Divorce and Custody, New York Style:One Size Does Not Fit All

When Wendy Swallow filed for divorce in the 1990s, she naively assumed that, as the mother, the courts would grant her sole custody of her two sons, and that her husband would not contest it because she was "the better parent - the patient one, the long-suffering one, the deserving one." But as Swallow, former staff writer at The Washington Post and the journalism director at American University, chronicles in her no-holds barred divorce memoir, Breaking Apart, she discovered that she and her husband "were both flawed, both trying, both deserving, and both strong parents." "No wonder he was fighting me," she says.


In making custody and visitation rulings, the New York State courts use the standard of "best interests of the child." It means, broadly speaking, "parents' ability to meet the child's emotional and financial needs," writes Mimi Lyster in Child Custody: Building Parenting Agreements that Work.

Swallow painfully acquiesced to joint custody and became a part-time mom. (Virtually every state has specific statutes allowing judges to order joint custody; in New York, however, joint custody is left to the discretion of the court). With the help of therapists, counselors and mediators, she came to understand that her sons didn't have to give up one parent.

"Many people question whether the back-and-forth of joint custody is good for kids, but I think it is far less damaging than when children lose having a close relationship with either parent. My kids got very adept at packing up their important things and moving to the other house. In truth, sometimes I think they liked it, the change of scenery," she says.

However, she adds: "It is difficult to manage joint custody if the parents are still fighting. You need to be able to tolerate a lot of interaction with your ex, and if that is going to be high-conflict, that's generally not good for the kids."

Swallow's husband retained the large family house in Washington, and she eventually bought a smaller house in an affordable Maryland suburb in a good school district. While Swallow has "easy access between the two homes in rush hour," Rob L. logs in about 45,000 miles a year to see his two sons, ages 10 and 12. For business reasons, Rob moved to Glen Cove, Long Island, so he drives 1-1/2 to 2 hours each way, one to two nights a week to spend an hour-and-a-half with them. He also sees them every other weekend. His ex-wife has residential custody, and he has unobstructed visitation rights (i.e., he can see them on request).

"We wanted the divorce to have the least impact on the children, so we decided they should stay in their home in New Jersey," he says. At the beginning it was difficult, especially for the older boy, who was 3 when they split up.

"We made an effort to instill in them that they didn't have anything to do with it. We have open conversations about the divorce. We generally agree on the basic rules - how late to stay up, how often to check in - and the children don't get everything they ask for. My ex is a great mother. I kind of wished it worked out," he says regretfully.

In New York City, mileage may not be an issue, but housing, which is at a premium, often leads to creative living arrangements. "Many times the biggest asset is their house," says Dr. Carol Butler, a Manhattan psychotherapist-mediator, and co-author of The Divorce Mediation Answer Book.

"Sometimes the two parents can't afford two places and be co-parents, so they stay in the same house. In one case, each had a separate floor in their house. Another turned the basement into a bedroom for one parent and the other parent had the pre-divorce bedroom," she says. "For some long-married couples, the marriage had already evolved into sleeping separately and leading separate lives, so they can handle this arrangement.

The hope is they won't fight. They don't want to sell the brownstone or townhouse, they live in a great location and it's difficult to find an apartment."

In another case, the ex-husband had a girlfriend who lived in a small town on the West Coast, and he was going to live with her. The ex-wife worked for a company that had a branch in the same city. She was willing to transfer to the company's branch office and buy a house in the same community, so both could co-parent.

Margery Rubin of Manhattan-based DivorceSource, observes that in many cases there's "already somebody else out there. Infidelity gives them the courage and confidence to get out." She cites the very public divorce of former Mayor Rudy Giuliani as a case in point. "Forget about the money; he lost big time. He's paying child support and won't make the decisions. His behavior was irresponsible. He paraded his girlfriend," she says. "Divorce has a big impact on adults, but let's not forget, it has an even bigger impact on children."

