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Parents who are contemplating divorce often have many concerns about who will have custody of the children and how the costs of raising them will be divided. Even when a divorce is “friendly,” each parent is advised to seek out his or her own lawyer to be sure their rights and those of the children are protected.
Traditionally, individual states have regulated family law matters, such as marriage, divorce, or child custody. Over the past two decades, however, there has been a trend for states to adopt uniform laws governing child custody and support to reduce the amount of variance from state to state. While the following information offers an overview of child custody and support guidelines, a lawyer can explain the specific laws of your state.
When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the "non-custodial" parent (the parent with whom the child does not live) to pay a certain portion of his or her income as child support. This is not the only scenario in which child support might arise. Less frequently, when neither parent has custody, the court may order them to pay child support to a third party who cares for their child.
No matter what situation gives rise to the need for child support, it might help to think of the legal right to child support as being possessed by a child (which it technically is), for his or her proper care and upbringing, regardless of who actually receives child support payments.
Because in the United States nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents.
Frequently, the agency and court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck.
If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.
Child support orders are issued by the family court, which bases the amount of the support on the state child support guidelines. These guidelines establish the amount of support that must be paid, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children.
The court can deviate from the guidelines if there are significant reasons for doing so. The fact that the custodial parent has a high income does not itself justify deviation from the guidelines, because under the law children have the right to benefit from both parents' incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income, or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.
In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's "paternity" of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the "putative" (or alleged) father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue a child support order in a manner similar to that in a divorce situation.
When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support.
This Act provides the mechanisms by which a support order issued in one state can by enforced by the courts of another state.
If you are facing a potential child support issue or dispute, whether due to divorce or as a single parent, a family law lawyer can help by fairly and zealously representing either side in a child support proceeding. A family law lawyer will work to obtain the best possible result in the entry of a child support order, enforcement of an existing order, or in establishing or disproving paternity. Click here to find an experienced family law attorney in your area.
When parents divorce, the divorce decree will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children). Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.
In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.
Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent.
Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.
Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.
When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.
In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine. Often, the main factor is which parent has been the child's "primary caretaker" (more on this below). If the children are old enough, the courts will take their preference into account in making a custody decision.
Although the "best interest" standard does vary from state to state, some factors are common in the best interest analysis used by the individual states, including:
In addition to the above factors, some states' family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage. In custody cases, the "primary caretaker" factor became important as psychologists began to stress the importance of the bond between a child and his or her primary caretaker. This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship after divorce, as being vital to the child's psychological stability.
Depending on the state where the custody determination is being made, other factors may be considered as important when determining primary caretaker status. Even such things as exposure to second-hand smoke and volunteerism in the child's school have been considered in a primary caretaker analysis. While, in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers. When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the "best interest" standard in determining custody.