Custody, visitation and support are very confusing and stressful to negotiate. If you and your soon-to-be ex can't come to an agreement on your own or with the help of attorneys or mediators, the terms of your divorce could be resolved by a family court judge.
The terms will be legally enforceable as specified in the Final Judgement of Divorce, at the conclusion of the trial. Speak with a local licensed attorney for advice relevant to your circumstances and state statutes.
What generally happens if the court has to decide?
Whenever a court determines custody of a child, it's done in, "the best interest of the child". It is considered based on many factors to include, but not limited to, what both parents want, what the child wants, the relationships of parents and the child, relationships of other members and the child in each home, the child's acclimation with his current school, home, activities and lifestyle. The court will consider the impact of the custody arrangement on all parties affected.
A few common questions...
Will the court consider my spouse's infidelity when rendering a decision?
While certain aspects of infidelity may affect the judge's opinion that may affect his ruling, generally the court is only interested in the child's well-being. Primarily, the judge will consider each parent's ability to provide financial support and a stable environment for the child.
Will the court consider my spouses decision to live with his new same-sex partner?
The courts will be more interested in your child's best interest based on an on-going relationship with both parents as long as each parent provides a stable environment and good relationship with the child, regardless of the parent's sexual preference or life partner. Some issues the judge will consider is if there is someone in the household who is unstable or has a bad relationship with your child regardless if that person is a friend, life partner, girlfriend/boyfriend or otherwise. Just because you feel the relationship is bad for your child, do not assume the courts will agree.
However, the choice for either spouse to live with someone may affect support.
How do I know how much child support I will get?
First, physical and legal custody will need to be established. Usually, the non-custodial parent pays support to the custodial parent. If it's determined that you will be the physical custodial parent of the minor child, your state usually has an online child support calculator where you can input your basic information to get an idea of expected support. It's best for you and your spouse to agree upon an amount yourselves since you both know your circumstances and children better than anyone else.
However, if you can't agree and legal aid or mediation fail (or not chosen as part of your divorce process), then the family court will consider your family financial circumstances, income from both parents, financial needs, standard of living of each child before the divorce and each parent's capability to pay. They will also factor in the number of children that need support. If you and your spouse are sharing physical custody, time spent with each parent may be considered.
While these are all common considerations, each state will use its own statutes, formula and facts to base child support payments. Seek the advice of a local attorney who can provide legal advice based on your specific circumstances.
How long will the child support last?
In most states, child support is for minor children and lasts until the child reaches 18. Some states extend the support until the child is 21. In some circumstances the support may also continue while the child is in college.
The primary exception to support only minor children, other than that noted above, is when the child is disabled. Specific rules and guidelines vary from state-to-state regarding support of these children and support beyond the typical age limits. You should consult an attorney in your state for specific clarification regarding your state laws and child's circumstances.
I move a lot for work, but my spouse no longer wants to move. I want to take my child with me. My friend said I should seek sole physical custody, but I'm not sure what that means.
* See below for the definition of sole physical custody and other terms commonly used in child custody agreements
Sole physical custody generally provides parents an advantage in making decisions regarding a move. It gives one parent the right to have sole access, authority and control of the minor child. Each state and individual's circumstances vary.
Speak with your attorney immediately to discuss your options or research your state's statutes and regulations. Determine if fighting for sole physical custody, if you and your spouse fail to reach an agreement outside of court, is worth it based on your particular situation, current stage of your divorce and potential costs associated with doing so. If your case goes before a judge, he/she will rule in the best interest of the child.
How can we decide custody without the court being involved?
Each state's statues vary regarding child custody. It is always best to refer to a local attorney for advice if you do not understand how the laws in your state affect you and your case.
This article will help you with a general understanding of the process and basic terms. But it is not state specific like that of child custody laws. Use it only as a preliminary resource to your research or legal consultation.
It's easiest on your family and pocketbook to come to an agreement with your spouse regarding custody without requiring the court to decide.
Below is a suggestion to help you save time, money and frustration in determining custody, visitation and support:
- Understand the meaning of the terms that may be part of your Child Custody Agreement. They are listed below under Terms used in your Child Custody Agreement.
- If you think your spouse will be uncooperative, you may want to consult an attorney first before making decisions with your spouse (your attorney may have a questionnaire related to these issues that you and your spouse could complete together - this way you will not need to go back to negotiating if you forgot any aspect of the potential settlement). If you do not have an attorney, go to your state's courts website to determine if they have information or resources that may help. In some cases, your local circuit court building may have a law library where you can research state laws. Contact the court clerk to determine if is available to the general public or if they are aware of a public law library near you. Also, the public library, a state-funded law school or state capital building may have legal resources or provide information where you can locate current, state specific information/law books that may provide some clarity regarding your legal rights.
