April 23rd, 2023
April 23rd, 2023
There are two parts to every divorce. The first part is the termination of the marital relationship itself by a court decree. The second part consists of dividing the house, cars, furniture, bank accounts, and other assets; providing for the payment of spousal support; and settling issues of child support, custody, and visitation rights if children are involved. This is all incorporated into the final Divorce Agreement. This guide will cover all of the issues related to divorce that involve children, including child custody, visitation, and support. While this guide is related to divorce, issues relating to children apply to any parents who are separating, regardless of whether they were ever married. To find more information about other issues related to divorce, such as property division and spousal support, this website also has a How to Get Divorced guide that covers those topics.
Issues surrounding children can often be the most contentious and difficult to resolve during the process of divorce. Too often, children become the pawns in a divorce, with one parent using them to hurt the other parent. It is vital to the welfare of the children that their parents put aside hostile feelings toward one another and address the issues using a collaborative approach rather than a contentious one.
Child custody and visitation are complicated issues only if both parents want custody of the children. If the parents can agree on who gets custody, the judge will almost always accept their decision without second-guessing it. Any understanding regarding child custody should be incorporated into the written Divorce Agreement or a separate Child Custody Agreement. However, any provisions related to children are generally subject to court modification.
When parents separate or divorce, the term "custody" serves as shorthand for "who lives with and cares for the children" under the divorce agreement. In most states, custody is split into two types:
Custody of the children used to be routinely awarded to the mother. The law presumed that the mother was in a better position to take care of the children. The father could get custody only if he could prove serious charges of immorality, child abuse, or neglect against the mother. Today, judges focus on the welfare of the child: is it in the best interests of the child to award custody to the mother, father, or both? Courts frequently award at least some aspects of custody to both parents. This is called joint custody, and it usually takes one of three forms:
In every state, courts are willing to allow parents to share joint legal custody, but about half of states are reluctant to order joint physical custody unless both parents agree to it, and they appear to be sufficiently able to communicate and cooperate with each other to make it work. In some states, courts automatically award joint legal custody unless the children's best interests -- or a parent's health or safety -- would be compromised by doing so.
Judges frequently use what is known as the "best interests of the child standard" to make decisions related to children, such as those related to child custody and visitation. Maintaining a stable home environment is at the top of the judge's list in deciding what is in the child's best interest. A divorce is a major disruption in a child's life and the judge will do everything possible to minimize that disruption. With younger children, this may mean awarding custody to the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships. For this reason, the parent who keeps the family home usually gets primary custody of the children, especially if the children have lived there for several years and attend school in the area. If no house is involved, or if the house will be sold, the judge will take into consideration how far from the area either parent plans on moving.
Many other factors are considered when determining the best interests of the child, including:
If a parent does not get custody of their children, they are usually able to establish reasonable visitation rights. A judge will only step in to make this determination if the parties are not able to decide visitation for themselves. Visitation rights may consist of one night a week, every other weekend, one month during summers, and/or alternating major holidays (for example, one parent gets the children for Thanksgiving one year and then for Christmas the next), or any other combination of parenting time spent with either parent.
To establish visitation rights, parents will often incorporate a parenting agreement into the Divorce Agreement. This parenting agreement is a detailed, written agreement between divorcing parents that describes how they will deal with visitation, holiday schedules, vacation, schooling, and other issues related to their child. More and more, courts are encouraging the use of parenting agreements during divorce proceedings. If couples are able to discuss and agree upon how to deal with issues affecting their children -- rather than having a judge make an independent ruling on those issues -- they are more likely to stick to the terms of the agreement.
In most states, it is a crime to take a child from their parent with the intent to interfere with that parent's physical custody of the child, even if the taker also has custody rights. This crime is commonly referred to as "custodial interference." In most states, the parent deprived of custody may sue the taker for damages and get help from the police to have the child returned. If a parent without physical custody, who may or may not have visitation rights, removes a child from -- or refuses to return a child to -- the parent with physical custody, it is considered kidnapping or child concealment in addition to custodial interference. Federal and state laws have been passed to prosecute and punish parents guilty of this type of kidnapping, which is a felony in over 40 states.
