OVERVIEW

Ideally, issues of child custody, support and visitation are resolved between spouses amicably; unfortunately, this is not always the case.  If custody and child support issues are fully contested, the judge and not the parties, will be called upon to make the final decision.  In a contested custody case, social workers, psychologists and other experts may be as witnesses to express opinions regarding who should have physical custody of the child(ren).  This process is expensive and allows ‘strangers’ to make and participate in custody decisions.  Children and family members may also be called upon to testify; this can often create alienation and hostility between the children, parents and other members of the family.  The scars of a custody battle may be borne by the children throughout their lives and affect their future relationships.

CUSTODY CONCEPTS

Legal Custody

‘Legal custody’ refers to a parent’s right and obligation to make decisions on behalf of his or her children after a divorce, including those decisions affecting health, education, religion and welfare.

Physical Custody

‘Physical custody’ refers to the right to have the children live with a parent after the divorce.  As a general rule, the parent who has been most involved with his/her children before the divorce will be awarded primary custody and will assume greater decision-making responsibilities then the non-custodial parent, especially regarding day-to-day decisions.

Joint Custody

Joint custody, sometimes referred to as “shared custody” or “shared parenting”, refers to a situation where both parents participate equally in major decisions affecting the child.  In recent years, a growing number of fathers have become intimately involved in the day-to-day care of their children. As a result, the courts are increasingly likely to make an award of shared parental responsibility or joint custody. Shared, or joint custody encourages both parents to be full participants in their children’s life after the divorce and fosters the natural development of the child’s love and affection for both parents.  Nearly all states recognize joint custody as an option and some treat it as the preferred arrangement.

Primary Physical Custody

Primary physical custody, that is, where the child will live, is generally awarded to one or the other of the parents, even in a joint or shared custody arrangement. The courts favor awarding physical custody to one parent because it is generally felt that a child needs a stable environment, continuity of attendance in one school and a place that the child considers to be his home. Where primary physical custody is awarded to one parent, provision is usually made for extended visitation, as during the summer recess, with the non-custodial parent.

Visitation

The parent with primary physical custody must allow free and open access to the child by the non-custodial parent upon proper notice, unless there is a good and valid basis to restrict such access.

Visitation and Child Support

The obligation to pay child support is not contingent on the non-custodial parent being allowed visitation.  It should be clear therefore, that even if visitation is wrongfully denied, payment of child support must continue.

Restricted Visitation

If the non-custodial parent has molested the child, is likely to kidnap the child, uses drugs, alcohol or engages in illicit activities in the presence of the child, visitation may be restricted or denied.  The impact of either parent’s homosexuality varies from state to state.  Some states assume that the relationship is harmful to the child’s development.

Shared Custody (Split Custody)

Infrequently, the court may direct that the child spend 50% of the time living with each of the parents under a ‘pure’ shared custody (split custody) arrangement.  Pure shared custody is generally only possible where the former spouses live in the same community.  The parent with primary physical custody must allow free and open access to the child by the non-custodial parent upon proper notice, unless there is a good and valid basis to restrict such access.  If the non-custodial parent has molested the child, is likely to kidnap the child, uses drugs, alcohol or engages in illicit activities in the presence of the child, visitation may be restricted or denied.  The impact of either parent’s homosexuality varies from state to state.  Some states assume that the relationship is harmful to the child’s development.

How Child Custody is Decided

The court will consider all relevant factors in determining child custody issues including the age and sex of the child, the child’s desires, the relationship between the child, parent and siblings, the child’s adjustment to home, school and the community and the mental and physical health of all parties involved. Ultimately, the court will apply “the best interests of the child” test to determine which party will be awarded primary physical custody.

Child’s Preferences

The wishes of a child may be an important factor in deciding custody.  The opinion of the child will be given greater consideration as the child gets older and becomes more mature.  Often judges will speak to the child privately in chambers to determine the child’s preferences.  The court may also appoint a mental health professional to talk to the child and report to the court.

Young Children/Tender Years Doctrine

In the past, courts have generally favored awarding primary physical custody, particularly of young children, to the mother.  This has been referred to as the “tender years doctrine”. There has been a greater tendency in recent years by the courts of every state to consider the totality of circumstances and not make an award of child custody based upon the parent’s gender, especially in light of the current social reality that mothers are at work and away from the home as frequently as fathers.

Change of Custody

Child custody orders are by their very nature subject to judicial review; the court will revisit child custody issues if there has been a substantial change in the circumstances of either party.  A party’s remarriage after divorce and the ability to provide a stable environment may be considered by the court to be a change of circumstance.  If either parent makes derogatory remarks or otherwise disparages the other parent, the court may revisit custody and visitation issues.  Courts uniformly object to any conduct that will inhibit the development of love and affection for either parent.

Violation of Child Custody Orders

It is a crime in every state for a non-custodial parent to kidnap or refuse to return a child to the custodial parent. In most cases, such action is a felony. The local police, FBI or a private investigator may be of assistance. The National Center for Missing and Exploited Children (800-843-5678) and various agencies of the state government may be contacted for additional resources.

