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A relocation case study where siblings would be split up in event of a move.
Mary and Sal reached a difficult point in their negotiation when they started to talk about the idea of moving. Mary had met and was dating a man who lived three hundred miles away and had his own business at that location. Mary was a professional and knew that if she established a permanent relationship with her new boyfriend, she would be able to start a practice where he lived. Sal realized that he could not move and understood that if Mary left with their two children aged ten and fifteen, he would be cut off from them for long periods of time.
The couple discussed this at length and decided to talk to the children about how they would feel if Mary chose to get married and move. Their fifteen year old made it very clear that he would want to be with his father while their ten year old daughter stated that she would want to be with her mother.
Sal and Mary decided that in the event that Mary moved more than fifty miles away, the custody of the children would be split with their son staying with Sal and their daughter going with her mother. Suitable visitation and access schedules were also set up and, in this way, the parents resolved the issue.
Splitting siblings is something that is done infrequently and sometimes can have negative results for one or more of the children. However, when a situation develops where one parent is forced by necessity to move a great distance then unusual and not totally desirable solutions may have to be sought.
A relocation case study where Dad might have to move to another state for work.
Steve and Claudia had completed their agreement except for the issue of what would happen if one of them had to move. Steve’s job was with a large corporation and he knew that he might be called upon to move to another state. Claudia was employed in an office and did not anticipate a move under new circumstances.
They started with an understanding that all aspects of their agreement would stay in force unless one of them moved more than twenty five miles from their present location. They felt that everything they agreed to could continue to take place within that distance. They also agreed that if Steve was called upon to move to another state then Claudia, who had primary physical custody of the children, would also move to that state if possible. Steve was willing to pay all of Claudia’s moving expenses and would also support her during the time it took her to find new employment up to a period of six months. Claudia accepted this situation as it would allow them both to continue their parenting. However, she also insisted that she not be “obligated”. It was understood that if Steve moved and Claudia didn’t, it would necessitate some major changes in the visitation schedule but they were not prepared at this time to work those out. Therefore, they decided that if Steve had to move out of state and Claudia didn’t go along that the parenting would be open to renegotiation.
At Steve’s insistence the agreement was made gender neutral. Therefore if by some chance Claudia had to move, the same conditions would apply.
A visitation case study where visitation with Grandparents was an issue.
Sally and Sheldon had completed all aspects of their visitation agreement when they suddenly became aware that Sheldon was uncomfortable with allowing visitation to Sally’s mother and father. Sheldon claimed that Sally’s mother and father were probably the biggest reason they were getting divorced in the first place. He felt that they were forever influencing the children against him. Sally claimed that her parents were merely supporting their daughter and that Sheldon probably “deserved” anything he got in the way of criticism. After some discussion Sally and Sheldon realized that the issue of visitation to Sally’s parents could result in a major impasse and create difficulty with the overall divorce agreement.
Following the ground rules that they had established, Sally and Sheldon called a “timeout” and put off any further negotiation on the issue until the following week. One week later, they were still both upset about the matter, but Sheldon had a chance to talk to his children. He mentioned to them that their mother would be taking them to their grandmother’s house the following weekend. Sheldon observed that the children were pleased and were looking forward to the visit. This made him realize that it would be unfair to the children to deprive them of visitation to their grandparents.
Sally and Sheldon agreed that Sally could take the children to visit their grandparents any time she had the children but Sheldon did request that the children not be left overnight in the sole care of their grandparents unless Sheldon had given his approval. Sally was able to agree to this and the couple were able to move on to the next issue.
A visitation case study where the parents share special occasions and emergencies.
Joe and Mary worked out schedules for the major holidays quite well. They also had concerns about a number of special occasions which were going to take place. Jose was concerned because his sister was getting married in a few months and he wanted to make sure that the children were available. This was especially important because they were going to be part of the wedding party. It was agreed that both parents would be entitled to have the children for special family occasions such as weddings, bar mitzvahs, confirmations, funerals, and family birthday celebrations, providing reasonable notice was give.