After a divorce agreement is established determining custody and visitation, parents may agree to modify the custody or visitation terms. This modified agreement, also called a "stipulated modification", may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child. Generally, courts will modify an existing order if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability and helps prevent the court from becoming burdened with frequent modification requests.
One of the most common reasons for changing a custody arrangement is a geographic move. If a custodial parent makes a move that will seriously disrupt the stability of the child's life, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order. Custody orders frequently prevent the custodial parent from moving out of the country or state unless the court's permission is first obtained. If the custodial parent is moving for a legitimate reason, such as a new job, the judge will generally allow it. If the move to a new and faraway state seems to be primarily motivated by keeping the noncustodial parent from seeing the children, the request to move the children to a new state will be denied. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If no agreement can be reached between the parents, the court's next step depends on the state. Courts in some states will permit the move unless the other parent can prove that the children will be adversely affected. In other states, the court will repeat the best interests of the child examination, exploring factors such as switching schools and distance from relatives, and then make a decision about how to modify the Child Custody Agreement.
The other most common reason for changing a custody arrangement is a change in lifestyle. If substantial changes in a parent's lifestyle threaten or harm the children, the other parent can often succeed in changing custody or visitation rights. If, for example, a custodial parent begins working at night and leaving a five-year-old child alone during their overnight shifts, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or abusing drugs, the custodial parent may file a request for modification of the visitation order. They could request, for example, that visits occur only when the parent is sober or in the presence of another adult. What is considered a lifestyle change that would be detrimental enough to warrant a change in custody or visitation rights varies tremendously depending on the state and judge involved in the case.
One ongoing issue related to divorce is child support. Unlike spousal support, which usually stops when the spouse receiving it remarries, the duty to support one's children usually isn't affected by either party's remarriage. The obligation to support a child ends only when the child reaches the age of majority -- 18 in most states -- or becomes emancipated (gets married or moves out on their own and becomes self-supporting). Biological or adoptive parents must support a child of theirs until:
When one parent has sole custody of the child, the other parent is typically required to pay child support to the custodial parent. The custodial parent meets support obligations through maintaining custody and caring for the child. When parents have joint physical custody, the support obligation of each is often based on the ratio of each parent's income to their combined incomes and the percentage of time the child spends with each parent. The parents' income is their gross income from all sources -- such as salary from work, investment income, or public benefits -- minus any mandatory deductions. Mandatory deductions include income taxes, social security payments, and health care costs. Deductions do not include debt obligations or, generally, personal expenses. This determination is made regardless of the gender of either parent. Each parent has a duty to support their children and that duty does not discriminate between genders. If the parents agree, this amount can be stipulated in the Divorce Agreement or in a separate Child Support Agreement. If there is any disagreement, this can be calculated by a judge and put into a court order.
Each state has guidelines for calculating child support, based on the parents' incomes and expenses and the amount of time each parent spends with the children. These guidelines vary considerably from state to state. Judges in some states have a large amount of discretion when setting the actual amount, as long as they follow the general state guidelines. However, an increasing number of states have very strict guidelines that leave the judge with very little leeway. State guidelines can be found with the state child support enforcement agency, usually part of the state department of human services. Most states have this information, along with child support calculators, on their websites.
Parents can agree to modify the terms of their child support agreement, but even an agreed upon modification for child support must be approved by a judge to be legally enforceable. If the parties are not able to come to an agreement, they can ask that a court hold a hearing during which each parent can argue their own side of the proposed modification. Usually, the court will not modify an existing order unless the parent proposing the modification can show that circumstances have changed substantially.
Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that might be considered substantial enough to justify a temporary change in a child support order include:
A permanent modification could be awarded under the following circumstances:
Divorce can be especially stressful when children are involved. However, by collaboratively addressing the following key issues, parents can do their best to separate without causing too much disruption to their children's lives:
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.