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Can the custodial parent be changed once the child turns 18 in New York State?

Syracuse, NY |

My 19 year old son currently lives with me and I am the custodial parent but his mother has offered him a car if he moves in with her and attends college and is taking me to court to pay child support for him. Can she do this?

Attorney Answers 3

Posted

She can petition the court for custody. If there is no agreement between the parties the court will have to decide what is in the best interest of the child.

I have been a criminal attorney in New York for almost 25 years. website: Brooklynlaw.net Phone #: 718-208-6094 email: howard@brooklynlaw.net. This answer is only for informational purposes and is not meant as legal advice.

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Posted

Perhaps. Child custody jurisdiction expires at age 18. Child support jurisdiction expires at age 21 or "emancipation" of the child (attending college is not emancipation, even if away from home). So, if the child lives with her, you could be a non-custodial parent liable for support if a support or support modification petition is brought in Family Court. Is there currently a support order requiring the mother to pay you child support? (Just curious).

This answer is provided under the Avvo.com “Terms and Conditions of Use” (“ToU”), particularly ¶9 which states that any information provided is not intended as legal advice or to create an attorney-client relationship between you and me or any other attorney. Such information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. In particular, my answers and those of others are not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely solely upon Legal Information you obtain from this website or other resources which may be linked to an answer for informational purposes. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege. The full Avvo ToU are set forth at http://www.avvo.com/support/terms . In addition, while similar legal principles often apply in many states, I am only licensed to practice in the State of New York and Federal Courts. Any general information I provide about non-New York laws should be checked with an attorney licensed to practice in your State. Lastly, New York State Court rules (22 NYCRR Part 1200, Rule 7.1) also require me to inform you that my answers and attorney profile posted on the Avvo.com site may be considered "attorney advertising" and that "prior results do not guarantee a similar outcome".

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11 comments

Asker

Posted

No there is currently not a support order in place because I am the custodial parent of our 19 year old son and she is the custodial parent of our 13 year old daughter so it was a wash

Asker

Posted

I was under the impression that the custodial perent could not be changed after the child reaches the age of 18?

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Well that's true, but support jurisdiction extends until 21. That's a novel problem to me, as to whether support can be changed even if there is no custody jurisdiction, and it would probably require some research and finding an appellate case on point.

Asker

Posted

I guess I will find out soon enough, my court case is in 2 days. I understand you may have a "biased" answer to this but do you think I would need a lawyer for this or do I have the opportunity to weigh it all out before I decide?

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

I would hire an attorney and check out the jurisdictional angle, personally. This is an oddball issue I'm sure has come up before because of the mismatch of the ages for custody and support jurisdiction. No court can order either parent to have custody at 18; the child can live with whomever he/she pleases (and even at 14-17 is given a lot of input through the "Attorney for the Children's" input and the "best interests" test). But support jurisdiction extends until 21, so the child may choose whom to live with. However, whether this "changes" custody for the purposes of support jurisdiction and identifying the non-custodial parent is unclear to me. I suspect it does, simply as a matter of fact, but the answer would be found in the law books and some research. I would think there's some appellate law on the topic and it would be good to know what it says. (However, the support magistrate is likely to know the answer to that question, so the mystery will probably be resolved with or without an attorney, however, you could prepare yourself.

Asker

Posted

That is outstanding advise, I appreciate your time and I don't have an issue hiring a good lawyer who will do this work for me. I just have not had success in the past and wound up doing all of the work myself anyway. As you can tell I have been doing battle with my "EX" for a number of years and finally gave up paying a lawyer for work I was doing.....maybe I have chosen the wrong profession. Your advise is greatly appreciated....Thank you

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

You're welcome, good luck! I did a quick search on Google Scholar (which has searchable full-text NYS case law, for free at scholar.google.com) and found a case that has somewhat different fact pattern but explores the intersection between the support jurisdiction of the magistrate and the custody of the family court judge in the Family Court Act and essentially determines the support magistrate cannot determine custody issues (emancipation/visitation). This case seems to imply your argument is good that custody determinations made before age 18 can't be amended by the court after the age of 18, this permanently establishing you as the custodial parent for support petition purposes as well. MATTER OF STEPHEN L. v. KAROLE A., 2012 NY Slip Op 50208 - NY: Family Court 2012 http://bit.ly/10gqZUK There may be other, more direct cases on point, but since this case illustrates basic principles of jurisdiction of each type of court proceeding, you have a good argument the custody needle was stuck at Dad for both support and custody purposes by the pre-18 year old determinations for your son.

Asker

Posted

I will follow up on that case, you need to come to Syracuse!! A lot of work here for a good lawyer!! Thank you

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

LOL. I used to be of counsel to a Syracuse law firm (the former Green & Seifter) before the 2008 "crash" and the shut down of their Albany branch office and my "lay off". (Green & Seifter is now Holstein Bosquet, in one of those old 1970s era high rise office buildings downtown.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Lowell Seifter ditched the place to go to work for a hospital client. Syracuse isn't a panacea for an attorney either, all of upstate NY is still shaky, but oh well, it's mostly been my home for a long time and I'm loathe to leave...the devil you know, I guess...

Asker

Posted

I agree, originally from Syracuse and left for 10 years only to return to my roots.....affordable living in Upstate......with the exception of my ex LOL

Posted

At age 19, the child can choose who he or she wants to live with. The court cannot order that one parent has custody for a child of that age.

Child support, in NY, generally goes until the child reaches age 21. Whichever parent the child is living with can petition for child support from the non-custodial parent.

It is always advisable to contact an attorney. For a consultation, please contact our office at 516-669-3295. We are located in West Babylon, NY and proudly offer very low rates and free consultations. For more information, please see our website: <a href="http://www.LouisLSternbergLaw.com">Long Island Divorce Lawyer Louis Sternberg.</a>

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