If you’re separated or getting a divorce from your kid’s other parent, you probably have a ton of questions about custody and child support. In an ideal world, these are things you wouldn’t have to think about. But in the real world, parents split up, and rarely is it possible to simply go your separate ways. Lots of issues have to be addressed when you have kids in common, starting with where your child lives and how their expenses are paid. Custody doesn’t just cover where children go to bed at night and wake up in the morning.
There are two aspects of custody — physical custody and legal custody. Kids live with the parent who has physical custody and have “visitation” with the other parent (that is, unless both parents have shared physical custody), while legal custody is the right to make important decisions (about education, health care, religion, international travel, etc.) relating to a child. An order may be made for sole or joint custody and joint custody doesn’t necessarily mean a 50/50 split.
Shared legal custody means both parents have an equal say in major decisions affecting the child. “It’s not uncommon for parents to disagree; therefore it makes sense to have a way to resolve disputes without having to go to court, which can be expensive and not provide a quick solution When making any decision that affects a child, the court’s paramount consideration is the best interests of that child. When it comes to physical custody, this means the court is focused on who will provide a better home environment for the child, taking into account all relevant factors, such as comfort, safety and proximity to school and friends. Regarding legal custody, the court looks for who can be trusted to make the best decisions for the child. This means it’s crucial that parents realize they’re constantly being evaluated by the judge even when dealing with other issues, such as spousal support. “It’s extremely important not to be petty, emotional or overly adversarial” towards the other parent in any context. When determining what’s in the best interests of a child, certain factors shouldn’t be relevant, such as the gender, race, religion, sexual orientation, physical ability or financial status of the parent. “Many people think the courts favor mothers over fathers in custody determinations simply on the basis of their gender or because of the outdated ‘tender years doctrine.”
“The truth is that mothers often take on the primary caretaker role because of traditional gender expectations within the nuclear family. However, this is changing, and you will likely begin to see more and more fathers taking on a stronger caretaking role, especially after a divorce.” It can be really hard just to talk to someone who’s treated you badly or broken your heart — let alone cooperate, compromise, and co-parent with them. But you have to take the high road for your kid’s sake, as well as to present yourself in the best possible light to the courts. “Courts will also look to the relationship between the parents to determine who will be a better choice as the primary custodian. “If there is evidence of a parent’s intentional alienation from the other parent, refusal to communicate, interference with the other parent’s timeshare, or even a basic failure to cooperate, the courts can award custody to the other parent even if the alienating parent has been the primary caregiver.” Before you even set foot in a lawyer’s office, think about the type of custodial schedule you think will work best for your family. “Custody is a fact-specific determination, so be prepared to discuss many types of details with your lawyer.” “For example, does one parent work overnights or leave for work too early in the mornings to have weekday overnights? Does one parent travel frequently for work so that there will need to be make-up time provisions?” It sounds obvious, but it’s important to remember that child support is not about two dueling parents, mediator and divorce coach at Divorce Harmony. “Child support shouldn’t make the party giving or receiving it feels like they can use it for revenge or any other negative means; it should be looked at solely through the lens of what is necessary to help with the upkeep of the child. Also, the court will prioritize child support over spousal support. “Courts are more concerned with protecting children than compensating one parent”. “Children are seen as the vulnerable, innocent victims of a divorce; accordingly, the court will decide child support first and make that a priority over spousal support.”
This means non-custodial parents may not have a lot left for spousal support if they have a large child support obligation. You can’t change child support arrangements easily when the court makes an order for child support; it remains in place until the circumstances of either party change materially. So you should avoid the temptation to agree to something that’s less than ideal simply to bring court proceedings to an end. “That may provide the temporary pleasure of ending litigation sooner, but you won’t be able to change the arrangement unless something significant happens, such as one of the parents getting a new job, moving, getting remarried, etc. Child support laws and models vary from state to state, but it’s always based on the expense of raising a child, including basics such as food, clothing and shelter. “Sometimes, child support is a set amount of money that is paid each month, and then other expenses are paid directly on top of that, such as childcare and medical insurance.” The duration of child support also varies. Some states require child support until the child turns age 18; others, such as Utah, go as far as age 21. You don’t have to endure months (or years) of court proceedings to do what’s best for your kids. There are many alternatives for resolving parenting issues outside of court. “These days, more and more parents are choosing to sit down with a mediator to determine a parenting plan that works best for their family and to settle the matters of support. “In making decisions together in a cooperative fashion, parents set up a new paradigm of cooperative compromise and communication, which helps them to co-parent beyond the divorce or separation.” Whatever your circumstances are, one thing is clear: The less conflict during court proceedings (and in your life in general), the better. And that’s not just for your own sake and sanity: “Any opportunity to reduce or avoid conflict should be explored by parents because in the end, it is the level of conflict between their parents that is a predictor of problems for children later in life.” “Any steps that can be taken to avoid that conflict is truly what is in the best interests of the children.”
