Divorce and Remarriage

Divorce and Children

Figuring out how much child support is necessary and understanding ways to ensure its collection are key elements in your divorce.

In the days prior to women entering the work force, custody almost always went to the mother. Today men are seeking custody more frequently, and joint custody arrangements are becoming more common. Women typically retain some custody in most cases.

The parent most likely to receive custody is the one that is most involved with the day-to-day life of the child (transporting the child to/from school, bathing and clothing the child, attending events with the child, etc.). In this day of two-earner families, this is not always so clear.

When deciding on physical custody, the court will generally not look at who is in a better position financially to provide for the child (that's what child support payments are for). Some factors a court looks for include:

  • evidence of substance abuse by a parent;
  • history of one parent's physical or sexual abuse of the children;
  • abandonment of the family;
  • time spent away from home on business;
  • which home would be more stable for the children; and,
  • in some cases, the results of psychological testing of the parents and children by the court.

Judges are given wide latitude to determine what is best for the child. In some states, the children have their own attorneys present at the trial or hearing.

There are two types of custody to be decided on by the courts, legal custody and physical custody. Legal custody is the right and responsibility of a parent to decide on such things as medical, educational, and religious issues. Physical custody of a child is the actual sheltering and day-to-day parenting. The decision on who gets physical custody does not necessarily determine who gets legal custody.

Some parents who live close to each other and have a very good working relationship have been successful in joint physical custody (the child lives part of the time with one parent and the rest of the time with the other). For the balance of this discussion, the terms custodial and non-custodial parent will pertain to physical custody since it is very common for joint legal custody to be awarded.

Before you get caught up in a big legal battle over physical custody, be aware that you will probably be given visitation rights if the court deems your children to be safe with you. If, on the other hand, you are truly concerned with the welfare of your child under the care of your ex-spouse, consider a fight for custody. Discuss this matter with your attorney.

Try to devise your own practical, clearly described custody arrangements. It is best to work as a team with your ex-spouse in matters of child welfare. If your child would be better served under a different custody arrangement, change it. Remember, your child's welfare is your most important concern.

Visitation

If physical custody is not shared between parents, the non-custodial parent will most likely get visitation rights. The courts will usually encourage liberal visitation where the non-custodial parent can be alone with the child without the custodial parent present. The only exception (called restricted visitation) occurs if the courts feel that the child's safety would be in jeopardy (child abuse, a substance abuse problem of the non-custodial parent, etc.). Although parents may choose to be less structured regarding visitation if they have a friendly relationship (example: "I have some free time on Tuesday, can I take Junior to the park?"), the rules of visitation are usually spelled out in the divorce papers filed with the court.

Child Support

The courts will most likely require the non-custodial parent to pay some form of child support. All states have child support guidelines. The guidelines help determine the amount that has to be paid. You and your spouse can decide on a different amount as long as the court agrees. Rules vary from state to state, but it is usually required until a child turns 18 years old. Some states require that child support be paid up to age 21 (which usually brings college costs into the equation).

Collecting Delinquent Amounts

If you are having trouble collecting child support, there is help available. More and more states are enacting tough programs that can help collect delinquent child support. These programs include wage garnishment, property liens, and withholding of income tax refunds. Child support and spousal support obligations cannot be discharged in bankruptcy.

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