Child Custody, Visitation, Child Support & Alimony Source: Primarily FAMILY LAW E&E 3rd Edition by Robert Oliphant and Nancy Ver Steegh - Aspen Publishers 34.2

A. Child Custody Custody decisions are important because the parent with custody decides most aspects of the child's life Where the child will live Where the child will go to school What religion the child practices The noncustodial parent will usually be given visitation rights. He or she can visit on certain days and at certain times of the year Both parents are required to contribute to the support of the child

If parents can't agree on custody, the decision is made by the court The law used to favor the mother in custody disputes, but today both parents are to be treated equally

Defining Custodial Relationships Legal Custody Refers to a parent’s authority to make major decisions on behalf of the child. Physical Custody Refers to a parent’s right to have a child reside with him or her and the obligation of the parent to provide for routine daily care of child.

Sometimes a court will award custody to both parents Sometimes a court will award custody to both parents. This is known as joint custody. In this case, both have an equal say in important issues. Joint custody doesn't mean the child will spend an equal amount of time with both parents! Some legislatures, as well as the American Legal Institute (ALI), have created presumptions that joint legal custody and joint physical custody are in the best interests of the child. Becoming more favored, but some courts don't like because of parent cooperation issues

How is Custody Determined? Natural parent presumption Child’s preferences Parents’ preferences Child’s adjustment to home/school/community “Best Interests of the Child” Health of individuals involved Status Quo Keeping biological siblings together

How Custody is NOT Determined Paternal/maternal presumption—no longer concerned with the sex of parent seeking custody  Cohabitation-whether parent is cohabitating with someone other than the other parent, unless it affects the child  Careers—earning capacity of the parents  Gay and Lesbian Parents  Parental conduct not affecting child Parental/Maternal Presumption: No longer used; courts have become more concerned with the best interests of the child than with the sex of the parent seeking custody. Some jurisdictions have actually held the maternal presumption to be unconstitution. Cohabitation: The UMDA (Uniform Marriage Divorce Act) and ALI prohibit consideration of cohabitation unless it affects the child. Careers: The ALI prohibits consideration of relative earning capacity of the parents (Section 2.12(1)(f)) Gay and Lesbian Parents: The ALI specifically prohibits courts from considering the sexual orientation of the parent. (Section 2.12(1)(d)) Parental Conduct not affecting child: Many states have adopted statutory language contained in Section 402 of the UMDA preventing courts from considering parental conduct that does not affect the parent’s relationship to the child. Usually there must be a nexus between the parental activity and harm to the child. Whether parental conduct affects the child is a question of fact that the trial court must determine on a case-by-case basis.

Child Custody Modification Once custody is determined, courts generally value stability. It is very difficult to modify. Custody is usually modified only upon a showing of: 1. substantial change in circumstances 2. modification would serve child’s best interests 3. present environment endangers child’s health 4. harm to child caused by modification outweighed by benefits

Relocation If one parent has sole custody and wants to move out of state with the child, he or she can generally do so If parents share joint custody, the parent seeking relocation must file a petition showing that the move is in the best interests of the child

Visitation Uniform Marriage Divorce Act Section 407(a): “a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.”

Final order usually schedule hours for parenting time and address issues such as transportation, holidays and vacations. Note that stepparents and grandparents and other 3rd parties are generally NOT entitled to visitation.

Standards for Denying or Limiting Visitation  abuse/neglect  alcohol/substance abuse  child abduction  cohabitation  withholding child support  parent who is gay or lesbian

Because parents have a constitutional right to have contact with their children, courts will ONLY deny visitation in the most egregious circumstances. The burden is on the parent contesting the visitation to show that the child will be seriously endangered. Note that even the permissible factors for consideration often result in limitations, such as supervised custodial time or exchange of child thru an intermediary, and not necessarily an outright denial of visitation.

What is Income for Purposes of Child Support? Usually ‘income from any source’ including: wage and salary interest, dividends and royalties self-employment income retirement, benefits, trust income Non-custodial parent pays child support to the custodial parent.

Imputation of Income If a parent is unemployed or underemployed, courts will sometimes ‘impute’ income to the parent and based on the imputed income. For example, if someone is voluntarily unemployed, the court might assume that the parent makes minimum wage for purposes of calculating child support obligations.

Calculating Child Support Income Shares Model (PA) Support amount based on the combined incomes of the parents and that amount is prorated between the parents based on the percentage of combined income attributable to each. Deviations can be made from child support obligations based on a child’s need for medical support or special care. A parent who owes child support CANNOT withhold payment just because the custodial parent withholds visitation; similarly, a custodial parent cannot withhold visitation just because child support is owed.

Example: Income Shares Model Dad makes $6,000 a month Mom makes $4,000 a month State mandates that the child support amount for $10K monthly income is $1K Dad owes $600 in child support Mom owes $400 in child support Mom is custodial parent Dad would just pay Mom difference ($200/monthly) in child support

Consequences of Failure to Pay Child Support Federal crime Contempt of court State laws against criminal nonsupport Inception of tax refund Wage garnishment Driver’s license suspension Occupational license suspension Seizing awards Credit bureau reporting Publication of a “Most Wanted” list of “Deadbeat obligors” Etc. !

Child support is usually paid until the child becomes an adult or becomes emancipated If you fail to pay support, it can and will be automatically deducted from your pay

Pt. II Scenarios & Small Group Discussions

Scenario #1 Kim and Kanye are parents of baby North. In a custody hearing, the judge granted custody to Kim. The judge said “everybody knows that mothers are better at taking care of children than fathers. Mothers are more loving, caring and kind and they should always get primary physical custody.” Is there anything wrong with the judge’s determination of custody? Why or why not?

Scenario #2 Kail and Joe are parents of Isaac. Kail and Joe had a parenting plan and a schedule for child support payments and everything seemed to be going fine. However, a few months ago they got into a fight and Joe stopped making child support payments. As a result, Kail has refused to let Joe see Isaac until he pays child support. Did Kail (legally) do the right thing?

Scenario #3 Beyoncé and Jay-Z are parents of Blue Ivy. Jay and Bey live in an income shares model state. Beyoncé makes $6 million monthly. Jay-Z makes $4 million monthly. The state mandates that the child support amount for $10M monthly income is $2M. Jay-Z has primary custody of Blue Ivy. How much does Beyoncé owe Jay-Z in child support?

Scenario #4 Justin and Selena are parents of baby Jelena. Selena has sole custody of baby Jelena and Justin has visitation every other weekend. Tired of being hounded by the paparazzi, Selena decides to move to Pennsylvania with the baby so that Jelena can have a normal childhood. Justin doesn’t want Selena to move to a different state, it makes him uncomfortable. He files a motion to block the relocation. Will Justin succeed on his motion?

Scenario #5 Angelina and Brad have six kids (!!). They have been secretly separated for a number of years, and they have finally decided to get a divorce. During their separation, the kids lived primarily with Angelina. However, Brad insists he should get primary custody of the children. If he can’t get custody of all of the kids, he is willing to settle for custody of his three favorite kids and let Angelina have the other three. What are some of the issues here?

Scenario #6 David is a professional soccer player and makes an annual salary of $18 million annually. He and his wife, Victoria, are in the process of getting a divorce. Angry at the prospect of paying a huge chunk of his salary to Victoria as child support, David decides to quit his job as a professional athlete and drop all of his endorsement deals. Can Victoria do anything to get the child support she is owed?