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Child Custody



One of the main contested issues in a divorce case is the custody of minor children (those under 18 years of age). Before the parties separated, each parent enjoyed full custody of the minor children. Consequently, there was no issue as to who was the parent. Up to that point, the parties had been sharing the responsibility of raising the children. After separation, custody of the minor children is divided between the parents. As a result, custody of the children is divided and the result can be a 60/40 time share, 50/50 time share, or it could be divided on some other percentage basis. The parties can agree to an appropriate time share by stipulation and court order or the court will set an appropriate time share that is in the "best interest of the children." 

The "best interests" standard is a very subjective test. It is almost impossible for the court to truly know what is in the best interest of the minor children. If the parents cannot decide, and they raised the children, it is that much more difficult for the court to make such a finding. Nevertheless, in making this determination, the court will look at such things as who spent more time with the children, who bathed them, took them to school, helped with school work, cooked them dinner, etc. Also, depending on the age and maturity of the child the court will consider the child's preference. 

The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents and will consequently lead to numerous requests for modification of custody orders. Child custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children and legal custody, or the legal rights and responsibilities associated with the child's upbringing, which includes education, religion, school, and extra-curricular activities. Courts are favoring joint legal and joint physical custody and the sharing of ongoing child rearing responsibilities, with the children residing where it is most practical and where they will flourish best. 

Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, most courts will require parents to participate in a mandatory mediation session. If mediation is unsuccessful, the court will determine custody. Though rules differ from state to state, most courts generally reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child. 

Except when parties agree otherwise, courts often impose standard visitation and custody orders. A typical visitation schedule allows a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. In order to change a court-ordered custody and visitation scheme the parent seeking the modification must show a substantial change in circumstances once there has been a final order. Some states will only consider a request for modification within two years of an original custody determination if there is a showing that the child is endangered by the current arrangement. In order to prevent parents from shopping for friendly rulings in different states, some states will only consider custody-related requests if the child has been a resident of the state for six months or longer. 

Child Visitation



When children are involved in a divorce, child visitation and custody are a vital topic that must be resolved. Before the separation, each parent enjoyed full custody of the minor children (those under 18 years of age). After the separation, custody of the minor children is divided between the spouses. As a result, the new division result can be a 60/40 time share, 50/50 time share, or it could be divided on some other percentage basis. The parties can agree to an appropriate time share or the court will order a time share that is in the "best interest of the children." 

The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents. Custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children and legal custody, or the legal rights and responsibilities associated with the child's upbringing. A couple can agree to an arrangement. If no arrangement can be reached, the court determines one for them. Courts are favoring joint ongoing child rearing responsibilities, with the children residing where it is most practical and where they will flourish best. 

Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, most courts will require parents to participate in a mandatory mediation session. If mediation is unsuccessful, the court will determine custody. Though rules differ from state to state, most courts generally reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child. 

Except when parties agree otherwise, courts often impose standard visitation and custody orders. A typical visitation schedule allows a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. In order to change a court-ordered custody and visitation scheme the parent seeking the modification must show a substantial change in circumstances. Some states will only consider a request for modification within two years of an original custody determination if there is a showing that the child is endangered by the current arrangement. In order to prevent parents from shopping for friendly rulings in different states, some states will only consider custody-related requests if the child has been a resident of the state for six months or longer.

Child Support



Child support is ordered pursuant to a complex formula (California Child Support Guidelines) that involves many factors, two of the most important of which are the time share percentage each parent has with the children and the absolute and relative incomes of the parties. 

California Law requires that parents financially support their children. That obligation usually lasts until the child reaches "the age of majority" (18 years), or 19 years if the child is still a fulltime high school student and living at home, marriage of the child, emancipation, or becomes self-supporting. The responsibility to provide support in the form of regular payments generally arises when one parent has primary custody of the child (or more time than the other parent). An order for child support may be entered during or after a divorce. Either parent may be ordered to pay support depending upon how custody is arranged. An unmarried mother may also file a petition for child support in family court and an order for support will be entered once paternity has been established. 

Is Child Support and Percentage of Custody a Factor?

It is important to note that just because the parents share equal time with the children, this is to say they have a true 50/50 equal time split, does not mean one parent will not have to pay the other one child support. If one parent earns more money than the other, it is likely that he or she might have to pay child support to the other parent even if they share equal time with the children. 

In every state, the amount of support is set after the needs of the child and the parent's income are assessed through the use of state specific guidelines. The paying parent must regularly make the ordered payments usually half is paid of the 1st of the month and half on the 15th of the month. Failure to remain current with child support obligations exposes the paying parent to significant penalties. 

Furthermore, child support arrears collect interest at a rate of 10% per year and pursuant to California Law there is no statute of limitations for child support arrears. The debt is good until paid. It cannot be discharged in a bankruptcy or barred under the legal theory of Laches. 

Calculating Income for Child Support 

It is very important to be able to accurately calculate the income of the parties. This is easier when a person is not self-employed and receives W2 wages. If such is the case, then Gross Income is provided on the person�s pay stub, W2 statement, or tax returns. However, calculating income is much harder when a person is self-employed. When such is the case, it is extremely important to make sure that all of the itemized deductions are legitimate and proper business expenses. If not, the court will add those deductions back into the parties Gross Income. 

There are other allowable deductions such as health insurance premiums, dental insurance, union dues, mandatory retirement, and non-reimbursed job related expenses. This are also important factors to consider when calculating child support orders although there importance and impact is less than the two main factors described above. 

Once support has been ordered, both parents have the right to request changes or modifications. Paying parents face a difficult time when making a request that support be reduced. Even if a paying parent's current income is insufficient to meet their support obligations, a court may impute a higher earning capacity to them and order support based on that higher earning power.

Reduction of Income 

A common mistake made by parties paying child support is not to seek a modification of the child support order as soon as there is a change in his or her income, or the custody schedule. Once an order has been made, it is enforceable until modified. Thus, if the person becomes unemployed or disabled, or suffers a reduction in pay for any other reason, it is that person�s responsibility to seek a modification at that time. Child support will only be modified as of the time of the request for a modification and not from the time of the change in circumstances. 

For example, if a parent is unemployed but waits one year before he or she files for a modification, he or she will be precluded from seeking that the modification be retroactive to the date that he or she became unemployed. The order will only be modified as of the date the party filed the motion to modify the child support order. Therefore, it is important that once there is a change in circumstances that the party needing a modification file immediately.

Because of the state specific requirements involved in child support, parents can benefit from the advice and involvement of an experienced family law attorney when child support issues arise. 

Child custody and support are two of the most contentious issues in many divorce proceedings.