Divorce can be complicated and emotional, especially when children are involved. Every family is different when it comes to determining where the children should live and how their time is best split between parents. Nevertheless, courts typically require one parent to pay child support so that the parent with primary custody isn’t solely responsible for maintaining the children’s standard of living. Calculating each spouse’s share of the financial responsibility can be challenging, especially since the rules for determining child support are relatively fluid. Each state has its own guidelines that help its courts decide how child support is to be paid in a divorce. Courts can deviate from these guidelines when appropriate, and parents usually have the flexibility to come up with their own arrangements if the court agrees. Like any issue in divorce, there’s no one-size-fits-all solution for determining who will bear the brunt of financially supporting the children. Still, if you’re going through a divorce and have minor children, the following considerations may help frame the conversation.
• Child support is always modifiable: Child support calculations are often based on each parent’s income, the number of children, and the percentage of time each parent spends with the children. Courts may also consider spousal support as well as who pays for childcare, health insurance, education, and school expenses. No matter the formula, the focus of the calculation is on the need for support. Importantly, the court’s decision can be altered as circumstances change. For example, one parent may lose their job, become disabled, receive a meaningful inheritance or substantially increase their income. When necessary, divorced parents can return to court to modify their child support arrangement.
• Child support takes precedence over spousal support: In many cases, the spouse collecting spousal support also collects child support. However, it’s important to remember that child support usually takes precedence over spousal support. If, down the road, a court determines that child support payments can be reduced, spousal support will often also be reduced—this is one reason why one parent cannot unilaterally modify the agreed-upon arrangement.
• Child support payments have no positive or negative tax consequences: As a result of the Tax Cuts and Jobs Act of 2017, child support payments are considered outside the tax system for both the recipient and payer. Under the current tax code, the recipient is not taxed on child support collected, nor can the payer deduct the payments from his or her taxes.
On the other hand, a split-custody arrangement may have tax implications for one or both parents. Specifically, a child can only be claimed as a dependent by one parent, meaning only one parent can take the exemption on their taxes. Typically, the parent who has physical custody of the child for the largest portion of the year takes the exemption. However, the exemption can be traded back and forth between each parent from year-to-year by filing an additional form. Divorced parents can also divide the exemptions if they have multiple children. For either parent to claim the exemption, the child must live with one of the parents for more than half the year. Since dividing and trading exemptions can be thorny, it’s usually best to work with a tax professional for a reasonable solution for both parties. Child support can be a hot-button issue in a divorce. No matter the arrangement, it’s entirely possible for both parents to feel disadvantaged. Still, many issues can be worked through so long as the children’s best interests are the focus. If you’re preparing to go through a divorce or are already in the midst of one, it can be helpful to discuss the situation with your wealth advisor or another trusted financial professional to prepare for the complexities associated with paying or collecting child support.
Modifying Custody, Visitation and Child Support
It is not uncommon for circumstances to change once a divorce decree has been granted. What was once a workable solution to custody, visitation rights and child support, can sometimes no longer serve the parents or children involved. Is there anything that can be done about a divorce decree that is outdated? Can the terms of a divorce decree regarding children be changed?
What Terms Can be Modified?
• Custody (conservatorship)
• Terms of visitation
• Child support
A request to modify custody, visitation or child support must be filed in the court which last entered an order regarding the children. Check with the court that entered the decree to see what procedures or forms may be required for modification. Generally, any person who is affected by the court order can request a modification.
What are the Reasons (Grounds) that a Court will Modify Custody of a Child?
The grounds for a change of custody are complex and should be discussed with an attorney. Some of the factors the court considers are changes in circumstances of the parties of the child, an emergency concerning the child, if the proposed change would be positive improvement for the child, and if a change would be in the best interest of the child. If a Motion to Modify is filed, a child 12 years or older may file an affidavit with the court naming the parent with whom the child wishes to live. However, this choice is not binding on the court because the court must also consider technical grounds and the best interest of the child. If the person having custody of the child is under the last court order voluntarily leaves the child in the possession of another person for a period of more than 6 months and the court finds that this arrangement is in the best interest of the child, the court may modify custody upon the filing of the proper motion with the court.
How can I Modify Visitation with my Child?
The court must consider some of the following and may consider all of the following:
• A material and substantial change of circumstances since the last visitation order
• The last visitation order is unworkable
• The people with custody move outside of state or moved without giving proper notice to the person with visitation rights before the move.
• A person with visitation rights repeatedly failed to exercise visitation with the child.
States and counties vary as to the procedures to be followed for modification. The court that entered the decree for the divorce or child custody should be consulted as to their procedures and forms. While it is possible for individuals to do the paperwork and court appearances for their own modifications, be aware that courts have strict requirements for completion of the forms and time limits for filing the modification requests that may be difficult for an individual to comply with. If the modification is important, consulting an attorney could save future problems.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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