Woodstock, NY asked in Family Law, Child Custody and Child Support for New York

Q: If I have 50/50 custody of my son is the mother entitled to %17 percent of my income in New York?

The mother wants 17 percent of my income to supplement her income most likely because she can't go out drinking 3 times a week. If she can not afford to raise my son half of the week I would much rather he be with me full time to make sure his life is as good as possible. We were never married and as it stands now there is no court agreement. We just came up with a 50/50 schedule.

And if she can not afford to care for him half the time then it only seems logical to petition the court for full custody, but is that cause enough?

Also as it stands, if our son is sick or she needs to work extra hours I take my son. SO really I have him more than half the time.

2 Lawyer Answers

Nina Mironenko

  • Divorce Lawyer
  • Huntington, NY
  • Licensed in New York

A: Generally, no, but it depends on whether there is a big disparity in your incomes. Residential custody is determined by the "best interest" test for the child, which involves many factors. The courts look at who is best able to provide the best home environment, including a parent's willingness to encourage a good relationship with the other parent. You should keep a calendar of every day/hour you have your child and what you do for the care of your child. Take her/him to the physician, attend parent-teacher conferences, sign up your child for extra activities, read with your child, etc. BTW, courts like to keep siblings, half-siblings together.

Aubrey Claudius Galloway

  • Divorce Lawyer
  • Scarsdale, NY
  • Licensed in New York

A: OK, you have two choices and you have to (at least I strongly recommend) do one or the other or your wife may be able to ultimately argue you have abandoned your son.

You may either (1). Petition the family court for full custody or for whatever you want OR (2). You and your baby mama meet with an attorney together (our office does these things for $500 flat) and hash out a temporary (or final) Order of custody. In this the issues of physical and legal custody will be addressed and a certain percentage of monies will be determined necessary or unnecessary as agreed by both of you. I would suggest you just do this consent agreement and state That you want 50-50 legal custody and assuming one of you is going to take physical custody, you can still go 50-50 on that but just mention it in the order where the child’s primary place of residence will be. Whoever has him as a permanent resident may only collect child support in the event he/she makes less money than the other parent. In the event of a consent order this will not be determined by the court or trier of fact but rather the issue will be mediated by an attorney such as myself, To ascertain a fair solution. Finally, I suggest a temporary order of custody on consent bc there may be a change of circumstances in the future necessitating a petition to modify custody.

What course of action you to take depends on how cordial your relationship is with your significant other, but I strongly suggest the two of you get together with a lawyer (you both wave your individual right to counsel, which is fine if you are simply hashing out a custody agreement on consent, neither of which you are bound to sign )

The 2nd less desirable solution is to make a formal petition for custody in the Family Court. The reasoning behind this, though I do not recommend it based on the limited facts you’ve given is as follows:

When you say “my wife and I split custody 50-50“, I do not know what you mean nor would any other lawyer as there are two types of custody: 1. Physical custody, which is what I believe you two are referring to and, 2. more importantly, legal custody ( meaning you make decisions for the child if you have legal custody… This of course includes changing physical custody, so you need to make sure your custody agreement is filed with the court. It needs to be put in an order that you have at least 50% legal custody that way you may modify physical custody with the consent of your significant other or via petition.

What you don’t want is to have nothing written down and filed in court because you’re opening yourself up to get screwed, excuse my language. If you would like to call me and discuss this for free I can be reached on my work cell at 646–905-7268.

Finally, our firm does do non-binding mediation for couples or you can call just sitting down and working something out… $500 gets you a two hour session to hash out all the custody and support issues and after we have done so all together, you guys will just pay me by the hour to draft the custody agreement on consent which I will have so ordered by the court. (This would probably cost about $180-$250 making the total price for a consent agreement/stipulation of temporary custody and support, between $650 and $800. Litigation would be much more costly as each of you would have to retain an attorney, and for custody matters in Family Court we require a $5000 retainer; of course if the case is settled before trial in the 5000 or a portion thereof is not used it will be returned to you. That being said, however, I would try making an order on consent first because that is ultimately what you’re going to get with the settlement anyway unless you guys totally hate each other and want to take the child from each other.

Again please visit my website at AG3law.com or send me a text to 646–905-6268 for a free consultation if you would like us to mediate a custody-support agreement.


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