So you are starting life anew, with a new spouse or paramour, more children or change in custodial arrangements.  With either of these changes, you may have taken on the responsibility of a new family and more expenses and with your partner’s salary may have additional income coming into the home (or at least the opportunity to pool resources).  But your prior responsibilities still exist, particularly your children, which include expenses and other obligations associated with them.  Whether the old and new obligations overlap or remain separate is determined by legal principles and statutes in New York. Child support, child custody or visitation, paternity and child abuse are all subject to principles of law that affect both pre-existing and new found responsibilities that accompany a change in the family unit.

         Let’s first take a look at child support, the financial obligation for the pre-existing child or children takes precedence over any new or afterborn children as far as the courts are concerned.  Additionally, the child support obligation imposed upon the noncustodial parent may or may not be impacted by his/her new spouse’s income.  Where there is a child support obligation for a child or children that existed beforehand, the court must take into account the amount of the court ordered obligation or obligation by agreement (which meets the legal requirements of the statute).  If there is no such court order or agreement for child support, in cases where the parties have a verbal arrangement instead, then the court is under no obligation to consider the noncustodial parent’s children that were born beforehand.  However, if the noncustodial parent has other children and he is the custodial parent for those children, then the court will consider the financial obligations imposed on that parent for those children when calculating “adjusted gross” income.  If there is access to other sources of income, by means of a new spouse or live in paramour or he receives child support from those children’s other parent, then that income will be used to determine if the current child support obligation should be reduced (which requires the court deviating from the statutory guidelines).  Pursuant to the Family Court Act, if the amount of income available to the noncustodial parent’s afterborn children , who live with the noncustodial parent and his/her spouse, is less than the amount that would be available for the first born children, then the court will reduce the amount of child support obligation because the household income of the noncustodial parent should not be less than the income available to the first born children .  The Financial Disclosure Affidavit requires that the noncustodial parent provides income and expense information for both him/herself and their spouse or paramour.  This information is to help the court determine if it should deviate from the Child Support Standards Act, at the request of either party, which will be based on the availability of income and/or assets of the noncustodial parent (which includes that other person’s income). 

EXAMPLE: The noncustodial father is currently being sued for child support for a 12 year old son from a previous relationship.  He and his current wife’s income (and tax returns) will be requested automatically, even though only his income will be used to calculate child support. However, he requests that he not be required to pay the obligatory 17% (the percentage required for one child), on income of $40,000, because he currently has an IRS tax obligation of $16,000 where he is repaying $600 per month.  But he has access to additional income, his wife earns $56,000.  Consequently, her income is covering the family’s expenses because his is limited by the tax repayment.  Therefore, the court may actually decide to take this into account and adjust the father’s child support obligation downward based on this, in addition to several other factors. 

          Next, take child custody or visitation, the existence of a new family (or family member) may affect the factors used to determine the “best interests of the child”.  More specifically, the stability of the home (new), the flexibility in schedule and availability of the custodial parent’s spouse to take care of the children and the positive influences of the new and/or additional family members can all support a favorable child custody determination. In cases where neither parent is a drug or alcohol abuser, is incarcerated, is a child abuser or domestic violence perpetrator, there will be a test of “fit” vs. “fit”.  This means that the court will determine which parent is more “fit”, since each will be presumed to be “fit” given the fact that neither parent exhibits any of these patent indicators of “unfitness” in a custody case.  In this circumstance, indicators of a more stable and loving home environment certainly prevails, particularly where an intact family has been established.  For this reason, a new spouse will be interviewed and scrutinized, particularly where the relationship between the spouse and the child has not quite developed yet.  The homestudy, conducted by ACS or the Probation Department will include a background check (which will include an SCR check for abuse or neglect findings) of the new spouse as well as an interview with that individual.  Additionally, the forensics evaluation will either conduct in person interviews or make some contact with the new spouse in an effort to determine the spouse’s ability to provide a nurturing environment for the child (both assessments will be done of the spouse or paramour in custody and visitation cases).  And although the courts cannot dictate who the parties actually choose to live with, the courts can certainly determine which parent shall have custody based on each of their choice in partners. Stepchildren being present in the home will  also be considered as a factor if those children have emotional, psychological or physical issues that may affect the other children.  Conversely, a noncustodial parent may have legitimate concerns with his child’s new stepparent and/or step-siblings.  If these concerns raised are legitimate and adversely affect his/her child’s emotional or psychological well-being, this can certainly tip the scales in favor of the noncustodial parent where he or she is seeking custody (and will assuredly be considered in visitation cases as well).  In guardianship cases too, the new spouse or paramour (or any adult living in the home) will be investigated (and fingerprinted) to ascertain if they are able to provide a safe environment for the upbringing of a child.

         Paternity is also an area where the existence of previous relationships affects the outcome of the court case.  However, in this particular circumstance, it is the relationship itself that matters, not the existence of additional children or a new spouse/paramour.  Specifically, if the parties were married at the time a child was conceived, New York law requires that the court  presumes legitimacy of that child.  Based on principles in public policy, a man and woman legitimately married are assumed to be the natural parents of children born of that marriage.  Therefore, in a situation where the father wants to challenge paternity once the relationship dissolves, he may be precluded from proceeding with the case based on this presumption of legitimacy.  Therefore, any real concerns that the wife conceived a child with another man while married must be resolved outside of court (except in rare circumstances where the natural father cooperates and participates in the proceeding).

         And lastly, in child abuse or neglect cases, the presence of existing or new families certainly weigh into the outcome depending on the phase of the court proceeding.  A parent or “person legally responsible” may be held responsible for physical, emotional or psychological injury or the risk of such injury to a child and/or his/her siblings.  So if a parent, foster parent, stepparent or adoptive parent is the target of a child abuse or neglect proceeding, any child brought into the subject home while a case is pending or after there has been a “finding”, that new or additional child may become  part of the court or child protective proceeding as well.  These sorts of cases are considered “derivative” because the afterborn child or child who moved into the home after a child abuse or neglect case has commenced, may be put in “immediate danger” as a result of the abuse or neglect the first child was subjected to. Regardless of the rehabilitative services provided, the removal of the dangerous situation or abuser or the circumstances that may make it illogical for the new child to suffer the same abuse, that child may still be the subject of a new child protective case after the fact. At the same token, a new spouse or paramour may be subjected to the same investigation as is the case in a child custody matter, since that person’s ability to provide a safe environment for children is a very important factor.  

          This day and age, it is inevitable that children and families will be subjected to several changes in its family structure.  With the divorce rate steadily climbing, the number of out of wedlock children soaring since the 1960’s and the influx of immigrants, the family unit can go through several transformations or restructuring before the children reach the age of majority.  In that, it is essential to stay abreast of the implications and responsibilities placed upon the old family, as well as the new, so that informed decisions can be made surrounding all of these important issues.    

Please feel free to contact my office to discuss your family law issues.