Child Custody

February 19, 2009
By Lauren Williams

It is estimated that parents of more than one million children in the United States get divorced every year. In addition, children of parents who are unmarried, already divorced or deceased increases the number of child custody cases brought before courts throughout this country.

As with every other area of the law, each state has its own laws dealing with child custody issues. This section will deal with child custody in general terms. If you have a specific question regarding child custody, please contact an attorney in your area.

Best Interests of the Child

Most jurisdictions refer to the “best interests” of the child and this is a bit of an overstatement. Obviously, the interest of a child are taken into consideration, but so too are the parents interest in raising their child.

Types of Custody

Child custody refers, in general, to the custodial arrangement between the parents post-divorce. Courts can award sole custody or joint custody. This should be differentiated from legal custody and physical custody. Legal custody generally refers to which parent or parents are authorized to make decisions regarding the child’s care and physical custody in which the child’s living arrangements are determined.

Most courts will begin making child custody decisions pending divorce litigation and post-divorce. The orders may be temporary, as in the case of pending litigation or final, like post-divorce orders. Often, if there is a change in circumstances, either parent may go back to court to ask for a new court order if the changes affect the child’s welfare or safety.

Important Factors

Factors included in determining child custody usually include claims made by each parent regarding custody, which parent has been the primary caretaker of the child, the character and conduct of the parents and their relationship with the child, any agreement between the parents pre-divorce which may be contained in a separation agreement, and the child’s preference. Other factors may include a finding that neither parent is suitable as the child’s custodian and visitation rights of the non-custodial parent.

Joint Custody

In addition, in many jurisdictions, the new norm has been to award joint custody. Joint custody is thought to allow both parents and the child to enjoy the benefits of childrearing and to preserve contact between both parents and the child. The psychological benefits for the parents and the child are evident. From a practical standpoint, in a joint custody arrangement it isn’t just one parent’s responsibility to raise the child his or her self, including arranging for daycare, work concerns and time for other activities. Also, joint custody may force both parents to work together to raise the child and eliminate some of the acrimony that may be felt by either or both parties post-divorce.

Sole Custody

If the parents are so argumentative or hostile towards each other that a joint custody arrangement may actually be detrimental to the child’s well being, then the court may look to award sole custody. Factors determining joint custody can include the parents’ fitness, agreement or disagreement on joint custody, the parents’ ability to communicate and to cooperate when it comes to the child’s welfare, the geographical proximity of each parent and the possible harm to the child’s psychological or emotional development.
Other Issues

One obvious problem with a joint custody arrangement is when one parent decides to move. When this occurs, the court may then grant sole custody to one of the parents. Another problem is when a disagreement occurs between the parents that they just cannot agree on. In those instances, the court may wait until the parents finally reach an agreement, the court may decide the issue, or the court may side with the primary physical custodian of the child.

To learn more about the child custody laws of your state and to have specific questions answered, please contact an attorney in your area.

Child Support

January 17, 2009
By Lauren Williams

The courts in the various states can order child support to be paid both while a divorce action is pending and after a divorce has been granted. In most cases, both parents will be equally responsible for supporting their children, although the award of child support often is not enough to fully provide for the child or children. The expenses of feeding, clothing and educating the child probably will not be covered by the award of child support, and the supporting parent often is the one who must make up the difference.

Father’s Obligations

The father is the parent that most often is responsible for paying child support to the custodial wife to support children of the marriage. The award of child support requires either paternity, that the child be the natural child of the father, or adoption, that the father adopted the child.

Changes

In most situations, a child support order can be changed to some degree after the initial order has been issued. A change can usually be requested by a parent when relevant circumstances change.

Payments

Child support orders often direct payment from the non-custodial parent to the custodial parent at regular intervals. In many states the payments are made through the court in order to allow the state to track and confirm whether the payments are being made. Usually, for example, if a father is paying child support to the child’s mother, the payment would be made monthly on a fixed date. The custodial parent then has the responsibility to care for the minor children with this payment.

When Support Ends

The length of time of child support payments differ state to state. That said, most states will insure that payments last until the child reaches the age of majority, which usually is between 18 and 21. However, if a child is still completing his or her education, the support payments may continue until the child graduates or until such time that the court declares the child to be an adult. For example, if a child is in college and drops out to work full-time and is older than 18, then the child will not need to be supported any longer and the child support obligation may end.

Exceptions

An adult child may require that child support be paid if the adult child is mentally or physically incapable of supporting his or her self. Conversely, a minor child that enters into marriage or otherwise becomes self-supporting may result in the child support being terminated.

Insurance

Often part of the divorce or separation agreement will include a clause requiring the non-custodial parent to maintain health and life insurance for the minor children. Life insurance provisions vary from state to state so inquire with your particular state’s law to determine what the law is regarding life insurance.

Other Considerations

Most states, in general terms, will take into account the child’s needs and the financial resources of both parents, the standard of living enjoyed by the child during marriage and the child’s educational and medical needs in making a decision on awarding child support. Some states will have statutory norms that are easily calculable, and in other courts will have some leeway in determining the amount.

Effect of Marriage to Another

If a non-custodial parent remarries, in some jurisdictions, the second spouse’s income may be determined to support the non-custodial parent, thus making it possible for the court to order a higher child support amount to support his or her children.

Laws Vary From State-to-State

The issue of child support is obviously very important to any divorce action. To learn about the laws and standards in your state, please contact an attorney in your state.