relationship. Where the parents live at some distance from each other, liberal visitation is usually provided for school holidays and summer vacations.
The question of the need for supervised visitation generally comes up in situations where the noncustodial parent has threatened to kidnap the children, has a drug or alcohol problem, or where there has been violence or threats of violence towards the custodial parent or the children.
The visitation rights of the noncustodial parent will only be denied when there is substantial evidence that such visitation will be harmful to the child or where the noncustodial parent has in some way forfeited his or her right to visitation.
A child's wishes regarding visitation will also be considered and weighed based upon the child's age and maturity, but will not be ultimately determinative.
A custodial parent's willful deprivation of a noncustodial parent's visitation rights has been viewed by Court as inconsistent with a child's best interests and may be the basis for awarding custody to the noncustodial parent. Another possible consequence of this interference may be the suspension of the noncustodial parent's obligation to pay maintenance and child support including any arrears during the period that visitation was denied.
A custodial parent may relocate to another state by court order. The courts determine the ability to relocate on a case by case basis. The issues which the court will consider when deciding whether to grant a request for reocation are:
Modification of Custody Awards
The standard for custody modification is also the best interests of the child. Courts are generally reticent to change custody awards and require the presence of "countervailing circumstances" as to why custody should be changed or modified. This would require a showing of a change in circumstances regarding the custodial parent's ability to meet the physical and emotional needs of a child.
Modification of visitation awards by the noncustodial parent would require a similar showing of change of circumstances affecting the best interest of the child.
Under the Child Support Standards Act (1989), both parents must contribute to the financial needs of a child. Under federal law, the custodial parent with whom the child lives full-time or most of the time, has a right to child support from the noncustodial parent. In most joint-custody cases, a custodial parent who does not have financial resources to adequately provide for the child is entitled to child support from the other parent, even if the child lives part-time with each parent.
If you are seeking child support along with a divorce, you should go to the Supreme Court in your county. If you are seeking only child support (for example, from your child's father/mother to whom you've never been married), then you should go to the family court in your county.
The formula used to calculate a parent's basic child support obligation is as follows:
Each parent's net income is determined (gross income less Social Security and local tax only; federal and state taxes are not deducted)
Any taxes, alimony payments to a previous spouse, and child support payments to children from another marriage/relationship are deducted from the respective parent's income
The net incomes of the two parents are combined. If their combined income exceeds $130,000, any amount over $130,000 may or may not be considered, at the discretion of the court
The combined income (or the amount over $130,000 determined by the courts) is multiplied by 17 percent for one child, 25 percent for two children, 29 percent for three children, 31 percent for four children and 35 percent for five children or more
The percentage of the noncustodial parent's portion of the parent's combined income is calculated. This percentage is the amount of the noncustodial parent's income that must be paid as child support to the custodial parent
You can opt out of the basic child support formula only if you and your spouse sign a legal agreement which includes a provision stating that both parties have been fully advised of the Child Support Standards Act.
Unless the parents opt out in an agreement, they may apply for a modification of their child support order upon the passage of 3 years, or upon a 15% change in the gross income of either party subsequent to the date of the most recent child support order. Parties may alternatively seek a modification if there is a substantial change in circumstances.
Special Needs Children
Parents with a special needs child are often faced with an overwhelming amount of additional, and often unanticipated, expenses. A child may need tutoring, therapy, testing and assessments, private schools, expensive camps, medication and vocational training. Legally, a parent's child support obligation terminates when the child reaches the age of 21, but a special needs child may need financial support throughout his or her lifetime. At the time of separation, it may be difficult for parents to know what the child will need as he or she develops. The child support, and possibly the spousal support, sections of the parties' agreement may need to be adjusted over time to reflect the child's needs. It is important to keep accurate records of all expenses and to try to anticipate the child's needs along with the help of the professionals who work with your child.
Parenting coordination is a child-focused alternative dispute resolution process in which a neutral mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by managing conflict, facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval and/or the court, making decisions within the scope of the court order or appointment contract.
Parents may include a provision in their separation or divorce agreement wherein they specify that a parenting coordinator will be called upon to assist the parties with the implementation of their parenting plan. A court may order parties to consult with a parenting coordinator, or parties may, by private agreement, retain a parenting coordinator.
The overall objective of parenting coordination is to assist high conflict parents to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. It can be helpful for parents to review their parenting plan with a parenting coordinator even before conflicts arise in order to proactively identify, discuss and clarify issues and procedures that may in practice pose conflict or differing interpretations.