Justia Legal Resources: Child Custody and Support Law Center

When parents part ways, each may fight hard to preserve their bond with a child and protect the child’s future. The Child Custody and Support Law Center provided by Justia discusses the challenges that can arise and potential solutions.

Approximate Read Time: 4 Minutes

Parents usually want to play a meaningful role in the lives of their children. This can be straightforward if the parents remain in a steady relationship as a child grows up, but challenges can arise if the parents part ways. Some parents develop a parenting plan and support arrangement on their own, while others need a court to decide these issues for them. Knowing what to expect from the legal aspects of this process can reduce the uncertainty and stress for a parent. The Child Custody and Support Law Center in the Justia Legal Guides provides general answers to some of the key questions that a parent may raise.

What Is the Difference Between Physical and Legal Custody?

Physical custody describes the right of a parent to have the child live with them. In contrast, legal custody describes the right of a parent to make major decisions related to the child’s upbringing. These might involve topics such as health care, education, and religion, among others. Some states now use more modern terms for these concepts, such as parenting time and decision-making.

What Does the “Best Interests of the Child” Mean?

The “best interests of the child” is the core legal standard that courts use to make decisions about child custody. This allows a judge to weigh a wide range of factors, often including the physical and mental health of each parent, the lifestyle of each parent, each parent’s relationship with the child, and each parent’s ability to provide for the child, as well as the preference of the child if they are old enough. Justia provides a 50-state survey on child custody laws that describes the factors in each state in more detail.

When Can a Parent Get Sole Custody?

Courts generally favor joint custody arrangements, but a parent may be able to get sole custody in certain situations. (However, the parent who does not have custody may have some visitation rights.) Sole custody may be appropriate when a parent has a history of child abuse or neglect, for example, or when a parent has a significant substance abuse problem. Sometimes a court may grant a combination of sole physical custody and joint legal custody, or vice versa.

Can a Grandparent Get Custody or Visitation?

A grandparent may be able to get custody of their grandchild if they can prove that the grandchild’s parents are unfit, or in certain other limited situations. Getting visitation rights may pose a less daunting challenge, although the grandparent may need to overcome a presumption that the parent’s judgment about a child’s contact with the grandparent is in the child’s best interest. Justia provides a 50-state survey that explains the circumstances in which each state allows for grandparent custody or visitation.

What Should a Parenting Plan Cover?

A parenting plan should cover aspects of both physical custody and legal custody in detail. For example, it should describe not only when each parent will spend time with the child but also how the child will travel between each parent. Parents may want to make plans for special occasions, such as holidays and the child’s birthdays. They also should outline a process for making decisions about the medical care that the child receives, as well as the school and extracurricular activities in which the child engages.

What Are the Benefits of Establishing Paternity?

Paternity provides a basis for a court to order a father to pay child support, and it may give the child access to health insurance coverage and certain government benefits via the father. Ultimately, the child can potentially inherit from the father. Establishing paternity also can help the father, who can use this finding to pursue custody of the child. Justia provides a 50-state survey on paternity laws that addresses this topic in more detail.

How Is Child Support Calculated?

Each state has developed its own guidelines for calculating support, although judges have the discretion to deviate from the guidelines in certain cases. Most states take an “income shares” approach to child support, which considers the combined income of the parents and the percentage of the combined income earned by each parent. However, some states take a “percentage of income” approach, which accounts only for the income of the parent who must pay support. Justia provides a 50-state survey that summarizes the process of calculating support in each state.

What Should a Child Support Agreement Cover?

In addition to the amount, timing, and method of payments, a child support agreement should address issues such as when the support obligation will end and which parent will claim the child as a dependent on their tax return. The agreement may provide specific allocations for certain types of costs, such as medical expenses or school fees. Parents should make sure to allow for the possibility of modifying the agreement. They may even want to arrange for a periodic review to see whether any changes are needed.

What Happens if a Parent Does Not Pay Support?

Failing to make support payments could result in the garnishment of that parent’s wages to account for the arrears, as well as the seizure of an asset or a tax refund. A parent also might face collateral consequences like the denial of a passport or the loss of a driver’s license. They probably still will need to catch up on payments even if they file for bankruptcy. Child support is generally not dischargeable under Chapter 7 or Chapter 13.

Why Might Child Custody or Support Be Changed?

Parents may want to modify a custody arrangement based on a change in the needs of the child or the health of a parent, or based on a change in a parent’s job or lifestyle that affects their ability to care for the child. A court also might order a change if a parent violates the existing order. Meanwhile, a court might adjust child support based on a change in custody or the costs of child care, or a significant change in the income of a parent.

Final Thoughts

Even when child custody or support does not spark a heated battle, parents may feel anxious about ensuring the best possible future for their child. Knowing the applicable laws and procedures can give them a better sense of what to expect, reducing the stress of the situation. While there is no substitute for consulting a family law attorney, the Child Custody and Support Law Center provided by Justia offers a useful starting point for consumers. Like the other Justia Legal Guides, it furthers our mission of making the law transparent and accessible to all.

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