What is the difference between legal and physical custody?

Legal and physical custody are the different legal rights that a parent has over a child. However, one should not get too attached to the meaning of being granted legal or physical custody because in the end both parents have a right to be involved in the child’s life assuming a parent is not dangerous to the child’s welfare. 

Physical custody traditionally means the home base of the child. Joint physical custody means that the child spends about 50% of his or her time at each parent’s home. If physical custody is granted to one parent, usually the other parent is given liberal visitation. 

Legal Custody means that the right to decision making regarding the child. If the parents cannot get along usually only one parent is granted legal custody of the child. However the other parent who was not granted custody is entitled to be fully informed about what is happening in the child’s life. 

What does this mean for child support? Not much because child support is calculated based on both parents’ incomes. The parent with physical custody still must contribute to the child support. The parent living outside the home of the child happens to pay it because they are not there to buy the child’s groceries like the custodial parent is. The bottom line is that parents should not be too concerned about labels with regard to physical custody. 

If you are seeking clarity and or guidance with the concepts of physical and legal custody and would like to retain counsel in your child support or custody matter, contact Diana Mohyi Attorney at Law. 

Genetic Donor Pitfalls: Why You Don’t Donate Sperm by McDonalds Cup And More…

Generally the requirement to pay child support is not based on whether you married the mother but on your genetic link to the child. Improper donation of genetic material can cause you a lifetime burden and a huge never ending headache because you may be responsible for the child that it becomes apart of. You can be ordered to come into court to undergo genetic testing to determine paternity even if its not on paper that you were the donor. How can you avoid the pitfalls? 

Never donate your genetic material without ensuring that you are given proper waivers of responsibility towards the child that may result from that donation. Where a sperm donor gave his sperm to a Lesbian couple in a paper cup at a McDonalds, the Court ruled that the donor was required to pay child support. In that case, when the lesbian couple broke up the mother retaining custody sued for child support against the sperm donor and won. 

Never enter a surrogacy contract in New York State. Surrogacy contracts are illegal and unenforceable in the State of New York. Even if you do not care about having to take care of the child for the rest of your life, you don’t want to have to fight a custody battle with the genetic mother who decides that they do want to be in the child’s life after all. 

Never agree to create an embryo — otherwise known as a fertilized egg —- with your partner but fail to enter an agreement which outlines what may happen to the embryo in the event that you break up. If you sign a waiver which relinquishes your right to the fertilized egg, your partner may implant that material in themselves years later and then come after you for child support.

If you are considering entering an arrangement in which you exchange your genetic material with another person, other than the natural way, please contact Diana Mohyi Attorney at Law so that she can provide reliable counsel to you. 

When Does the Mother Not Get Custody?

For decades it was common for the mother to automatically get custody of the children. The result was so frequent that the perception became that it was purely the fact that the mother was the birther of the child that caused the result. However, there are reasons why the mother may not always get custody. Here are some examples: 

  1. Mother is not Primary Caregiver – When the mother has not been the caregiver of the child, it does not make sense to disrupt the child’s routine. 
  2. Mother unable to be Primary Caregiver – For example, the Mother is in a coma or a drug addict that is unable to care for the child. 
  3. Parental Alienation – Mother has alienated the child from the father resulting in the Court granting the father custody in an effort to heal the relationship. 
  4. Domestic Violence – Mother fails to end her relationship with a violent boyfriend and continues to allow him to live in the same home as her child. It is not in the best interests of the child to live in such an environment. 

These examples are not exhaustive and are fact specific. Just because someone may fall into these possible categories does not mean that it can be proven sufficiently without competent representation by your side. If you seek to obtain custody of your child contact Diana Mohyi Attorney at Law to help guide you through the process. 

The Quickest Way to Lose Custody: Bad Mouthing Your Ex’s New Family

Sometimes your ex does not wait to start a new family and you find yourself alone watching him or her start their new family unit. You may be tempted to bad mouth your ex and their family but think twice. You may lose custody of your child by such antics. 

The Courts prefer to place child in a family unit with two parents involved because they believe that it provides stability to the child. However, another major factor for consideration is that the child is most used to being cared for by one of the parents and should therefore stay with that parent. If the custodial parent begins to bad mouth her ex’s new family then the Courts have issued decisions placing that child with the new family unit. For example, where a mother told the child that the child’s new baby brother by another mother was not her real sibling the court awarded custody of the child to the father because this was confusing the child and having a negative impact on her. This kind of decision can be devastating but serves as an important lesson. Bad mouthing your ex will bite you in the behind. The younger the child, the less likely they understand they should not repeat what you told them to the other parent. 

If you are having difficulty with an ex spouse who is bad mouthing you to your child or if you are having trouble understanding how to discuss your ex’s new family with your child, contact Diana Mohyi Attorney at Law so that you have a counselor on your side. 

The Residency Requirement for Divorce and Family Court Actions

Despite the impression that some high profile cases make, no one can choose which jurisdiction they want their case to be heard without having a significant tie to it. New York, like other states, has enough of its own matters to deal with and does not want to deal with cases in which the parties do not have a significant connection to the state. The practice called ‘Forum Shopping’ is frowned upon. 

Even county shopping, especially between the boroughs of New York City, will not be tolerated. A judge once told my opposing counsel, ‘Brookyn does not want this case, go back to Manhattan.’ The court culture between the different boroughs is so different that when you have started a family court case in one borough you should not be starting a divorce case in another borough. The case must be initiated in the county where the children reside. 

For Divorce Cases, pursuant to Domestic Relations Law Section 230, the following requirements must be met to meet the residency requirements for initiating case in New York: 

  • Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started;
  • Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and (1) you got married in New York State, or (2) you lived in New York State as a married couple, or (3) the grounds for your divorce happened in New York State;
  • Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.

For Family Court Proceedings in general the parties and their children should have some significant connection to the State of New York. The child’s last habitual residence should be New York. The child’s permanent residence should be New York. Generally, to establish residence in New York, one must be living in the State for at least one year. 

Despite these rules, certain exigent circumstances could allow a parent to bring family court proceedings in New York regardless. If you are considering whether New York is the proper state in which to bring a divorce or family court action, call Diana Mohyi Attorney at Law to get a proper consultation on the matter. 

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