11 minute read

Custody and Child Support

Further Readings

Of all issues facing partners following dissolution of their marriage, by farthe most emotional, stressful and controversial one is that which addressesthe future care and custody of children born of the marriage. All states require natural or adoptive parents to support their children until the childrenreach the age of majority (with some exceptions) or go on active military duty. All states consider the best interests of the children in awarding custodyto one or both parents. Most states have visitation statutes addressing therights of grandparents, other relatives , and non-custodial parents to spendtime with the children. A majority of states have adopted uniform laws to prevent "forum-shopping" and the abduction or relocation of children to states with laws more advantageous to the relocating parent. Domestic issues such aschild support and custody tend to clog state court systems and tax court resources, often causing a delay in other civil matters on the docket. As a result, many states are creating separate family law or domestic law divisions within their court systems, to expedite the handling of these claims as well aspromote judicial economy.
Child Custody
Upon dissolution of a marriage, states require that the courts address childcustody as part of the divorce judgment. This involves issues of both legal and physical custody, sole or joint. Legal custody involves the right to makemajor decisions affecting the child, whereas physical custody addresses the day-to-day care and living arrangements for the child. Many courts will rule separately on legal and physical custody, and for each, whether such custody is vested in one parent or both. All rulings are subject to modification uponpetition of either party to the court, as a result of an alleged significantchange in circumstances.
Historically, early common law gave custody of the children to the father, aschildren were considered "property" in the eyes of the law. This was followed by the Talfourd Act, which instructed the courts to award custody of children "of tender years" to their mother. Many states then created a legal presumption that the mother should be granted custody. The presumption correspondedappropriately with social mores and attitudes of the time that endorsed theperception of female parents as nurturing, domestically-oriented care-providers. Finally, in the latter half of the twentieth century, courts have modified statutes to remove any presumption of gender fitness for custody, for the most part relegating it to the role of a tie-breaker factor, if all else was equal. Courts now rely on judicial discretion and determination of "the best interests of the child." The Uniform Marriage and Divorce Act (UMDA), which, among other things, standardizes the criteria used to determine custody, has been adopted in many states. However, the UMDA criteria are ultimately weighted and factored in conjunction with the considerable latitude and discretion afforded the courts. In any event, a consideration of the child's best interests would theoretically include such factors as the wishes of the child's parents toward custody; the wishes of the child as to his preference for custodian; the child's adjustment to his home, school and community; the interactionand interrelationship of the child with his parents, siblings or others; andthe mental, physical and financial health of all individuals involved. In contested battles for custody, most courts will not consider conduct or fault inthe marriage on the part of a potential custodian that does not affect his or her relationship with the child. Unless a court has convincing evidence before it that harm may come to the child or a parent, most states prefer shared(joint) custody and parental decision-making. In fact, some courts have nowcreated statutory presumptions of joint custody, to be ordered absent any convincing evidence that it would not be in the best interests of the child.
Variations abound. Some courts disfavor "split custody" which awards custodyof one or more children to one parent, and the remaining children to the other parent. Other courts favor split custody as it has the appearance of fairness. Split custody has been criticized as disruptive of the emotional bond andsupport gained between siblings, and often leads to polarized feelings. Often when this determination is employed, it is usually to address a temporary circumstance. Another variation is referred to as "bird's nest" custody. The children remain in one home and the parents alternately move in and out. Thisprovides environmental stability to children, instead of being "shipped off"from parent to parent, and often contributes toward more consistent parenting. Still other courts will order alternating or "serial" custody wherein children will live with one parent for a long time (typically a year), then switchto the other. This is to be distinguished from joint custody in that the custodial parent has sole, not joint, custody during the time the child is withhim/her. Finally, a court may deem both parents unfit for custody, or the parents have voluntarily relinquished their right to custody. In these circumstances, third parties may be granted custody, including grandparents, godparents, stepparents, and family friends. However, in most jurisdictions, there isa presumption that the biological parent has a "natural" right to the child superior to the claims of third parties.
