West New York, NJ asked in Family Law and Child Custody for New York

Q: Non custodial parent hasnt been around for 2 years and hasnt really payed child support now he wants custody

What should i do cause we have a history of dv and i dont want him around my kids my youngest son doesnt even know him

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1 Lawyer Answer
Andrew S. Tabashneck
Andrew S. Tabashneck
  • Divorce Lawyer
  • Williamsville, NY
  • Licensed in New York

A: tough to speculate without more facts, but with a history of dv and with any recent incidents, you could attempt to obtain a type 1 order of protection. But this probably would not prevent the father from being granted at least some visitation. The age of each child will be relevant to the final determination, and if the children are old enough, the judge will consider their perspective through the Attorney for the Child. Although more facts are needed to make a determination, it is very possible the father could get visitation. That being said, it's difficult to imagine how he could get full custody of the children given his lack of involvement.

One final caveat to this analysis is that there is some case law, depending on the jurisdiction of your case, that permits a parent to deny the other parent visitation where he or she fails to pay child support. However, this is not a clear cut rule.

The final point I would make about the Child Support issue is that you could file a contempt of court to try and compel the father to pay child support. If he cannot pay and a court finds his failure to be willful, then he could be sentenced to jail time.

I wish you the best of luck

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