Dealing with a divorce can be overwhelming, particularly when children are involved. Divorcing parents must tackle a host of complex issues related to their children, including financial support, physical custody, and emotional well-being. It is essential for both parties to be well-informed and equipped to handle these matters amicably, so they can help their children thrive during and post-divorce.
In this blog, we discuss the two primary concerns, child support and custody, that parents should consider, and prepare for, before initiating the divorce process. When it comes time for parents to attempt to resolve these issues amicably in the divorce, it’s crucial that each party is fully equipped to come to a resolution that provides for the children financially, emotionally, and physically.
Child Support
How will the children be supported financially?
It is a well-established principle in the law that, unless extraordinary circumstances exist, both parents have a duty to support their children. This principle exists because children are entitled to share in the incomes of both their parents. Therefore, when commencing a divorce, both parents should be prepared to contribute financially towards the support of their children, even if one parent earns significantly more than the other parent.
Typically, the determination of child support is straightforward. In fact, the court will collect information regarding the case and input that information into a program called the Child Support Guidelines. The Child Support Guidelines will then indicate the appropriate amount of child support that should be paid. A court will only deviate from the amount indicated in the Child Support Guidelines if good cause exists to do so, for example, in extreme income situations, where the parents’ combined incomes are considered either extremely low or extremely high.
What information will be collected by the Court to run the Child Support Guidelines?
Courts determine which parent is entitled to receive child support, on behalf of the children, not based on the parents’ respective incomes, but based on which parent the children primarily reside, i.e., the custodial parent who spends more time with the children, and therefore, provides the children with more direct support. The parties’ income proportions come into play when the court determines the appropriate amount of child support that should be awarded. The parents’ custody arrangement and income proportions, however, are not the only factors considered when determining the child support amount. The court will also consider contributions made by the parents toward certain expenses for the children, among other considerations.
Number of Overnights
The court must be apprised of the current custody arrangement to run the Child Support Guidelines. Specifically, the court needs to input the number of overnights each parent enjoys with the children on a yearly basis. For example, if one parent enjoys parenting time with the children every other weekend from Friday afternoon through Sunday evening, that parent has 2 overnights with the children every other weekend or 52 overnights per year. A parent who has more than 50% of the overnights in one year with the children is considered the parent of primary residence and is typically entitled to receive child support on behalf of the children. The number of overnights spent with the non-custodial parent affects the amount of child support awarded, specifically, as the number of overnights with the non-custodial parent increases, the amount of child support decreases because the non-custodial parent is providing the children with more direct support during his or her increased parenting time.
Gross Income
The other main factor that the court must input into the Child Support Guidelines is both parents’ respective gross incomes. The parents will need to supply the court with proof of their gross incomes. If it is before June 30th in the current calendar year, the parents must provide proof of their gross income from the preceding calendar year. If it is after June 30th in the current calendar year, the parents must provide proof of their year-to-date gross income for the current calendar year. Parents should be prepared to supply the court with proof of their income in the form of tax returns, W-2s, and their three most-recent paystubs. Further, if one or both parents are either unemployed or employed, but earning less than their historical earnings or than their ability to earn, a court may determine that one or both parents are voluntarily underemployed and may impute an income for that parent. The imputed income will be used in the Child Support Guidelines, instead of that parent’s actual gross earnings.
Other Considerations
Two other factors that can affect the child support amount are each parent’s contributions toward the children’s health insurance premium and toward work-related childcare. A parent who is contributing toward the children’s health insurance and work-related childcare costs, and who can provide proof of their contributions, may be entitled to a credit when determining child support, and the child support amount calculated through the Child Support Guidelines will reflect such a credit.
Note: This is not an exhaustive list of the factors inputted into the Child Support Guidelines, however, it provides an overview of the main factors considered and the main proofs that parents will need to provide to the court to run the Child Support Guidelines.
Custody
How are decisions going to be made for the children and how much time with the children spend with each parent?
Absent extraordinary circumstances, parents have a right to spend time with their child. There is no presumption that either the mother or the father has a superior right to custody. Instead, the standard the court uses to make a custody and parenting time determination is the best interests of the child. Unless the circumstances indicate otherwise, courts often prefer that both parents be equally involved with the child following a separation and divorce.
Often when parents start to think about custody issues, parents will discuss the children’s residence and a schedule for parenting time. However, there is another very important layer of custody, which involves how decisions will be made for the children following the parent’s separation and divorce. Therefore, within the bucket of custody there are two separate layers of custody:
- Legal custody
- Physical custody
Legal Custody
Legal custody is the authority of a parent to make major decisions for the children. Major decisions for the children typically include decisions regarding the children’s health and education. Typically, parents agree to share joint legal custody, which is the preferred arrangement by courts. When parents exercise joint legal custody, they are required to consult and confer with each other to agree upon all major decisions for the children. In non-emergent situations, if parents with joint legal custody cannot agree regarding a major decision for a child, they must submit an application to the court to make a determination regarding the best interests of the child. If one parent is awarded sole legal custody, that parent has the authority and responsibility to make all major decisions for the children. When determining if joint legal custody is appropriate, parents should consider their ability and willingness to communicate frequently about the children, and to co-parent and to make decisions as a team.
Physical Custody
Physical custody is what typically comes to mind when a parent considers custody of their children. It involves a determination of which parent the children will primarily reside, and how often the other parent will enjoy parenting time with the children. Typically, the parent who is awarded primary residential custody of the children will have the authority over the children’s day-to-day decisions.
To determine the best interests of the children when considering a custody and parenting time arrangement, it is important to consider:
- The proximity of the parents’ residences to each other and to the children’s schools,
- The employment demands of each parent,
- Each parent’s willingness and fitness to accept custody of the children,
- The children’s bonds with both parents; and
- The children’s preferences, if they are of sufficient age and capacity.
Divorce is a complex and emotionally challenging process, and it is important to approach it with adequate preparation and support. If you are contemplating divorce, take the time to educate yourself on the various legal and emotional aspects involved in the process.
It is essential to have the right legal counsel to guide you through every step of the way. Our Matrimonial & Family Law Team are here to provide you with the assistance and guidance you need. Please don’t hesitate to reach Department Chair, Angela G. Kim at akim@hdrbb.com for support.