Custody principles have been taxed to address arguments over frozen embryo, domestic pets, and children born outside of the marriage. Conversely, in the absence of fit biological parents, courts have applied "best interest" criteria in granting custody to adoptive parents, "psychological parents" (those whohave established a significant emotional bond with a child) and (at least inMichigan and Wisconsin) to "equitable parents" (typically, a spouse who is neither a biological nor adoptive parent to the child).
In addition to the common "best interests of the child" criteria, courts varyin their consideration of other factors in awarding custody. Additional criteria frequently weighed are the parent's ability to meet the needs of the child, the moral fitness and conduct of the parent, a history of any child abuse, the geographic distance between the parents' homes, the hostility of one parent toward the other, and the sexual orientation of the parent. In the 1984case of Palmore v. Sidoti, the U.S. Supreme Court ruled that it was unconstitutional for a court to consider race when a noncustodial parent petitions a court for a change in custody. The court held that societal stigma, especially a racial one, cannot serve as a sole or determinative basis for a custody decision. In many state courts, this argument has been raised in defenseof granting custody to homosexual parents, but often fails for its distinguishing facts.
Most custody decisions are made by a judge or magistrate within the state's court system. In a handful of states, a jury may hear arguments and decide. Many states also provide for the appointment of an independent guardian ad litem to represent the child's interests so that the child is shielded from being a party to the dispute, or actually having to testify or respond to the court's inquiry. In such cases, the guardian may be a court-assigned stranger, or a nominated family relative or attorney. Many courts also provide formediation or arbitration of custody disputes. Often the mediations are confidential by statutory provision, and serve merely to provide a forum for extra-judicial resolution or recommendation. In many states, the court may order acustody investigation and/or solicit recommendations by independent or court-appointed evaluators (mediators, "Friend of the Court" appointees, etc.). Additionally, statutes often provide courts with the power to compel parents toparticipate in mediation to resolve custody disputes before bringing the matter before the court. A court's power to adjudicate custody matters is generally terminated when the child either reaches the age of majority, or is "emancipated" by getting married, joining the military, or is adopted by other parents. This must be determined judicially, not by the parents or child. Thereis continuing jurisdiction of the courts in some circumstances, as when the child is legally incompetent.
The correlative rights of noncustodial parents are those of visitation. Visitation rights may also be judicially granted to others affected by the custodyaward, such as grandparents, relatives, siblings, and persons having a significant interest in the welfare of the child, such as a non-biological, fosteror adoptive parent. This is true even where the parents object to the visitation as interfering with their right to raise their children as they see fit.Moreover, many states have expressly created language granting visitation rights to otherwise fit, biological fathers (but unwed parents) of children, whether or not the biological mother has since seen the father. The implicationof the U.S. Supreme Court case of Vanderlaan v. Vanderlaan is that inany circumstance where the father, mother and child have lived in a de facto (actual, if not officially recognized) family setting, the father haspotential visitation rights. Many states go beyond that in granting visitation to estranged or recently-ascertained biological fathers.
