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CHILD SUPPORT AND
CUSTODY Parents have a legal obligation to care for their children which means to properly cloth, feed and shelter them. Parents, even though not married or divorced, continue to have their obligation of child support until the child is age 18 and in some cases longer. It
is important to know that child neglect endangers the safety of a child and is a
crime. It is also important to
remember that each parent, whether married or not, has an obligation to support
the children. Each parent also has
a legal right to custody of the child. If
the parents can’t agree on these three issues, support, custody, visitation,
the court will hear the case and issue orders. WHO GETS CUSTODY WHEN PARENTS LIVE APARTWhat
the court will seek to determine is “what is in the best interests of the
child.” Parents
who have separated can agree informally on custody and visitation arrangements
i.e. one parent may have primary custody of the child with the other parent
having visitation; for example, every other weekend and one day during the week.
The parents could agree to more liberal visitation rights.
Visitation is also called “partial custody.” If
parents can not agree, either may file a petition asking the court to decide the
issue. The court will apply the
standard “what is in the best interests of the child.” The “tender
years” doctrine i.e. a presumption that only the mother should have primary
care of infants with no overnight visitation rights for the father has been
overruled on constitutional arguments giving both parents equal rights to
custody of their children. CHILD SUPPORT CONSIDERATIONS – Generally, once a child reaches age 18 or graduates from high school the child is considered emancipated and parental support obligations end. If a child, is disabled in some way, the support may continue beyond age 18. In some instances, such as by contractual agreement of separated parents, the support obligation may continue beyond high school into the college years. THE STATE AS ULTIMATE PARENTThe
state has ultimate authority for the care of children within its jurisdiction.
This power enables the state under certain circumstances to terminate
parental rights, approve adoptions, order support payments that exceed those
agreed to by parents and remove children from their parents’ and place them in
foster homes. Support
order amounts are based on court
established guidelines which take into consideration the income of both parents,
expense as well as special needs of
the children. Support orders can also be changed if it is shown that there has
been substantial changes in circumstances i.e. special medical needs of a child
or decreased earnings. If
a support agreement is not entered as a court order, and the parent obligated to
pay support under the terms of the agreement fails to do so, a breach of the
contract has resulted. This will
force the custodial parent to file a petition for entry of a court support
order. However, under most
circumstances, the support obligation will commence from the date the petition
for support was filed and not the date of the agreement was entered into or
broken. Therefore it is advisable
to have support agreements entered as “court orders” even though it may not
involve wage attachments paid directly through the court. If payments are not
kept up, the “order” will be retroactive to the date the payments were due
but not paid. WHEN ONE PARENT LEAVES THE STATE.Most
states have adopted the Interstate Family Support Act.
This means that support orders entered in one state will be enforced in
other states which have adopted the reciprocal support law. Most
states also have adopted some version of the Uniform Child Custody Jurisdiction
Act (UCCJA). The Act means that the
states that have adopted the Act will recognize and enforce custody orders
entered in other states. The act
also sets forth certain guidelines as to which court is most appropriate for
hearing a custody case when a custody order is not entered prior to one
parent’s moving away with the children. The
general rule of thumb is that the state where the child has resided for the past
6 months is the appropriate state to determine custody issues. IGNORING THE RIGHTS OF NONCUSTODIAL PARENTRelocating
without giving the other parent notice could result in sanctions by a court
including loss of custody rights or severe curtailment of them. SHARED LEGAL CUSTODY“Shared
legal custody” is recognized in most states and means that although one parent
may have primary custody of the child, both parents have the right to be
involved in major decisions affecting the child. In days gone by, the parent awarded primary custody usually
had the right to make all the decisions and the parent with visitation rights
only was often left with no say in these kinds of decisions. Under the shared custody laws, this has changed. Matters touching on schooling, health needs including psychological aid and other important issues come under the category of major issues and the parents must consult with each other and make the decisions jointly. Minor factors such as hairstyle, clothing, etc. would not be considered shared custody issues. For
a more specific discussion, please contact us. Ó 2003 James W. Pearson, Jr., All Rights Reserved FOR
ADDITIONAL INFORMATION CALL THE TOLL FREE HELP LINE 1-800-232-1477 E-mail: lawyer@lawwalk.com JAMES
W. PEARSON, JR. Chair of the Federal & State Credit Union Department & Coordinator of legal consultations under the Family Legal Care Plans offered to credit union members. |
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