Family Law


Family relationships are rarely free from conflict and there are laws in place to assist families resolve issues when they become too burdensome. If you are facing divorce, have disputes over child custody, visitation, child support or guardianship, it is not recommended that you do it alone.  Patrick O. Forrester, P.C. understands the emotional turmoil involved at this time and has the experience to assist you in resolving these issues.

Divorce

A Divorce proceeding can be emotional, time consuming, expensive and an overall difficult time for all involved.  The uncertainty that surrounds divorce can make things even more unbearable.  Having the right representation can make all the difference.  Your Divorce will be either (1) Uncontested or (2) Contested. 

Uncontested

An uncontested divorce is one where your spouse signs the “Affidavit of Defendant” after being served with the divorce papers, indicating that he/she is not contesting the action and agreeing that all other issues are settled between the parties.  Your spouse by doing this agrees not to participate in the proceeding except to be sent a copy of the final Judgment of divorce.  Bear in mind however, in an uncontested divorce, some courts may require your spouse’s signature on an additional document to ensure that the children will be provided for.

If the parties agree on the terms of the divorce and meet all of the other requirements (such as “time” and” residency”) then neither party will have to appear in court.  Although this seems uncomplicated, it is extremely important to be represented by an attorney to ensure the matter is managed properly.  This is because in some cases your spouse changes his/her mind and decides to contest some issue or issues in the divorce.  Whenever possible, Patrick O. Forrester P. C. has worked with clients to help resolve issues and keep the divorce uncontested.

Contested

 A divorce is contested when the parties cannot agree on the terms of the split and court intervention is necessary to facilitate an agreement.  The parties could disagree on a number of issues including child custody and support, spousal support and the division of property, among other things.  In these cases, the matter must be adjudicated before the Supreme Court to obtain a Judgment of divorce.  We have represented many clients in contested divorces and have achieved favorable results in many of these situations.  

When the divorce is contested you need an office such as Patrick O. Forrester P.C. with experience in negotiating and trying these issues to put you in the best position as the outcome very often affects the rest of your life.   Never leave the outcome of your divorce to chance.

Divorce by Default

If your spouse does not respond after being served with the divorce papers, the divorce may be obtained on default after the period to respond has passed.   

Child Custody/Visitation

The legal standard for awarding custody and visitation to parents is “The best interest of the child” (LINK).  It is your right to be a parent to your child or children and it is one worth fighting over.  The mere possibility that your contact with your children could be restricted is unnerving, but it is one of the harsh realities of a broken home. However, the likelihood of a more favorable outcome is increased when you are represented by an attorney who understands how to properly counsel clients, investigate the facts and negotiate the issues in these circumstances.  Do not take the family court for granted, if you do, you may find that you are faced with an uphill battle of trying to modify an Order that could have been more favorable had you been represented by an attorney in the first instance. 

The courts are not supposed to favor the mother or the father in granting custody/visitation and at Patrick O. Forrester P.C. we ensure that you are treated fairly.  We also ensure that the custody arrangement is the one that best suits your situation.  To achieve this end, it requires skilled negotiations.  Each personal and family situation is different, including any special needs of the child.  As a result there are different types of recognized child custody arrangements. (LINK to following sections).

Joint legal custody exists when both parents are given the right to decide on major decisions affecting the child’s life regardless of which parent the child lives with and neither parent can over-ride the other.  Bear in mind however, that this kind of arrangement is only practical where both parents can get along to the point where they can discuss and make these decisions.  Very often one person is given the opportunity to make a final decision after discussions fall apart without a desired outcome.  The party given the opportunity to make the final decision must however act in good faith or risk being dragged back into court. 

In this situation it is possible that one parent may have physical custody.

Joint physical custody is when the child lives with both parents and both are legally responsible for the child’s care and for making decisions concerning the child’s well-being.  This is a shared custody situation which means both parents are “custodial parents” and typically whoever has the child at the time handles routine decisions or any non-major issues arising while the child is in their care.  This is a situation where a child may live with the mother one week then with the father the next, and so on.

