1. Child Custody, Visitation and Child Support

2. Icebreaker
What are some important factors to consider when determining custody, visitation and child support arrangements?

3. Words & Terms to know Divorce Separation Kinship Custody Child support
Visitation
“ Best interest of child ”
Guardian
Poverty
Custodial
Non-Custodial
Health
Safety
Welfare

4. Pt. I Introduction to Custody, Visitation, and Child Support

5. 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.
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.

6. Custody Joint custody Kinship
The care and keeping of something or someone such as a child.
Custody can be temporary or permanent and is unlikely to change once its awarded
Parents with custody decides most aspects of the child’s life such as their living arrangements and school.
Noncustodial parents are given visitation rights
Joint custody
A custody arrangement in which devoiced and or separated parents have equal rights in making important decisions concerning their children
Joint custody is unlikely to be awarded unless both parents or guardians can demonstrate the ability to work well together
Kinship
Placement of a vulnerable youth in continuous care and supervision of relatives who are not his or her parents directed by social services or other child care and welfare agencies.
In many states laws have been passed for grandparents to petition for visitation rights if the child’s parents will not voluntarily grant visitation to them
Supreme court expressed that, granting visitation rights would determine a parent’s fundamental interest in the care, custody, and control of his or her children.

7. Custody Federal Parental Kidnapping Prevention Act
Prevents parents who abduct their children from getting new custody orders in different states.
This act also provides resources to help custodial parents locate their missing children.

8. How is Custody Determined?
Natural parent presumption
Child’s preferences
Parents’ preferences
Child’s adjustment to home/school/community
“Best Interests of the Child”
Courts are interested in the “best interests of the child.” To determine what constitutes BIC, they consider a variety of factors including, but not limited to, the ones listed here.
HEALTH OF INDIVIDUALS INVOLVED
Status Quo
Keeping biological siblings together

9. How Custody is NOT Determined
✗Paternal/maternal presumption ✗ Cohabitation ✗ Careers ✗ 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.

10. Child Custody Modification
Once custody is determined, courts generally value stability.
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
Note that once custody is assigned, it is difficult to modify it.

11. 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

12. 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. There was a case from WA called Troxel v. Granville where the Supreme Ct struck down a WA state statute that granted visitation for grandparents.

13. 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.

14. 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.
Stepparents usually are not obligated to pay child support for their stepchildren upon divorce.

15. 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

16. Example: Percentage of Income Model
Mom makes $5,000 monthly
State mandates that people who have two children and make $5K monthly must pay 20% in child support
Dad has primary custody
Mom owes dad $1K monthly

17. 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 was historically a state issue but in an effort to promote uniformity and reduce public assistance expenditures, the federal government became increasingly involved in creating national child support policy.
The Child Support Recovery Act of 1992 made it a federal crime to willfully fail to pay a past-due support obligation. In 1998 CRSA became “Deadbeat Parents Punishment Act”

18. Pt. II Scenarios & Small Group Discussions

19. 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?
There is definitely an issue here! As we discussed, maternal/paternal presumptions are inappropriate considerations for determining custody.

20. 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?
No, Kail cannot legally withhold visitation just because Joe is failing to fulfil his support obligations. There is alternative recourse for Kail, such as seeking court enforcement or some of the other penalties we discussed for failure to make child support payments.

21. 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?
Beyonce must pay Jay-Z $400K monthly.
Beyonce owes $1.2 million and Jay-Z owes $800K. Since it doesn’t make sense for them to ‘exchange’ checks, Bey just pays Jay-Z the difference.

22. 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 Washington 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?
Probably not. If a parent has sole custody of a child, he or she may generally relocate to another state with that child (remember, people have a constitutional right to travel between the states).

23. 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?
Courts have recognized time and time again that it is in children’s best interests to have stability; thus, maintaining the status quo is usually favored. Thus, since the kids have been living primarily with Angelina, a court would likely be hesitant to disrupt this arrangement and grant sole custody of the kids for Brad. Courts have also recognized keeping siblings together often goes towards children’s best interests. Thus, Brad’s proposal of splitting the kids down the middle is misguided and unlikely to be adopted by a court.

24. 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?
Yes, Victoria can ask the court to impute David’s salary for purposes of calculating child support. Because David is voluntarily unemployed in a bad-faith effort to avoid his child support obligations, the court will probably not hesitate to impute his former income onto him.

25. Child Support

26. Purpose of child support?
Meet child’s subsistence or minimal level needs
This view has been universally rejected
Support the child consistent with a standard of living based on the incomes of the parents
Underlying assumption of all guideline models

27. Duty to support children
The court may require either or both parents to pay support in accordance with the guidelines, whether the child is born in or outside of marriage
Every child support order must contain a provision for health insurance for the child when insurance is reasonably available
The cost of health care coverage and uncovered expenses is apportioned between the parents based on a ratio of incomes
Parent cannot bargain away a child’s right to support

28. When does that duty end?
Support typically ends at the age of majority (18)
A court may order child support beyond the age of majority if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school performing in good faith with a reasonable expectation of graduation before the age of 19
If there is a reasonable expectation of graduation within a short time period after a child's 19th birthday, child support may be ordered beyond age 19

29. What about college expenses?
The court cannot order a parent to finance a child's college education. Grapin v. Grapin, 450 so. 2d 853 (fla. 1984)
But parties may contract in their marital settlement agreements to provide for college education or other support beyond majority
These contracts are enforceable by the court. Finn v. Finn, so. 2d 726 (fla. 1975), mcilmoil v. Mcilmoil, 784 so. 2d 557 (fla. 1st DCA 2001)

30. Guideline Models Income Shares Percentage of Income Melson (Delaware)
Cassetty

31. Historical standard for child support
Meet the needs of the child
Within the parents’ ability to pay
Many states and local courts had informal guidelines or “rules of thumb” that were not mandatory or presumptive

32. Comparison of the four models
Income shares guidelines tend to depress child support levels at high incomes and increase it at very low incomes
Melson tends to increase child support at high incomes, but reduce it at very low incomes
Cassetty increases support at moderate and high incomes
Fixed percentage tends to increase child support at high incomes, unless the guideline has a cap