Child Custody and Divorce Litigation Bullet Points Part 5: Children and Litigation Issues

Going through a divorce is a difficult process at the best of times, but it can become particularly complicated when there are children to consider. When arranging your litigation strategy with a divorce attorney, you’ll need to think about things like who should be paying for child maintenance. There are also concerns to address about what sort of visitation and parenting rights need to be implemented for the best interests of the child.

Our bullet point guides have been on hold for a while. However, the issues surrounding litigation for children will be particularly important now that we are beginning to return to work from the offices and courts are allowed to accept new filings for divorces in the New York Supreme Courts or child custody and parenting time issues in family court (they were not deemed essential during the New York on pause order) after COVID-19. If the court deemed any single matter “essential” then children litigation issues could be heard prior to the reopening for which we are in Phase 3 now on Long Island at the time I am writing this blog.

In today’s bullet point guide, we’ll be focusing exclusively on some of the issues that may need to be addressed during divorce litigation when children are involved.

Visitation Orders and New York Divorce

Children are often unwitting parties in the divorce litigation process. Even if you do your best to keep them out of the arguments that need to happen in court, the orders that are put in place at the end of your romantic relationships or marriage will have a significant impact on the way that your children live their lives.

• It’s common for children in divorce litigation scenarios to resist the fact that their parents are separating. They may also take one parent’s side over another. If this makes it difficult for you to continue with your divorce litigation experience, you may need to consider looking into family counseling and therapy options that you can use alongside your legal proceedings. Counseling can be a good idea not only for the adult parents but perhaps for the subject children as well.
• The judge in a litigation procedure will consider a child’s wishes regarding visitation and parenting rights, if the child is deemed mature enough to offer a well-formed opinion. However, the court will always make a decision in the best interests of the child. This means that decisions on visitation times and parenting will be based on the evidence available and presented in court by attorneys like myself. A minor child does not get to control their own destiny until they are adults, but the older and more mature they are, the greater weight a court will give their preferences.
• Children will be required to adhere to the visitation and parenting orders imposed by the New York courts. If the court determines that a non-custodial spouse has visitation rights, then the child will be required to attend visitation. If court-imposed parenting times are not honored, then the courts may have to consider various forms of action, including, but not limited to, ordering therapeutic visitation, make-up time, modifications to the child custody and parenting time orders and even in extreme cases considering suspending or termination child support (constructive emancipation may be a defense to the payment of child support). During Covid-19 I received calls on all sides of parenting time issues.  Some calls were from concerned parents that thought the other side should not get the previously court ordered parenting time as the other parent was not following the health and safety guidelines like social distancing during the coronavirus pandemic.  On the other side we received many calls from parents that were being denied their court ordered parenting time by the other parent during the pandemic.  Now these cases may be filed again to be heard by the courts.
• In most cases, the court-ordered visitation that is imposed by the courts of New York and Long Island will be an order directed at the custodial parent. This means that if a child doesn’t comply with the order, then the parent may face legal consequences. If a court believes that a child’s decision not to attend visitation is caused by the custodial parent poisoning the child’s feelings to the non-custodial parent, then the custodial parent could be found in contempt.
• There are some reasons that a court may decide that a child should not be asked to comply with custodial orders. For instance, this may be the case if the home of the non-custodial parent is deemed unsafe for a child to visit. This may be the case in a pandemic situation, for instance, during COVID 19, parents who were putting their children in unsafe situations.
• Routine custody, parenting time, and child support issues were not seen as “essential” matters in this pandemic crisis situation. However, child custody and visitation issues can sometimes be considered emergent if they affect the child’s safety (in the eyes of the court).

Claiming Children as Dependents

It isn’t just child visitation and parenting orders that can cause disruption in the divorce litigation process when children are involved in a divorce. One issue that my clients frequently ask about is which parent should be able to claim children for tax purposes. The option to claim a child as a dependent can have an impact on the tax liability of the party. While I do not give tax advice, as I am not a tax attorney or tax professional, there are certain fundamentals that most family law and divorce attorneys are aware of.

Only one person can claim a child as a dependent on their tax return. However, custodial parents can waive their rights to these particular benefits.

If the parties have multiple children, the parties may be asked to agree on how to share, or not share, the dependency credits, or the courts may make that decision for them in litigation. Usually, the custodial parent will claim a child. However, there are cases where this may not happen.

• If a custodial parent agrees that a non-custodial parent can claim for a child, they can deliver proper tax forms authorizing this and the non-custodial child will be able to claim.
• In situations that have no written declarations providing which parent should have rights for claiming a child, and the issue isn’t mentioned in a divorce decree, there are tie-breaker rules available from the IRS to determine which parent should claim for the child. For instance, the IRS might look at how long a child has lived with each parent throughout the year when making decisions.
• In the event that the child has lived with both of the parents in this situation for an equal period of time, the parties may wish to consider whether they can come to some type of agreement about whether the highest adjusted gross income among the two parties will be able to claim the child as a dependent for their tax status and making adjustments to the finances amongst themselves to maximize finances. These agreements can be difficult to obtain between litigating parties, but it is usually worth a try.

If you have any questions about the child custody, visitation times, and litigation issues mentioned above, please read through some of the other blogs posted on this website or stay tuned for more bullet points to help you understand the basics of divorce litigation.

Alternatively, if you feel as though you need additional help with managing your own child custody or visitation case, contact my office today to schedule a free initial consultation. You can get in touch with us either over the online contact form on this website, or via a phone call to (516) 333-6555.