Joe and Mary also decided that on special occasions for their own children such as confirmation or birthdays they, Joe and Mary, were on good enough terms so that they could share the occasions with their children. It was, therefore, agreed that on the children’ birthdays both parent would have access to the children and this would also be true for other special occasions for the children. Joe and Mary took into account the possibility that their relationship might deteriorate. They agreed that if either one felt uncomfortable sharing an occasion, that person would have the right to opt out of the celebration or party but would still have some access to the children on that day. There were also concerns about Mother’s Day, Father’s Day, and parental birthdays so it was agreed that Mary would have the right to have the children on Mother’s Day and her birthday and Joe would have the children on his birthday and Father’s Day.
It was also agreed that if the children should become ill for more than twenty-four hours, then the noncustodial parent would have the right to visit with the children in the custodial parent’s home given three hours prior notification.
In addition to the other aspects of visitation Joe and Mary agreed that each of them would have the right to take the children during the children’s summer vacation for a period of two weeks. Both Joe and Mary understood that they might not use this entitlement every year but they wanted it in case they decided to use it. Each would inform the other, as well as the children, at lease six weeks in advance so that adequate planning could take place. They agreed that the address and phone number where the children would be staying would be supplied and that the children would call home at lease once during the vacation at a prearranged time.
A visitation case study with a special arrangement for Christmas.
Joe and Mary have to children aged seven and eleven. They are concerned not only about who should spend the various holidays with the kids, but also about taking care of the children during the holidays. After much discussion they agreed that all the holidays which fell on Monday would be taken by whichever parent had the children for that weekend. In cases where they both had to work on the Monday, it was agreed that a baby sitter would be hired to watch the children and that the responsibility of getting the baby sitter would be with the parent who had the children on that particular weekend.
Joe and Mary also ascertained that the holidays which were important to them during the year were Thanksgiving, Christmas, Easter, and Memorial Day. They agreed that Thanksgiving, Easter and Memorial Day would be alternated on a year by year basis. With Christmas they wanted to make a special arrangement.
Joe’s family always celebrated Christmas eve with a big dinner. Mary’s family celebrated on Christmas day. It was, therefore, agreed that Joe would have the children every Christmas on Christmas Eve and that the children would spend the night with him. He would bring the kids to Mary’s house at nine thirty Christmas morning. The children then spent the balance of Christmas day with their mother and her family. It was also understood that if anytime in the future the situation changed then this part of the agreement would be renegotiable.
While both Joe and Mary would have liked to have taken extended vacations every winter with the children they realized that for financial reasons it might be impossible. Therefore, it was agreed that the two lengthy vacations would be alternated. The parent taking the children for the holiday would be responsible for providing day care during that school vacation.
A physical custody case study where the marital home had to be sold.
Tammy and Seth had a son aged sixteen and a daughter of twelve. Tammy worked in a daytime job from which was off at approximately four thirty, while Seth had a job which occupied him for many hours but he could be flexible with his schedule. The couple realized that they could not manage to keep up their marital home after the divorce and it was placed on the market. Neither parent wanted to limit their contact with the children and the children were old enough and verbal enough about their wishes to make it clear that they wanted to be able to have contact with both parents. They also wanted to remain in contact with their friends.
Tammy and Seth decided that after the marital home was sold Tammy would rent an apartment near the marital home and Seth would reside about forty-five minutes away. They agreed that the children would establish a home base with Tammy but that anytime they wished they could spend weekends with their father. During long school holidays including the summer, the children would spend the majority of the time with their father. Seth agreed to curtail his work schedule during those periods.
A physical custody case study where the parents chose shared custody.
Matt and Sarah had been separated for several months before starting work on their divorce agreement. Matt was living at his mother’s house while Sarah was at home with the kids. The children, two boys aged eleven and fourteen, said very often they really missed being with their father. At the same time, it was very clear that the children needed a great deal of contact with their mother. Matt worked a full-time job while Sarah was not employed outside of the home.
The solution for this family was that the children remain in the marital home with Sarah during the week. Remember Matt lived with his parents. On weekends Matt moved back into the house to stay with the children and Sarah left. Both parents realized that this solution would be short term. It was agreed that if it became unworkable because of difficulties with the living accommodations or one of them became involved with a new significant other, then the physical sharing would have to be renegotiated.
