Legal Question in Family Law in New York
My son has been living with my wife since we separated about a year and a half ago. I have had him on the weekends. i have voluntarily paid the equivlent top ny's child support amount right from the begining despite not having any order to do so. So when she set up the divorce papers stating that custody and child support would continue the way they are i agreed to it in order to avoid draging my son through a long complicated divorce. i found out last week that my wife wants to leave the country and move to sweeden within two and a half months. and she will give me custody of my son, which i am super happy about. My question is since the divorce papers have already been notorized (and apparently are with her legal advisor since the court says that they haven't recieved them)but the divorce has not yet gone through, in order to change the custody arrangements will i have to wait until the divorce is over and then petition for custody? or can i contact family court and petition for custody now since she will be moving very soon and i don't know if the divorce will have gone through yet. Also, starting once school gets out i will have him on weekdays and she will have him on the weekend. she has stated that if i continue to pay her the full child support amount that i've been paying she would be willing to sign and have notorized a paper saying that i can have custody. Is that legal for me to do that or will it be seen as me trying to buy custody? and would a letter from her giving me custody even be accepted?
1 Answer from Attorneys
Based upon the information you provide, I believe you state that the Stipulation of Settlement has not been submitted to the court for approval. If that is correct then all you would need to do is get your attorney and her attorney to tear up the prior agreement and/or rewrite the stipulation (with a statement in the new document amending or vacating the prior document) giving you custody and granting you child support.
If this is not the case and the documents have already been submitted to the court you will be required to wait until the court has taken action. Using an affidavit of emergency, you could ask the court for expedited action and submit an amended stipulation with permission of the court.
Either way, you will need assistance of an attorney and the court. Once the matter is in Supreme Court the Family Court will not have jurisdiction over the matter until the Supreme Court has ruled therefore bringing an action in Family Court will be a waste of time.
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