Ideally the parents agree to what the best situation is for the children. There are many traditional and creative options to meet the family needs in raising the children. The best interest of the children should be the primary factor in making the decision, and there are many ways to meet the children’s needs. We work with parents by offering advice and recommendations based on our extensive experience.
Child Custody and Visitation
If the court has to make the child custody decisions, they will do so based on the “best interest” of the child. In making custody decisions, the court considers numerous factors including the happiness and welfare of the child, the child’s present or past living conditions, the important relationships for the child, which parent best supports the child’s relationship with the other parent.
Since we believe that the parents are in the best position to know what is best for their children and want to retain as much control over the ultimate parenting plan, we work hard to facilitate an agreement to avoid undue stress to the children or the parties. We also try to be creative in fashioning a parenting plan that works for each family’s unique needs.
Child custody arrangements can include any of the following arrangements:
- Legal custody – legal custody of the minor child belongs to both parents, providing for joint decision-making by the parents. Legal custody can be joint or with one parent.
- Shared physical custody – each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule. The aim is to have equal parenting time.
- Primary physical custody – Parents may share joint legal custody, while one parent has primary physical custody.
- Visitation schedule – When one parent has primary physical custody, the other parent has a visitation schedule that defines when the children will be with that parent.
Child support is based on a formula determined by the court. The factors in the formula include:
- Gross income of the paying parent
- Number of children the parent must support
- Ages of the children
The guidelines amount is presumed to be the correct child support amount, unless it is unjust or inappropriate. A court can deviate from the guideline amount when:
- The parent paying support has other minor children, and the amount of financial resources is limited.
- The parent paying support has extraordinary expenses, such as travel-related visitation expenses, uninsured medical expense, and so forth.
- There are other unusual circumstances.
Changes to a child support order are based on a substantial change in circumstances, and the change is in the best interest of the child. An example is a big increase or decrease in either parent’s income.
Each situation in which children are involved is unique and requires attention to meet the needs of each child. Once the parents decide to divorce, they must decide how they will share parenting time and who will make important decisions about the children. One important factor for high conflict cases is how the parties will communicate in a way that minimizes conflict. In the best situation, the parents together agree on the best possible arrangement for the children. If not, hopefully the situation can be negotiated between the attorneys or with the help of a mediator.
At Graff & Dawson, we try to minimize the negative effects of the divorce on the children. We advise our clients on how to speak to their children, usually to obtain the support of a mental health professional for the children and the parties. We always advise parents to shelter the children from conflict and try to show respect for the other parent. Despite the acrimony that may naturally exist for the parent, unless the children have been abused by a parent, the goal is for the children to have the most positive relationship with each parent. It is also important to convey to the children that both parties love them and to assure them that the divorce has nothing to do with them.
Legal custody defines who makes the major decisions about issues such as education, health, medical care, emotional development, and religion. Joint legal custody, in which the decision-making responsibility is shared by both parents, is quite common. Those decisions do not arise very often but when they do, they are important.
Physical custody refers to the actual time the child spends with each parent. Sometimes one parent is awarded sole or primary physical custody which means that the children will live primarily with the custodial parent. Then, the other parent is awarded visitation right. Alternatively, and more often, a family has a parenting plan or parenting schedule that outlines the time-sharing arrangement without defining one party as having custody and the other party as having visitation. In addition, a holiday and vacation schedule is usually detailed. Supervised visitation may be ordered if there is any concern over the child’s safety.
In considering custody arrangements, it is important to focus on the In considering custody arrangements, it is important to focus on the needs of the child and who can best meet those needs while continuing a relationship with both parents. Factors that are considered in custody actions include:
- The child’s well being
- Adjustment to family, school, and community
- Relationship with the parents
- History of abuse, drugs or abandonment
- Which parent has been the primary care-giver
In certain cases, parties do not wish to get divorce but are living separately for justifiable cause. In those cases, a party can file a Complaint for Separate Support. The court has the power in those cases to grant a physical separation, alimony, child support, health insurance, payment of expenses, and certain other financial orders. This option, not commonly used, provides protection when a party does not desire the dissolution of the marriage or final division of property. This option is often chosen by seniors who have no plans to remarry. It can also be chosen for religious beliefs, estate planning needs, and emotional reasons.