- Discuss the options with your spouse to agree upon regarding the above issues (you may not make all of the decisions in the first meeting - these are major decisions that affect you, your child and your spouse - think carefully before you agree and make sure you understand the laws of your state. If you have an attorney, clarify the terms of your agreement since they have lasting legal consequences and discuss adding the opportunity for future modifications to your agreement).
- Determine any issues that have not been resolved and discuss them with your spouse to avoid costly legal negotiations. Come to an agreement with your spouse (soon to be co-parent) and bring your agreement to your divorce attorney (when applicable) or get the appropriate forms from your state's courts website or county website. You can also contact your local circuit court clerk (family or civil division) for information related to the appropriate forms.
- If you and your spouse are unable to come to an agreement, an attorney can help with your negotiations (which can be costly) or may be able to recommend a mediation service to assist you in coming to a mutual agreement.
Terms used in your Child Custody Agreement
Child Custody Agreement
This is the part of your divorce settlement agreement that includes the relevant information regarding child custody, the primary custodian, schedule of days, times the child is with each parent, holiday schedule the child is with each parent, special considerations (if any) related to the child-parent(s)-circumstances, visitation schedule and limits/requirements, child support amount (specifies any changes based on ages of child, parents specific financial circumstances or other factors that may affect support over a specified period of time). It will include pertinent information related to the child's care, insurance, expenses, health expenses, education and/or otherwise. There may be additional information related to your specific circumstances on the child custody agreement/schedule. Consult your attorney or state's courts website for more information.
Visitation Schedule, Parenting Time or Child Custody Schedule
Refers to the parenting schedule/agreement that specifies the days, times and frequency the child will be with each parent.
Child Custody
Legal term used to describe guardianship or relationship (legal or actual) between the person charged with the primary care of the minor child. It consists of the legal and/or physical custody of the child that is the determination of the right to decide for the minor child and physical custody which includes the right and duty of the house, provisions and care of the child specific to the home care of the child.
Parents can have any combination as agreed upon with the following: Physical Custody and Legal Custody. e.g. One parent may have Sole Physical Custody, but both parents have Shared Legal Custody or vice versa.
Physical Custodian
Refers to the parent the child resides with following a divorce. This parent is the decision maker over daily care and control of the child. Primary custody is governed by state statues and varies in each state.
- Sole Physical Custody: Term used to describe one parent's right to have sole access, authority and control of the minor child. It means the parent has the right to have the child live with him/her and may also move away with the child. The burden of proof would need to be presented to the court by the other parent as to why it would not be in the child's best interest to do so. If the parents have shared custody, the burden of proof would be on the parent who wishes to move.
- Joint or Shared Physical Custody: Terms used to describe parents of minor children who have equal access, authority and control for their minor child, usually established by two married parents seeking a divorce. When parents have joint physical custody, it means the child lives part of the time with one parent and part of the time with the other. It may not always mean it is equal time, but an agreed upon time with each parent based on the child's best interest.
Legal Custodian
Refers to the custodial parent who makes decisions for the welfare of the child. These decisions may be regarding education, care, health, etc.
- Sole Legal Custodian: Term used to describe the parent who can make unilateral decisions regarding the welfare of the child such as education, care, health, etc.
- Joint Legal Custodians: Term used to describe parents with equal interests and responsibility to agree upon the decisions for the best interest of the child regarding education, care, health, etc.
Visitation
Refers to time a parent may spend with his/her child.
Supervised visitation
Refers to time a parent may spend with his/her child only with direct specified supervision by a court appointed individual such as a parent, family member or social worker. Occasionally, the court may utilize a supervised visitation provider service. Supervised visitation is usually established to ensure the parental relationship while protecting the child from potentially dangerous situations.
Parental Agreement
This is the established agreement decided by a court when the parents are unable to come to an agreement independently, with their attorney(s), arbitrator or mediator.
Mediation Service
A service that provides a mediator, an unbiased third party trained to work with both spouses in a divorce to effectively agree upon issues formerly unresolved. It usually costs less than utilizing attorneys to negotiate on the behalf of each spouse.
Child Support
Court ordered payments made by the parent without physical custody to provide financial support for his/her child. It is an amount that can either be decided by the parents, according to state guidelines or by the court who would render an amount based on the family financial circumstances, both parent's income and ability to pay, number of children, each child's needs and standard of living before the divorce. These needs may include, but are not limited to: basic necessities, education, clothing, medical expenses, entertainment, activities or travel.
If both parents are sharing physical custody, the court may also consider the time by either parent spent with each child.
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