Kids can complicate a divorce. Couples who divorce should always attempt to act in their children’s best interests. If a couple cannot agree on arrangements to care for their offspring, a court may intervene to ensure that the kids receive sufficient care. Properly caring for one’s son or daughter after a divorce requires the court or the couple to decide in advance who will care for him or her, each party’s responsibilities, and how often each parent can visit the child. These issues are ultimately dictated in custody, support, and visitation orders.
In the space below, we’ll clarify the differences between these concepts. If you are your spouse have kids, it is important that both of you fully understand what these terms mean.
Child Custody
Child custody pertains to which of the parents has custody of the couple’s kids following a divorce. The party with custody is responsible for caring for them and ensuring that their needs are met. The parents may share custody; one parent may be assigned sole custody; or a third party may be assigned custody. If the couple has multiple children, different arrangements may be made for each spouse and child.
Jurisdictions and courts differ in terms of how custody is determined. If the couple can come to a reasonable agreement on the matter, most courts will enter a consent order. Before entering such an order, courts will usually require mediation and may require the couple to attend parenting classes. The order should be comprehensive and include not only the times and dates that each parent will have custody, but also the terms, time, and location of the “handoff.” The parties should be as specific as possible.
Often, both parties to a divorce will have differences of opinion with respect to the custody of their kids. When parents are unable to come to an agreement, the court will resolve the dispute for them.
While different jurisdictions and courts have different statutory guidelines, courts will normally make the decision based upon what it perceives to be in the best interests of the children. Courts will consider common-sense factors, such as each parent’s resources, their relationships with their children, and the disruption to the kids’ lives if they are forced to move. The court may consider their opinions, but it is not dispositive of the issue.
Child Support
Not having custody does not absolve a parent from his or her obligations to care for their offspring. If a court orders payments, one party must make regular payments directly to the other parent. Payments made to the children do not count; payments are made to the custodial parent to compensate him or her for the other party’s share of expenses.
In deciding whether to order payments, a court will consider such factors as the each party’s net income and the lifestyle that the kids enjoyed prior to the divorce. As always, the children’s best interests are theoretically at heart.
Courts will generally allow the divorcing couple to come to an agreement with respect to child support payments. The spouses can waive their respective rights to receive payments altogether. However, both parties should ensure that they have the resources necessary to properly care for the children independent of the other spouse. If a court believes that a lack of child support will not be in the best interests of the children, it may not accept the couple’s agreement.
Visitation
Visitation is the son or daughter’s right to enjoy the company of the other parent. Even if sole custody is awarded to one spouse, the other party will usually have the right to visit at specified intervals. As always, if the couple can agree on the visitation schedule, and that schedule is consistent with the best interests of the kids, the court will usually enter an order that accommodates the parents’ wishes. If the couple cannot agree, the court will order either reasonable visitation rights to the non-custodial parent or assign a fixed schedule.
When non-custodial parents fail to pay child support, custodial parents often attempt to deny visitation rights. Generally, this is not lawful. While the laws vary between jurisdictions, visitation rights usually operate independently of payments. Custodial parents who are not receiving their court-ordered payments should contact their attorneys, as the judge may be willing to modify the orders.