Child Custody Information

In determining Child Custody in a divorce proceeding, the most important question asked by the courts is "what is in the best interest of the child?" This question focuses the courts' attention on the custody and care of the child and away from the desire and wishes of the two competing (and often hostile) parental interests. Although there are no uniform standards among the states as to what factors make up the "best interests of the child," the child's ultimate safety and well-being are of the greatest concern.

Principles Used to Determine the "Best Interest of the Child"
Courts are to assume the following in making a determination on the best interest of the child:
(1) It is important to maintain stability through family integrity and keeping the child in his or her home;
(2) It is important to protect the health and safety of the child;
(3) It is important to make a timely decision that will result in permanency and stability;
(4) It is important when a child is taken from his or her home that the child be given care, treatment, and guidance that will assist the child in developing into a self-sufficient adult.

Factors Used in Determining the Best Interest of the Child
Given the assumptions stated above, the Courts then consider the following factors:
(1) The ties between the child and his or her parents, siblings and other family members;
(2) The ability of the parents to provide food, shelter, medical care and other necessities for the child;
(3) The mental and physical health needs of the child;
(4) The mental and physical health of the parents;
(5) Whether there is a history of domestic violence in the home; and
(6) In some states the child's wishes, but most of these states require the child to have reached a certain age of maturity.

What is Child Support and How is it Determined?

In a divorce proceeding where minor children are involved, the Court may order (and usually does) one of the parents to pay to the other parent funds to be used to support their children. These funds are commonly referred to as Child Support. Although the Court will take into consideration an agreement between the parties for child support, any such agreement will be nullified by the Court if it does not provide for the proper care and maintenance of the children.

Depending upon the state, some of the factors considered by courts in deciding whether (and how much) child support is to be paid by one spouse to the other include:
(1) the ages of the children;
(2) a child's extraordinary medical costs or needs that are not paid by insurance;
(3) the children's educational costs;
(4) the children's day care costs;
(5) the amount of shared physical custody, including extended visitation;
(6) a party's other support obligations to another household;
(7) income that should be imputed to a party because of voluntary "suppression" of income (i.e. when one party won't get a job just to avoid paying child support);
(8) in-kind income for the self-employed, such as reimbursed meals or a company car;
(9) other support a party is providing or will be providing, such as payment of a mortgage;
(10) a party's own extraordinary needs, such as medical expenses;
(11) extreme economic circumstances, such as one party having a ton of debt or making a ton of money;
(12) the history of the family's spending for their children;
(13) cost of living factors in the community of each party;
(14) in-kind contributions of either party;
(15) the income of the custodial parent;
(16) the cost of accident and illness insurance coverage for the dependent children; and
(17) extraordinary travel expenses to exercise visitation or shared physical custody.

Modification of Child Support
In most states, an order for child support may be modified by showing that a substantial change in the income and financial status of either former spouse has occurred. Also, modification may be ordered when the needs of the children have substantially changed and the best interests of the child would be served by the modification.

Enforcing a Child Support Order
Failure to make the required child support payments can result in a continuing writ of garnishment against the income of the delinquent former spouse. In many states, the Court may also suspend the delinquent spouse's professional and driver's licenses or have the delinquent spouse thrown in jail for failing to comply with a Court Order (i.e. contempt of court).

Given the complexities that go along with divorces involving children, you are best off hiring an attorney to handle such a divorce. As a practical matter, it is much easier to get what you want in the original child support order than to try to modify the order later.

Child Support: He's Hiding Assets

Two weeks ago one of my clients came in with a child support problem. She and her ex-husband divorced four years ago and had two minor children (10 and 12 years old). My client was awarded custody of the children and her ex-husband was ordered to pay child support. The family had substantial assets and my client felt at the time that the child support ordered by the court would be enough to cover the children's needs in the future.

During the past four years my client's ex-husband has been very successful. Prior to the divorce he had made a number of real estate purchases which skyrocketed in value over the past four years. He continues to hold onto the real estate. During that same period of time my client has discovered that raising teenagers is much more expensive than raising young children. She has appealed to her ex-husband to voluntarily increase the child support without having to go back to court. He has refused.

Most states have statutes which set uniform guidelines for awarding child support and allow the court to periodically increase or decrease a child support award when the finances of the paying parent change. We petitioned the court to reassess her ex-husband's finances. The problem we ran into is that the statute setting the uniform guidelines primarily bases an award of child support on the parent's monthly income. In this case, her ex-husband's records showed that his net taxable income per month had not changed. This is so because he had not sold any of the now extremely valuable property. The statute also prohibits placing any type of lien on the property should he sell the property in the future. This will allow him to wait until the children are over the age of 18 before selling the property. If he does this, the children will not be entitled to any portion of the sales proceeds.

A Plea for Equity
My client is now forced to apply to the court for an equitable adjustment to the child support based on the increased value of her ex-husband's assets. It is not likely that the petition will be granted. This could have been avoided had the original divorce decree provided for an increase of the child support based on a net increase in her ex-husband's assets. Remember, although state statutes provide a set of guidelines for establishing child support you are not limited by the guidelines. In most cases, a divorce attorney will anticipate the future needs of the children and the potential for the paying spouse to "hide" income.