NYLE Matrimonial & Family Law 4 — Questions and Answers
Question 1: Under New York's Child Support Standards Act, child support is calculated on combined parental income up to a statutory cap. What happens to income above the cap?
- It is ignored entirely for child support purposes
- The court must apply the CSSA percentage to all income above the cap
- The court may apply the CSSA percentage or consider the statutory factors to determine support on the excess (Correct answer)
- The excess income is divided equally between the parents
Correct answer: The court may apply the CSSA percentage or consider the statutory factors to determine support on the excess
For income above the CSSA cap, courts have discretion to either apply the percentage or consider the enumerated factors in DRL §240(1-b)(f).
Question 2: A divorce settlement agreement incorporates but does not merge a spousal maintenance provision. What is the primary consequence?
- The court loses jurisdiction to enforce or modify the provision
- The provision survives as an independent contract enforceable in contract actions (Correct answer)
- The maintenance automatically terminates upon remarriage of the recipient
- The provision merges into the judgment and is modifiable as if by court order
Correct answer: The provision survives as an independent contract enforceable in contract actions
When a provision is incorporated but not merged, it survives as a separate contract, giving the recipient an additional breach-of-contract remedy but limiting the court's power to modify it absent fraud or overreaching.
Question 3: In New York, which of the following factors is expressly listed in DRL §240 for a court to consider in awarding custody?
- The parent's income level
- Domestic violence in the household (Correct answer)
- The parent's religious affiliation
- The child's academic performance
Correct answer: Domestic violence in the household
New York courts are required to consider domestic violence as a factor in custody determinations under DRL §240(1)(a).
Question 4: A child born in New York to unmarried parents has a presumed father who is not the biological father. Under New York law, who may challenge the presumption of paternity?
- Anyone with an interest in the child's welfare
- Only the presumed father or the biological father (Correct answer)
- Only the mother or the child
- Only the State in a child support proceeding
Correct answer: Only the presumed father or the biological father
New York courts have held that only the presumed father or the biological father generally have standing to challenge the presumption of paternity, balancing finality and the child's interests.
Question 5: Under the Family Court Act, which of the following is required before a court may place a child in foster care based on abuse or neglect?
- A criminal conviction of the parent
- A finding of abuse or neglect after a fact-finding hearing (Correct answer)
- Voluntary surrender of parental rights
- A 72-hour emergency removal without any prior hearing
Correct answer: A finding of abuse or neglect after a fact-finding hearing
Before a child can be placed in foster care, the Family Court must conduct a fact-finding hearing and make a finding of abuse or neglect by a preponderance of the evidence.
Question 6: In New York, which of the following is true about grandparent visitation rights?
- Grandparents have an absolute right to visitation if one parent has died
- A court may grant grandparent visitation only upon a showing of equitable circumstances and best interests (Correct answer)
- Grandparent visitation is never permitted over the objection of both fit parents
- Grandparents must be the primary caretakers to obtain visitation
Correct answer: A court may grant grandparent visitation only upon a showing of equitable circumstances and best interests
Under DRL §72, grandparents may petition for visitation if they show equitable circumstances (such as death of a parent or denial of access) and that visitation is in the child's best interests.
Question 7: Under New York law, a separation agreement between spouses must be:
- Approved by a judge before it is effective
- In writing, subscribed by both parties, and acknowledged before a notary (Correct answer)
- Witnessed by two independent witnesses
- Filed with the county clerk within 30 days of signing
Correct answer: In writing, subscribed by both parties, and acknowledged before a notary
DRL §236(B)(3) requires a separation agreement to be in writing, signed by both parties, and acknowledged before a notary in the same manner as a deed.
NYLE Matrimonial & Family Law 4
Under New York's Child Support Standards Act, child support is calculated on combined parental income up to a statutory cap.
What happens to income above the cap?