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:
Here are key facts to remember about visitation:
Here are key facts to remember about child support:
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?
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).
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Resources & Tools
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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How to Win Child Custody
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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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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