Custody, Visitation and Child Support
Custody, visitation and child support can be three explosive issues in a divorce. Very few aspects of a divorce are more damaging to everyone involved than a custody fight that leaves children caught in a crossfire between battling parents fighting for control.

Each jurisdiction has its own protocols about custody and different method of calculating child support. Parents generally work out visitation routines as part of a parenting plan.

Custody refers to the court-approved living arrangements of minor children, the legal supervision and protection of the child until he or she reached a majority, however that term is defined in a given jurisdiction. Custody is a coin with two sides -- legal and physical, and it is always subject to modification as circumstances change. Joint custody, which is also known as shared custody, has two elements: joint legal custody, which refers to equal rights and responsibilities to make major decisions for the children, and joint physical custody, which refers to the parents’ participation in the "day-to-day upbringing of the child." More than 30 states now have statutes specifically authorizing joint custody awards, and most states now hold that a court’s authority to award joint custody does not depend upon the parties that request it. In awarding joint custody, the single most important consideration is the ability of the parents to cooperate. In fact, in cases where both parties can cooperate for the benefit of the child, joint legal custody awards are generally upheld even when one or both parents may have sought sole custody. Joint legal custody to both parents does not preclude sole physical custody to one parent. At the least, the parent who has physical custody must have a suitable place to live, provide adequate supervision when absent, maintain reasonable discipline, and nurture the child with affection.

Visitation describes designated times -- and sometimes conditions -- under which the noncustodial parent sees his or her children apart from the custodial parent. Visitation refers to access -- a particular party to particular children, at a set time and date, for a fixed period. Normally the term applies to parents, but grandparents may have visitation rights.

Child support describes the payments made by the noncustodial parent to the custodial parent for the support of children. Many jurisdictions have a complicated formula for calculating support, and most also have websites that provide a general estimate of child support that a noncustodial parent pays.

The chart support method, used in some legal jurisdictions to establish a base for support, takes into account the gross income of both parents, less special adjustments (such as support paid for children of previous marriage). The chart support method uses the net monthly income of the noncustodial parent as the basis of support.


Here are key facts to remember about custody:
  • Divorce splits the bond of husband and wife, and custody splits the responsibilities of parenting, often between the custodial and noncustodial parent (very often, respectively, the mother and the father).
  • The court makes the final decision, but when possible, generally tries to give both parents shared legal custody of the children.
  • In making decisions about custody, visitation and child support, courts in all jurisdictions are guided by the phrase the best interests of the child -- which means in practice, what a judge says it means.
  • When custody of the children is contested, some states allow the judge to consider the child’s wishes, according to his or her age.
  • In a situation involving more than one child, experts feel that it is usually best to keep all siblings together with the custodial parent.
  • A custody dispute is more likely to be more difficult than the divorce itself, because the bond of parenting is typically stronger than that of marriage and because every family is unique, with very distinctive needs and desires that must be kept at the forefront.

Here are key facts to remember about visitation:
  • When one parent is awarded custody of the child, the other parent is granted the right of visitation. Visitation plays a role in almost all custody arrangements unless deemed not to be in the best interests of the child.
  • The guidelines for visitation should be clear to prevent any future misunderstandings. It is the responsibility of the parents to arrange for a reasonable schedule of visitation. Failure to do so in a timely manner forces the court to assume complete control, which judges do not want to do. This discussion should be approached by both parents openly, in order to thoroughly address the central issues of when, where, and for how long.
  • A child has a right to maintain an ongoing relationship with both parents. Once arrangements have been made, they should not be deliberately interfered with or ignored.
  • It is the responsibility of the custodial parent to prepare the child for the first visitation. The visits are normally unsupervised and occur at the non-custodial parent’s residence.
  • Visitation routines after the final divorce typically reflect the pre-divorce relationship. However, the temporary visitation arrangements made before the final divorce are not always the guidelines followed after the divorce.