Sole custody is when one parent has physical custody and legal custody that is, being responsible for making routine and major decisions concerning the child.  In the event that one parent has primary physical custody of the child, the other parent is entitled to visitation.

Visitation is awarded to the parent who does not have physical custody of the child. It is usually liberal, unsupervised and designed to foster a good relationship with the “non-custodial parent.”  Many visitation schedules are every other weekend, every other holiday, split summers and if the parents live nearby, maybe one night in the middle of the week.  It is quite normal for the non-custodial parent to have overnight visitation unless he/she does not have a safe place for the child to stay.  Visitation rights are only denied when it is bad for the child and therefore even an abusive parent or a recovering drug addict may get supervised daytime visits. 

Note that visitation is the right of the non-custodial parent and he/she cannot be forced to visit the child, but the court can amend the Order to limit the visitation or for the non-custodial parent to pay the costs associated whenever he/she “no shows” without notice. 

With the high emotions involved in custody/visitation matters and the dislikes sometimes of the parents for each other the real issues are very often overshadowed and so you need a law firm where the attorneys understand what’s at stake.  At Patrick O. Forrester P. C. we are ever vigilant and decisive in order to protect your rights. 

Child Support

Both parents are responsible for the financial support of their children and New York State has set up a Child Support Guideline to easily calculate the amount a non-custodial parent will pay in child support (LINK).  Under New York State law, parents are responsible for supporting their child until the child is 21 years old or the time of earlier emancipation.  Gifts to the child may not be considered “child support” and the person or parent receiving the support is not usually required to give an accounting.  The system uses a formula whereby the gross income of both parents is combined and each party knows what a rough estimate of the basic support will be.

The court uses the standard guideline to calculate what the non-custodial parent will pay, based on his/her adjusted gross income and on the number of children involved. The court first determines gross income, and then makes certain deductions (including Medicare, Social Security, and New York City or Yonkers tax) to establish your adjusted gross income. The court then multiplies the adjusted gross income by the standard guideline percentage for the number of children. These percentages are as follows:

  • 17% for one child
  • 25% for two children
  • 29% for three children
  • 31% for four children
  • at least 35% for five or more children.

To create the pro rata share for additional expenses the court combines the adjusted gross of both parents and compare them to create a ratio and then uses that ratio.  So that if Mother’s adjusted gross is $40K and Father’s adjusted gross is $60K mothers share is 40% and father’s is 60% for additional expenses also known as “add-ons”.

  Your support payment includes the calculated cash payment and other “mandatory expenses” such as child care costs, summer camp, and unreimbursed medical expenses all referred to as the “basic support” payment.  Then there are the “non-mandatory expenses” such as tuition, ballet, piano and other expenses to which you previously agreed.  If health insurance is available for your child through your employer, you may also have to get health insurance coverage for your child, sometimes at an additional premium, as long as the health insurance coverage is available at a reasonable cost and is accessible to your child.  You should only be asked to pay your pro rata share of this additional expense.

Once the court makes a final determination as to the amount of the child support payment, it is usually due each time the non-custodial parent is paid.  The court may also assess retroactive payments but cannot go beyond the date the petition was filed.  The court may also deviate from the Child Support Guidelines when the award would be “unjust or inappropriate”.  At Patrick O. Forrester,  P.C. we ensure that there is fairness in the support procedure every step of the way for our clients.

Income over $141,000
If the combined parental income amount is over $141,000, the court may consider either the standard guideline percentages and/or other factors in setting the full child support obligation.

Note that the non-custodial parent has to pay child support even if he/she receives unemployment benefits, disability benefits, Social Security payments, or worker's compensation payments.

Child Support Cannot Put you Below the Federal Poverty Guideline

After the court determines the amount you should pay for child support, the court then considers how much income you will have after child support is deducted. If your remaining income would be less than or equal to the federal poverty income guidelines, an order for a lower amount (for example $25 per month) may be issued. This amount may then go up when your income increases, after review by the court.
In addition unpaid child support arrears that can be accrued (built up), cannot build to more than $500.

If your child is receiving temporary or safety net assistance from social services, the first $200 of any current child support payment you make will be given to the person taking care of your child, in addition to the monthly temporary or safety net assistance grant.