Dealing with a Divorce: Who Receives Custody of the Children?

The process of divorce is complicated, emotional and often combative, but no more so than when children are involved.

Both parents may believe they are the best fit for their child’s primary caretaker, but the courts have a specific way of dealing with both custody and child support.

In determining the custody of minor (under 18) children, the court is guided by one standard: the best interest of the child. The court may award "joint legal custody" where both parents have a role in making decisions for the child, or "sole legal custody" where one parent is ultimately responsible for making decisions in the child's best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. In other words, a judge will not make a decision on custody based on one spouse having had an extramarital affair. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a material change in circumstances after the date of the divorce.

Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live, and the child's wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.

Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will have scheduled time with the child. Time sharing between the parents will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.

What are the Child Support Obligations?

Each parent is expected to contribute to the support of the minor child. Depending on the time sharing schedule, the difference between the parties’ incomes, and other factors, there may be a child support payment that is owed between the parents. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both of the parents or of the child.

Depending on the time sharing schedule, the court may use a “shared custody” guideline (where both parents have more than ninety days per year with the child) or a “sole custody” guideline, where one parent has fewer than ninety days per year. Both guidelines take into account the cost of work-related childcare and health insurance premiums for the child. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies. The court can also apportion tax exemptions for the children between the parties.

If you are undergoing a divorce, having an experienced family lawyer on your side is critical when making your case for child custody and support. Our family law attorney, SuAnne Hardee Bryant, is a certified Collaborative Divorce Specialist, meaning she works to do everything possible to find a mutually beneficial agreement for both parties outside of the courts, including child custody and support. However, she is also an experienced litigator, and walks our clients through court proceedings with an in-depth knowledge of the system. While divorce can be extremely difficult for a family, know that we share your goal of getting the best outcome for your child. Give us a call today to set up an appointment with SuAnne.