There are several classifications of visitation which may be awarded. "Reasonable visitation" allows the parents to create their own visitation schedule,most applicable in non-adversarial divorce cases. The noncustodial parent isallowed to see the child upon "reasonable notice" to the custodial parent. A"fixed-schedule" visitation, or court-scheduled visitation is imposed when there is parental conflict over visitation rights. It must be emphasized that many courts have held that custodial parents have more than a duty to simply let visitation happen according to the court's order. In cases where noncustodial parents assign low priority to meeting fixed-schedule visitations, courtsmay order that the custodial parent actually deliver the child to the noncustodial parent for purposes of visitation. Such courts reason that until a child is old enough to make his own decisions not to visit with the noncustodialparent, frequent exposure to that parent will facilitate independent development of the child's perception of that parent, as well as insure that the child has had the benefit of emotional and physical development under both parents. However, when a noncustodial parent has a history of violent or destructive behavior, especially toward the child, courts will order "supervised visitation." Such visitation requires that an adult other than the custodial parent be present at all times during the visitation. The adult may be someone agreed upon by the parties, or an independent person appointed by the court, butin all circumstances, the court must approve the particular person chosen. Restricted or supervised visitation may also be ordered when a noncustodial parent has not seen the child for a long time (until he or she can demonstrateability to care for the child). The same is often ordered where the parent may not impose any direct harm upon the child, but may engage in harmful conduct in the presence of the child, such as with substance abuse, cruelty to animals, or a history of reckless vehicle driving. Again, the operative languagein visitation disputes focuses on the "best interests of the child." As withcustody decisions, visitation awards and decisions are subject to modification upon petition of a party or other interested person, whenever new evidenceor changes in circumstance warrant such review or modification. Again, the court's authority is terminated upon the child reaching the age of majority, orbeing judicially declared as "emancipated" following marriage of the child,joining the military, etc., but may continue in the presence of a legally-incompetent child.
Child Support
Inextricably bound to the states' powers to adjudicate custody and visitationrights are the states' powers to impose and order the payment of financial support to the custodial parent. While both parents are responsible for theirchildren, the custodial parent generally meets that obligation through the act of custody. The noncustodial parent meets that obligation by paying for thechild's care. Court-imposed support orders are most often the result of divorced parents, but can arise from other circumstances such as legal separation, annulment and paternity actions involving "presumed" or "acknowledged" fathers. Child support payments are distinct awards not related to alimony or other "rehabilitative support" payments.
States now require that child support awards be computed by a mandated formula which weighs certain factors or criteria such as the needs of the child, the relative income and assets of the parents, and the standard of living to which the child was formerly accustomed. Many statutes permit a court to departfrom the presumed correct formula, and modify the award where it is unjust or inappropriate by reason of facts peculiar to that case. A court may also overrule the private parties' non-judicial agreement. Also included in most support orders are provisions dictating to whom the payments should be made (thecustodial parent, an officer of the court, etc.). A child support order mayalso contain provisions mandating that the paying party maintain health and life insurance policies to protect against interruption or loss of support. Security deposits may be required, along with the payment of late fees and COLA(Cost of Living Adjustments).
Child support ends upon the child's reaching the age of majority, or upon a judicially-determined emancipation of the child through marriage, adoption, military service, etc. Conversely, state provisions often mandate continued support until the child completes a certain level of education or attains a certain age past majority, whichever comes first. Most states mandate continued coverage for disabled or legally-incompetent children. As with orders for custody and visitation, support orders are subject to modification upon petitionto the court for good cause (change in circumstances).
Various state and federal laws protect rights of visitation, custody and support secured by court order. Federal laws include the Family Support Act of 1988, which emphasized enforcement of child support orders against delinquent parents. The act mandated that all new or modified support orders contain automatic wage attachment provisions, along with automatic tracking and monitoring systems for parents defaulting in payments. The Revised Uniform ReciprocalEnforcement of Support Act (RURESA) (or its predecessor) has been enacted inall states, or replaced /supplemented by the Uniform Interstate Family Support Act of 1992 (UIFSA). This law provides the process for enforcing child support orders against persons living in another state. In conjunction with thislaw, many states have developed parent locator services to aid enforcement.
The Uniform Child Custody Jurisdiction Act (UCCJA) statutorily enhances the constitutional "full faith and credit" clause by facilitating enforcement of other states' custody orders, thus avoiding relitigation of custody decisionsin the prior state. It requires that litigation concerning custody take placein the forum state with which the child and his family have the closest connection and where significant evidence is most readily available. Several provisions thus serve to deter abductions and unilateral removals of children forthe purpose of "forum-shopping." The Parental Kidnapping Prevention Act alsoparallels several provisions in the UCCJA by requiring courts to enforce judgments of other states. International kidnapping is addressed in the International Child Abduction Remedies Act.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Cross‐contamination to Deed of covenant