A physical custody case study where the parents’ situation requires flexibility.
Laura and Ted both work full-time as professionals. Each one can be required by his or her work to go out of town on weekends and both are subject to evening hours with clients or customers. Neither parent wanted to give up care of their two children aged eight and eleven and the children had made it quite clear that they wanted as much contact as possible with both their mom and dad. After much soul searching Laura and Ted decided that the only solution for them would to be to share the physical custody of their children approximately equally. In order to accomplish this it was decided that while Laura would remain in the marital home, Ted would rent a home only a half mile from the marital home. It was decided that the children would spend alternate weeks with each parent and still be able to attend the same school and keep contact with their friends.
Flexibility would be necessary so that on weekends or evening when one parent was required to be away, the other would be available to care for the children.
Laura and Ted entered into this agreement with some trepidation and for that reason made it clear that it was a trial which would last only as long as the children seemed happy. Approximately one year later they both felt that the kids had adjusted well and the situation was working for them. Laura and Ted also included in the agreement stating that if either parent felt the children were suffering by this arrangement, then a child psychologist or family counselor would be sought out who could help them decide how best to deal with the situation.
THE CHILD SUPPORT STANDARDS ACT
Thirty years ago, the New York State Legislature enacted the Child Support Standards Act, also referred to herein as “the guidelines.” The statutory child support percentages, as applied to parents’ combined income for purposes of calculating child support purposes, are:
· 17% of combined income for one child,
· 25% of combined income for two children,
· 29% of combined income for three children,
· 31% of combined income for four children, and
· no less than 35% of combined income for five or more children.
The guidelines dictated that a certain percentage of combined parental income was what should be attributable to the expenses of the parties child(ren). The non-residential parent would then have an obligation to pay his/her pro-rata share of that percentage to the residential parent.
The 1980 law, however, instructed that, in cases where the combined parental income exceeded $80,000, an explanation as to why there was a deviation and as well, setting for the factors considered were required. If the case proceeded to trial, the Judge assigned to the case had the task of determining what percentage of the combined income would be applied to child support, using the percentages as set forth above as well as the factors enumerated in the statute. This means that, potentially, even if the non- residential parent earned six figures or more, the parent with residential custody might receive less than the statutory percentage. However, for most families, combined income did not exceed this amount, and the statutory percentages were applied to the full amount of combined parental income.
NEW CHANGES TO THE ACT
For years, parents and attorneys alike have been petitioning the Legislature to raise the $80,000.00 threshold as the incomes of families have increased along with their costs of living. As of January 31, 2010, the threshold was increased from $80,000 to $130,000. Additionally, support will continue to be subject to a cost of living adjustment [COLA] every two years taking into consideration the changes in the Consumer Price Index.
GROUNDS FOR MODIFICATION
What Do the Amended Guidelines Mean for Parents?
Parents with children should be aware that the courts maintain the right to modify child support obligations until the child reaches 21 years of age, or is otherwise emancipated. Such modifications may coincide with relevant changes in the parents’ financial circumstances, one child’s emancipation where there are other unemancipated children of the parties, or, at times, a change in the child’s residence. Downward modifications are most often sought by the non-custodial parent in cases of unemployment.
Contact Wand, Powers & Goody, LLP, for more information.
A physical custody case study where the parents choose shared custody of their children.
Fran and Bob were living separately for almost a year before they started their divorce proceeding. During that year the children lived with Fran, attended school, and saw Bob mostly on weekends. Fran worked in a part-time job which did not occupy her other than during school hours, while Bob often had to travel and work late, seeing clients. By the time they started working on their divorce agreement Fran and Bob had already reached a “defacto” understanding that the children would be best off continuing with Fran but Bob was uncomfortable with the idea of giving Fran sole physical custody.
After discussing it for some time it was agreed that they would draw up a “shared custody” agreement in which Bob would have the children from Friday evening to Sunday evening every week and Fran would have the children from Monday through Friday. It was also stated in the agreement that on weekends when Bob had to be out of town Fran would be given three days notification and that she would then take the children on those weekends. The agreement stated that Bob could visit with the children on any evening during the week when he had available time but he was required so as to protect her privacy.
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