If you and your spouse cannot agree on child custody and child support, you’ll need to go to court. Litigation is often a complicated process with strict rules. In custody and support cases, there are procedural steps you must be careful to take, or you could jeopardize your chance at getting custody or support.
Procedure for Filing for Custody/Support
In New York, you can file for custody/support in Family Court. However, if you are seeking a divorce at the same time, you should file for custody/support as part of the divorce action in New York Supreme Court.
The action begins by filing a petition with a summons in Family Court or summons with notice or a summons with a verified complaint with the county clerk’s office.
The petition, notice or complaint will provide the basis for seeking custody and/or support.
Summons with Petition
The Family Court summons with petition must be served within the time proscribed within the summons. The documents will provide a return date by which the parties will have to appear before the court.
Summons with Notice or Summons with Complaint
If you’re using a summons with notice or a summons with complaint, it must be personally served on your spouse within 120 days unless you file for an extension.
Your spouse must file a notice of appearance and demand for complaint if a summons with notice was served.
If a summons with complaint was served upon your spouse, he or she must respond to the complaint within 20 days of being served (30 days if served outside of New York). Typically, your spouse would file an “answer” to the complaint but he or she may also file for custody/support in his or her answer.
Generally, if one parent requests custody/support, the other parent should also request it. The reason is that if a parent doesn’t seek custody/support, it implies that he or she doesn’t want custody/support. This can be problematic because the court arguably cannot award custody/support to a parent who doesn’t ask for it.
Requesting Full vs Joint Custody
There are two components of child custody which are decided separately. Physical custody refers to where your children live, with whom and during what periods. You can have joint physical custody if it’s possible for you and your spouse to spend equal amounts of time with your children. Otherwise, one of you may be awarded physical custody while the other gets parenting time. Note that if parents share physical custody and one parent ends up spending more than half the time with the children, that parent may be entitled to child support. To that end, regarding shared custody where each parent spends equal time with the children, the lesser-earning spouse is the parent who is generally entitled to child support.
Legal custody indicates who has decision-making authority over your children’s education, healthcare and religious upbringing. Ideally, parents should have joint legal custody but if they cannot agree on decisions, they may need to go to court, and the judge will then determine how to resolve the conflict.
Full custody means that a parent has sole physical and legal custody, while the other parent has little to no visitation rights.
Importantly, there is a preference for joint custody in New York. Therefore, full custody is not awarded unless there is clear evidence, for example, that a parent is a danger to the health and safety of their children. While you may think your spouse is a bad parent, you won’t get full custody absent a showing that your spouse abused or neglected your children.
If you are a parent considering divorce or need assistance with child custody and support issues, it is critical to hire a highly experienced attorney. Contact us today to discuss how we can help you achieve a positive result in your case.