Here are key facts to remember about child support:
  • Divorce never ends the legal obligation for support. Each parent still retains a legal responsibility to provide adequate support until the child reaches the age of emancipation. The legal duties of support are based upon the needs of the child in conjunction with the abilities of the parents as dictated by income and assets owned.
  • Child support is subject to modification, depending upon the changing circumstances of the reconstituted family.
  • The courts generally focus on income after taxes, and support is rarely the sole responsibility of the non-custodial parent, because the principal job of the custodial parent is to provide a sufficient household. Child support is a combined effort to obtain a fair distribution of financial responsibility, so the child may live -- at least materially -- in a manner similar to which he or she enjoyed before the divorce. Depending on the jurisdiction, there are many different variables to be taken into consideration.
  • Courts approve support arrangements they deem "fair and reasonable," and the court has the authority to deviate from the formula as it deems necessary. Courts throw away the chart when the judge deems deviation from it is in the best interest of the child.
  • All questions involving custody, visitation or child support turn on a hinge called the best interests of the child. In the case of a dispute or a contest about custody, visitation or child support, the court will have the final say in all matters. Thus, again, an out of court agreement is often the best measure to guard against the unexpected. The court makes the final decision. The judge assumes full responsibility in order to permanently safeguard the child against feelings of guilt. And all judges are very pleased when competent parents make reasonable and fair agreements about custody, visitation or child support. Custody of the children is not the reward for winning a battle, nor is it the end of contact with the former spouse. In her book Mom’s House, Dad’s House, Isolina Ricci quotes a recently divorced mother who discovered that divorce is not the end. "The greatest disappointment of the first months of divorce was my realization that -- like or not -- I had to relate to the children’s father. I had wanted him out of my life completely. I wanted never to see him or hear his voice again. But when you have children together, that’s not how it works."

Common Questions and Answers

Q. What should divorcing parents remember about custody, visitation and child support?

A. 1) The court has the final say and 2) the court will agree to what parents can agree to when the solution is fair and reasonable -- and in the best interests of the child.

Q. Can the custodial parent agree to waive child support if the other parent agrees to waive visitation?

A. No.

Q. What custody arrangement is best?

A. The best arrangement is the one that works. Each family is different in its needs and wants, and each should seek to minimize the trauma on the children if the divorce is an inevitability. In negotiating custody arrangements, parents must subordinate their own desires.

In both physical and legal custody, judges are guided by the gold standard: the best interest of the child. Like a refrain in a Greek chorus, this phrase appears again and again in the literature of custody cases. The age of a child, each parent’s living arrangements, a parent’s willingness to support the other’s relationship with a child, a parent’s relationship with the children before the divorce, a child’s preference (in some jurisdictions) -- all are considered in determining the custody arrangements that are in his or her best interest.

Q. Why are custody battles so terribly destructive?

A. Custody battles between warring spouses, in addition to being very expensive, make for lasting bitterness and hatred that can be traumatic for both the parents and the children. Most parents realize that these outcomes make the damage of a failed marriage even worse and visit even more sadness and sorrow upon the most innocent victims of a divorce -- the children.

Q. What is the general rule about custody?

A. In general, all other things being equal, a mother will get at least physical custody of small children. In general, courts seek to minimize the disruption to the child. In practice, this means that the child very often will end up with the mother in the family home (and the father, who once lived there, will now become an occasional visitor).



Useful Online Tools
  • Custody JunctionTM - Easily schedule, track and monitor current and future custody, visitation, and support arrangements.
  • Online Parenting Plans - Our Online Parenting Plan Softare will allow you to create and execute your very own parenting plan.
  • Mandatory Parenting Class - This service if for you, whether you are court mandated or if you simply want the best, up to date information about how to keep your kids healthy and safe throughout the divorce process.

Suggested Reading
How to Win Child Custody How to Win Child Custody
This is not your basic child custody book like most you will find in a bookstore. This book is for people who are in the middle of a custody dispute or feel as though there is a possibility of one in the future. This is a resource for those parents who are fighting for their rights and/or custody of their children.

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THE DON’Ts – Good parenting through divorce has a dimension that is negatively defined. Good divorced parents do not speak badly or make accusations about the other parent in front of a child. They do not force a child to choose sides, or use a child as a messenger or go-between, or pump a child for information about the other parent, or argue or discuss child support issues in front of a child. In short, they do not use a child as a pawn to hurt the other parent.
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Featured Download Parent's Ability and Willingness to Cooperate: The Friendly Parent Doctrine, As a Most Important Factor in Recent Child Custody Cases

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