Rubin was married to "one of the killer matrimonial attorneys" for 22 years before they divorced. It took four tough years to settle their financial affairs, but the children were not a part of it. As a result of having met all the major New York attorneys during her marriage and her "trial by fire", Rubin has become a savvy consultant in the practical issues involved in divorce. She asserts that New York City parents don't have a lot of help. There's no chapter of Parents without Partners in Manhattan. (There is a chapter in Nassau and Suffolk counties, Westchester, Queens, Staten Island and three in Brooklyn).

"The conception is that they're wealthy. And New York's a tough town to get people together. The inner city tends to have help because we reach out, but the middle class lacks services," Rubin says.

With the divorce rate topping 50 percent, parenting arrangements can be as creative as a couple allows. Some people need minute by minute custody details; for example, if you're more than half an hour late, you must call; while for others, flexibility is desirable, Dr. Butler says. Dr. Butler, who has a background in couples' therapy, notes that by the time two parents sees her for mediation, they are usually civil and want to try to settle things amicably.

Ron Salberg, who runs Divorce Helpers (www.divorcehelpers.org), a paralegal service in Woodside, Queens, also sees clients who have already resolved their issues, and he helps them get uncontested divorces. In one of his cases, both parents had to agree to reside in the same school district.

"If it can't be worked out or is not in the best interests of the child, maybe it should be monitored by a court," Salberg says. "I can only stress that for the child, parents try to be fair and harmonious."

He adds: "They must be future-focused because they're going to deal with each other for a long time. Both want to be present at family events, so they have an investment in finding a way to have civilized communication."

Meanwhile, Wendy Swallow has resolved to live her life on those terms. "I learned some surprising things about myself through this process - that I can compromise and still retain my dignity; that I can voice my concerns without criticizing; that to be trusted I have to be trustworthy; that I can protect myself better by horse-trading than by grandstanding. But mostly I've learned how sweet life can be when you forgive and move on."





How to File for Divorce in NY

By Brette McWhorter Sember


There are two ways to get a divorce in New York State. The least combative method is via filing for separation. The more difficult route is by filing for a divorce based on one of a select few grounds.

A couple can sign a separation agreement (which details all the property and financial arrangements as well as custody and visitation), wait a year and then convert it to a divorce decree. This method avoids accusations of fault, and does not require painful courtroom testimony. The separation agreement can be negotiated by the parties' attorneys, or can be created through mediation.


Grounds However, for those who do not wish to wait a year a divorce can be sought by filing papers with the court, based on one of the following grounds:

• Imprisonment: Your spouse was imprisoned for three or more years during the marriage within the last five years.

• Abandonment: Your spouse abandoned you (left you without any provocation from you) over a year ago, and you asked him or her to return and he or she refused.

• Adultery: Your spouse committed adultery during the marriage. You must have proof from a third person (your first-hand knowledge or an admission by your spouse is not enough). This is generally very difficult to prove and is not commonly used.

• Cruel and Inhuman Treatment: This is the most common reason for divorce. Your spouse treated you so cruelly and inhumanly - either physically, emotionally or mentally - that it is no longer safe for you to live together. The language seems a little harsh, but almost every divorcing person can probably think of an instance when his or her spouse called him or her a name, provoked an argument or withheld affection; these instances will fit the requirements.

Residency New York has stringent residency requirements in order for a couple to be eligible for a divorce in the state. There are several types of residency that are acceptable: one of you has lived in the state for two years; one of you has lived in the state for one year and the grounds for divorce happened here; you both live in New York and the grounds happened here; or one of you has lived in New York for a year and you were married here; you lived here while married at some point.



Divorces are handled only in Supreme Court. Family Court handles custody, support and orders of protection cases for couples who are married but have not yet filed for divorce; for couples who have never been married; and for couples who are already divorced.

If you are separated and have not yet begun the divorce process, you can go to Family Court to obtain custody, child support and an order of protection. Many people represent themselves in Family Court.

The Divorce Process Unfortunately, the divorce process can be a long one in New York. The fastest way is to have an uncontested divorce. In this instance, one spouse files for divorce and the other spouse does not respond or files papers agreeing to it. The divorce can then happen within a few months.

