Some of the biggest concerns that parents going through a divorce have are about matters that affect the children. When we talk about children in a divorce, we are referring to children shared by the parties that are going through the divorce, whether they are biological or adopted children. The two major issues that come up in a divorce with children are child support and custody. These are incredibly important matters that may affect your relationship with your children for years to come. That’s why it’s so important to consult a knowledgeable divorce attorney if you are considering a divorce and you have children.
Some states are moving away from the language of “custody” and instead use language around parenting plans and/or parenting responsibility, though some states still use “custody.” There are two types of custody that parents can have, and they are generally referred to as physical and legal custody. Physical custody refers to who the child lives with most of the time. Typically, only one parent will have physical custody and the other parent will be given visitation. The amount of visitation can vary widely depending on the situation. For example, if one parent lives far away, the visitation will probably be less frequent but for longer periods of time. In some states judges are open to 50/50 physical custody arrangements if that is what the parties want and it practically feasible.
Legal custody refers to who has the right to make important decisions for the child. Decisions include what school the child should go to, medical care, what religion the child should be raised with, and other larger issues. Typically, both parents will retain legal custody of the child if they want it and are fit parents. However, sometimes only one parent will have legal custody if the judge believes that the parties are unable to work together to come to these decisions themselves.
Types of Child Custody
Legal: You and/or your ex-spouse have the right to make decisions about the welfare of your children, e.g., schooling, medical decisions, etc.
Physical: Where your children live day-to-day. A parent or parents with physical custody will have a child live with him or her. If a parent is granted sole physical custody, the other parent will, in most circumstances, be granted visitation or regular parenting time with their child or children.
The court prefers for parties to arrive at agreements on their own regarding custody arrangements. Some courts may even mandate mediation before they will allow the issue to go to trial. In most cases the court will approve any parenting plan that both parents have consented to. However, the judge may not approve it if they don’t believe it is in the “best interest of the child.” Best interest of the child is the overarching principle in most family court proceedings, and judges will generally make their rulings with that concept in mind.
All parents have a duty to financially support their children until they are 18 or 21, depending on the state. Every state has a formula that they use to come up with a presumptive amount of child support. They all take the parents’ income into account, but some states will consider the specific amount of time the child spends with each parent while others just focus on who has primary physical custody. This presumptive amount of child support is not set in stone, however. Other expenses such as childcare, tuition, health care expenses, and other variables may also be included in the calculations. One or both parents may also have other compelling reasons why the presumptive child support amount is not appropriate in the instant situation.
Once again, courts will usually approve of any agreement that the parties themselves have come to. Generally in child support matters the court is focused on making sure the child is provided for and does not have to be supported by the state. They will usually look more closely at situations where there is a chance of the child needing public benefits at some point. There also may be more concern at the other end of the financial spectrum. Most child support statutes will only apply up to a certain combined income. If the parties’ combined income is above that threshold, then the court will have to look at other factors – such as the child’s standard of living – to come up with a presumptive amount if the parties cannot agree to the proper amount of child support.
Child Custody and Support Center
Justia’s Child Custody and Support Center contains more detailed information on custody and support, including modification and enforcement.