CHILD SUPPORT

Child Support is the fixed amount of money that one parent pays to the custodial parent to help cover the costs of raising their dependent child or children.  Ordinarily, the non-custodial parent will pay child support to the custodial parent since the custodial parent has assumed the additional financial burden involved in raising the child.

Adopted Children

Adopted children are treated in the same manner as biological children.

Step-Parents

Stepparents are not obligated to pay child support.

Guidelines for Child Support

While the general criteria for determining child support is the child’s needs and the parent’s ability to pay, under a federal law, all states must have guidelines by which the courts will determine child support.  Child support is generally determined by plugging income figures into a statutory formula and arriving at a recommended (guideline) amount per child.  Some states consider the income of the non-custodial parent only, while others take the income of both parents into account.

Special Circumstances

Courts usually have the latitude to consider any special circumstances that may justify modifying guideline child support. Some relevant factors include the value of the non-custodial parent’s assets, whether the custodial parent earns substantially more than the non-custodial parent, special emotional, physical, educational or other needs of the children, the standard of living enjoyed by the children during the course of the marriage, whether or not the non-custodial parent is intentionally limiting his/her income, and the length of time the children will be living with the non-custodial parent.

Modifying Child Support

A substantial change of circumstances of the paying parent, such as the loss of a job, illness or disability, may support a petition (application) to reduce child support payments. Child support obligations are not automatically reduced by a change in circumstance; a petition should be filed without delay- support can only be reduced by court order. Likewise, disability, unusual expense or other substantial change of circumstances of the child or custodial parent may support an application to increase support payments.

Additional Elements of Child Support

In addition to formula-based child support, one or both parents may be required to pay for such additional expenses as tuition, health insurance and/or life insurance.

Gifts

Gifts given to a child, even for necessaries, such as clothing, are ordinarily not credited against child support obligations.

Duration of Support

A parent’s child support obligation usually ends when the child reaches the age of majority, however, depending on state law and the terms of a Marital Settlement Agreement, the obligation can continue while the child is a full-time student at a recognized institution of higher learning or is disabled. The obligation to pay child support may end before the age of majority if the child becomes an emancipated minor, enters the military, takes a full-time permanent job, gets married or dies.

Deadbeat Dads and Moms

Congress has authorized the Internal Revenue Service to withhold paying income tax refunds to parents of children who are delinquent in payment of court-ordered support payments (deadbeat dads/moms).  A parent can request the court to order a spouse to post a bond to secure the payment of child support or that direct deduction be made from salary checks to pay support.

Automatic Wage Withholding

All child support orders written after December 31, 1993 are required to include a provision for an automatic deduction of child support from the wages of the responsible parent, however, this automatic wage deduction can be waived if the party’s so agree.

Federal Assistance in Collecting Child Support

The failure to pay support timely has reached epidemic proportions and has been addressed by the federal government.  Under the Federal Family Support Act, all states must have laws mandating that new and modified child support orders include a provision for automatic wage deductions.  This way, if child support payments are not made timely, the defaulting parent’s employer will be required to deduct money from the parent’s paycheck.  Federal law also requires that some or all of the following become part of state law to ensure that parents get child support payments:

  1. Placing liens on the delinquent parent’s property
  2. Utilizing state and federal tax refunds to discharge child support obligations
  3. Fining or jailing a defaulting spouse for contempt of court
  4. Attaching unemployment compensation benefits, veteran’s benefits or any other state and federal benefits that the defaulting parent may be receiving
  5. Garnishing the defaulting parents wages

Most states have a child support enforcement division.  This department will also assist in collecting payments from former spouses who have left the state, with or without an attorney’s assistance.

Bankruptcy

As a rule, past due child support (arrearages) are not dischargeable in a bankruptcy proceeding. Future child support obligations are never dischargeable in bankruptcy.

PATERNITY

The responsibility and obligation to pay child support arises not by virtue of the marital relationship, but rather by virtue of maternity or paternity of the child.  The maternity of the child is never an issue; occasionally, the paternity is.  Currently, genetic testing is available that will determine almost absolutely whether an individual is the father of the child.  In an action to determine paternity, the court will ordinarily order such testing and such testing is usually conclusive.

TAX ISSUES AND CHILD SUPPORT

Child support payments are not deductible; conversely, they are not includable in the income of the custodial parent.  IRS assumes that the custodial parent will claim the dependent child as an exemption.  Nevertheless, as part of the divorce negotiations, the parties can agree to share the exemption or award it to the parent with the higher income.  IRS form 8332 allows a custodial parent to transfer the exemption for the dependent child to the non-custodial parent.

GRANDPARENTS’ RIGHTS

All states have laws giving grandparents the right to spend time with their grandchildren.  If the custodial parent denies visitation, grandparents can petition the court for an order permitting visitation and for determination that visitation with the grandparents is in the child’s best interest.

CHILD ABUSE

If the custodial or non-custodial parent believes that a spouse is abusing the parties’ children, they should contact the police, initiate a criminal proceeding, request the court to restrict, eliminate or order supervised visitation, have the child examined by physician, request a physical and mental examination of the suspected abuser, and take photographs of the child to document suspected abuse or molestation. A parent who is aware of a spouse’s child abuse and takes no action to protect the child, may be held to be criminally liable.