A contested divorce takes much longer. In this case, papers are filed to initiate the divorce and the other spouse responds. Months are spent in negotiations; eventually, the case will come to court for pre-trial conferences. If an agreement cannot be worked out by the attorneys, then it is scheduled for trial (where evidence is presented and witnesses are called).

The items that are most contested in divorces are custody and property distribution. Many times these disputes go hand in hand, with one spouse refusing to agree to let the children live with the other parent unless he or she gets a better financial deal. Contested divorces are very difficult for everyone involved, and can be especially painful for children.


Paperwork A divorce is initiated with service of a summons, which notifies the other spouse. There is a long list of documents that must be filed with the court before a divorce is finalized. The Judgment of Divorce is the final piece of paperwork, and the one that finalizes the divorce.

The state issues a packet of forms for an uncontested divorce.


BRETTE McWHORTER SEMBER, a regular contributor, is the author of ¡®How to File for Divorce in New York'.


Child Custody, Visitation and Support

By Brette McWhorter Sember


Custody, visitation and support can be some of the most contentious issues faced by families in a divorce or at the end of a relationship. In New York State, these are some of the ins and outs:

How Custody is Determined Custody is determined based on "the best interests of the child". If a couple is able to reach a custody agreement, the court will almost always accept it.

New York State Family Court handles custody and visitation cases unless they are part of a divorce. When there is a divorce in progress, the New York Supreme Court handles custody and visitation. Family Court is very user friendly and does not require an attorney.


Types of Custody There are three main types of custody arrangements. Sole custody means the child lives with one parent and has visitation with the other. The residential parent is the one who has the authority to make all decisions about the child's life. In joint custody, the child lives primarily with one parent but spends time with both parents; both parents must work together to make decisions about the child's life. Split custody is an arrangement where the child spends an equal amount of time with both parents, and both parents make decisions about the child's life.

Joint custody is the preferred type of custody because it keeps both parents involved with a child's life, yet allows the child to have one place to call home. When custody is determined, a visitation schedule, or parenting plan, is normally created, which specifies when the child will spend time with both parents. The plan usually includes information about holidays that will be shared between the parents. The parents can modify or change the visitation schedule on their own at any time, so long as they both agree on the changes.

It is almost always best for a child to have contact with both parents. Unfortunately, while there are some non-custodial parents who do not exercise visitation, there is no way to force a parent to exercise visitation.

And as the makeup of families changes, so we can expect changes in divorce arrangements in the future - as witnessed by the recent case where a custodial parent, moving out-of-state for a job, won the right to fulfill her legal requirements by forcing the non-custodial spouse to sometimes use "virtual visitation"; he now visits his children online. The father is fighting the ruling.


Child Support Child support exists to ensure that children are financially supported by both parents. It is important to understand that child support has nothing to do with visitation. Some non-custodial parents mistakenly think that they can reduce the amount of child support they pay when they spend more time with their child (rationalizing that they were "supporting" their child when he or she was with them).

Child support is also not affected if a parent does not exercise visitation. The parent receiving child support can use the money in any way he or she sees fit and is not required to spend the money directly on the child.


How Child Support is Determined Child support is determined using a mathematical formula, which calculates a non-custodial parent's income. Child support is then determined by taking a percentage of that income:

• 17 percent for one child,

• 25 percent for two children

• 29 percent for three children

• 31 percent for four children

• 35 percent for five or more children.


It is possible to vary the amount of child support if both parents agree and certain conditions are met. Additionally, if the combined income of the parents is greater than $80,000, the percentages are not always applied.


How Support is Collected Child support can be paid directly to the custodial parent or it can be paid to the Child Support Collection Unit (SCU), which is run by the state. Often the transaction occurs via an income deduction order, which takes the money owed directly out of the non-custodial parent's paycheck. When support is paid through SCU, it is reviewed every two years and adjusted for inflation. SCU also takes on the responsibility of assisting with the collection of unpaid support. There are serious consequences for nonpayment of child support, which can include suspension of a driver's license or professional license, withholding of tax refunds, and even jail time.


Brette McWhorter Sember is also the author of Child Custody, Visitation and Support in New York.