Child Support and Custody: What does all of the legal jargon mean, and how can parents successfully navigate through potential landmines of conflict?
Splitting up when you have children means that you rarely ever say “goodbye” to your former partner. It means that you’ll need to figure out a whole new partnership: One that works for your child’s best interests. You will probably share child custody, pay or receive child support regularly, and have to juggle schedules.
What is the Difference between Legal Custody and Physical Custody?
Whether you involve the courts or not, it’s important to understand that there are two types of custody: “Legal” and “physical” custody. Although it’s typical for parents to share both, it’s also common to have both parents share legal custody and one parent have physical custody.
“Legal custody” is the power to make important decisions for the child. These include educational, medical, legal, and religious decisions. Most parents are able to discuss and arrive at a solution. If they have shown that they are unable to have productive discussions and come to a decision together, the judge may choose to award one parent sole legal custody.
“Physical custody” refers to who the child lives with. If a parent has “primary physical custody,” it means that the child lives most of the time with that parent. Some courts have moved away from this terminology because it infers that one parent has more physical custody than another. Instead, courts may refer to parents having “shared physical custody” if they both have parenting time.
When parents separate, they come up with a schedule for when the child will spend time with each parent. This is called a “parenting schedule” or “visitation schedule.” There’s no legal difference between the two terms. “Visitation” is the traditional term, and “parenting time” reflects the understanding that parents do not “visit” with their children—they parent them.
How Does a Judge Determine Visitation?
If the parents don’t agree on a parenting schedule, then the judge will have to make a decision. Judges evaluate what is in the child’s “best interests” when determining where the child lives, and with whom. There are many factors that support a child’s best interests, including: a stable home life, continuing in the same school, having a connection with extended family, and a positive relationship and interactions with other household members.
The judge will also consider whether a parent has been abusive to the child or their partner, abuses controlled substances, or has made poor parenting decisions in the past. In those kinds of high-risk scenarios, one parent will likely be awarded sole legal and/or physical custody. The parent without custody may be awarded supervised visitation. “Supervised visitation” requires that another adult be present when that parent is with the child. The other adult can be a grandparent or friend of that parent, or a third party who is paid to supervise. Supervised Visitation Centers provide a neutral and safe location for these kinds of visits.
How is Child Support Calculated?
Every state has a unique formula for calculating child support. To find your state’s calculator, search for “child support calculator” in your state and choose the calculator on a trusted site, one that is published by your state (.gov site) or your state’s Legal Aid site (click here to find yours).
Don’t be deceived by the simplicity of the child support calculators: There are intricate rules about what income and expenses are included in a child support calculation. If you or the other parent has a complicated financial situation, it may be wise to consult with an attorney. In particular, if the other parent is self-employed, it’s important to get an attorney on your team if you suspect they are hiding income behind their self-employment status.
Tips for Co-Parenting
Most parents who aren’t together still co-parent together. This means that many of the problematic patterns that led the parents to separate will still appear. Parents should develop a co-parenting system that minimizes arguments and unhealthy conflict.
Easier said than done.
If you have trouble keeping your cool when talking to your ex, maybe in-person communication isn’t the best way for you two to put your child’s interests first. Try limiting potential areas of disagreement to email or text, or a phone call after the children are in bed. It’s not helpful to bring up big topics of contention in front of the children during your parenting exchange.
Be careful not to ask children to bring messages to your spouse. Using them as the go-between puts them in a difficult situation. Even if it’s something simple like communicating the date of the next parent-teacher conference, the message can get forgotten or miscommunicated, which will cause confusion and hurt feelings.
Another way to avoid communication conflict is to use digital tools to get on the same schedule. This can be as simple as setting up a shared calendar through Google Calendar. Parents that need a more robust system might be interested in schedule-sharing programs like the Cozi app or Our Family Wizard.
Remember that every family is different. A system of communication that works for one set of co-parents may fall flat for your family. Likewise, every custody and support arrangement depends on different circumstances, and has a variety of results. That’s where family law attorneys can bring their experience to bear on your situation. They have the experience to analyze the range of likely custody and support outcomes for you.
Rebecca G. Neale is licensed to practice law in the Commonwealth of Massachusetts and New York, and admitted to the Massachusetts District Court and New York’s Third Department. She has years of experience advocating for clients in the courtroom and the conference room, and enjoys helping people navigate some of the most difficult chapters of their lives.
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