 Child custody, support, and visitation issues are often the crux of the divorce litigation and settlement. In divorce cases involving family-owned businesses and high-value assets, the equitable distribution of those assets and debts often become very hotly contested. There may be business succession plans, trust distribution issues, education funds, and other support issues that are a necessary part of a fair child custody settlement, as well.
Child Custody
There are several different types of child custody. The most common are Primary Residential Custody ("custodial parent") and Secondary Residental Custody ("non-custodial parent"). If the parents cannot agree which parent will be the custodial parent, then a judge can appoint a child custody evaluator to determine what is in the best interests of the child. The cost of an evaluator is generally split between the two spouses.
The evaluator will be able to interview both parents, the children, and witness, can make visits to the parents' homes and may conduct psychological exams if needed. The purpose of all of this is to determine what is in the best interests of the children.
Many people believe that a mother will usually obtain Primary Residential Custody because, statistically speaking, there are more mothers in the population with primary residential custody of their children than the fathers. This belief is false. A court can just as well award custody to the father. The important thing to remember is that a court is focused on the best interests of the children. If those interests are served by being with the father, the court will award custody as such.
Child Support
Child support consists of financial assistance in order to support a child until the age of majority (18). It is required by law and cannot be waived. Child support should usually start when the spouses separate and even before a divorce action is filed with the court. In the case where child support is not being paid but has already been established, a court can order back-pay of the support.
Determing Child Support Amount
Child support is determined by using the statutory guidelines. These guidelines are in place to ensure that parents across the state are paying the same amount. In the past, there were vast differences in the amount ordered to be paid depending on which judge and county the divorce was brought. However, the guidelines to provide a way for judges to deviate from the amount.
In order to determine the amount of child support using the guildelines, the court begins by determine what is the net combined monthly income of the parents and their contribution to that net income. Net income is the income a person "takes home" after deductions and taxes. As an example, if the father has a net monthly income of $2,000 and the mother has a net monthly income of $2,500, the combined net monthly income is $4,500. The father's percentage contribution to the net monthly income is about 45%. The mother's contribution to the net monthly income is about 55%.
Once the net monthly income has been determined the contribution of each parent to the net monthly income, the child support guidelines can be used to determine the total amount of child support due. Using our example, if there are 2 children, the amount of child support due would be $1,423 a month. The father would have to contribute $640.35 and the mother could have to contribute $782.65. If the father had primary residential custody, then the mother would pay that money to the father.
Child Support is often collected by way of a central depository. The courts charge a small fee for this service.
The "Unemployed" Spouse
Simply because a spouse is unemployed does not mean that they do not have to pay child support. Many of our clients come to us complaining that the other parent has stopped working and they probably won't be able to get child support. This is not always true.
A court can impute income to an unemployed spouse. Imputation of income basically makes the unemployed spouse have some sort of income on paper even if they have no income in real life. A spouse can also impute income to an under-employed spouse, namely someone who is making less than they should.
Imputing income is very important in child support cases. The policy is simple: a parent should not get away without having to pay child support if they can make more money than they do but refuse to do so.
Health Insurance
The parent that provides the child's health insurance will receive contribution from the other parents at the same percentage as child support as determined by the child support guidelines. In the above example, if the mother pays $200 a month for the children's health insurance, her child support will be increased by $55 per month to cover health insurance.
Daycare
There are many cases where the parent that has primary residential custody has to pay daycare expenses. It is only fair that the non-custodial parent help with these expenses. However, although health insurance contribution is determined using the share of net income, daycare expenses are not.
The formula for daycare expenses is somewhat difference. It is equal to 75% of the monthly daycare expense multiplied by the non-custodial parent's percentage share of child support.
If a daycare is terminated, we can file a petition to modify child support to stop daycare payments to the custodial parent.
Visitation
Visitation involves determining when and how a non-custodial parent can visit the children of the marriage. There are various types of visitation, including reasonable visitation, specified visitation, supervised visitation, or even no visitation.
Visitation is determined by the court and many times parents can agree to a visitation schedule to be approved by the court. For example, parents can agree to more visitation than is customarily granted. |
