A Legal Overview of Child Custody and Support in Divorce Cases

06/24/2015 12:55 pm ET | Updated Jun 24, 2016

This comment provides a very brief and incomplete educational overview of the law of child custody and support. Always consult an experienced attorney, family therapist, and advocacy professional, as appropriate, in all family law matters.

The legal concept of paternity is foundational for child support requirements and may additionally be important in inheritance situations. Paternity may be a matter of biological parentage, adoption, or created by a signed "acknowledgment of paternity" or a judicial proceeding. A voluntarily signed acknowledgment of paternity typically may be rescinded (cancelled) for only 60 days after the date of signing and subsequently only challenged in court on the basis of fraud, duress, or material mistake of fact. Some statutes contain a five year statute of limitations (time period in which to sue) to challenge or attempt to overturn the acknowledgment. Disestablishing paternity is frequently difficult. The details of paternity litigation, as well as the legal status of frozen eggs and related reproductive technologies, are beyond the scope of this brief commentary.

The overarching legal standard in situations involving children is "the best interest of the child." This standard invites a broad factual inquiry. Under this umbrella, couples in child custody contests present negative evidence concerning each others conduct. Private investigators and "self-help" investigations are not uncommon. A particularly despicable tactic is a false allegation of sexual abuse or domestic violence. Conduct that endangers the physical or emotional well-being of the child may impact not only custody and visitation but may be sufficiently severe to result in the termination of parental rights altogether. Termination of parental rights might result from, for example in an incomplete list, child abuse and neglect, child sexual abuse, or parental illegal drug use, alcoholism, or other incapacity.

To reduce both emotional tensions and the impact of this public airing of grievances on the children, many states require some form of mandatory confidential mediation in an attempt to reach a recommended out-of-court resolution of child custody issues. Be prepared to encounter a variety of negotiation tactics and blustering. Additionally, statutes may require a social study or other evaluation before a final custody order is entered. A guardian ad litem report may be requested, typically in the broad discretion of the judge. It is tragic when parents fight each other through their children.

Another sometimes unfortunate occurrence is when the custodial parent lies to the child about the other parent, producing what is called "parental alienation syndrome." In a milder form, parents may utilize gifts and privileges in an attempt to unfairly influence the children. Try to avoid doing this as children need to love and respect both parents as much as is possible under the circumstances. Children above a specified age (often 12) are allowed a voice in custody matters. Parental conduct that attempts to alienate the child from other family members has no easy legal or psychological resolution.

Grandparents and other third parties may seek custody or visitation rights. A preliminary question is if a state statute allows these individuals "standing" to be heard in court. The U.S. Supreme Court in 2000 in a splintered decision held that a Washington state statute that allowed "any person" to petition for visitation was too broad (Troxel v. Granville). The plurality noted that "the liberty interest at issue in this case - the interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this Court." Consequently, state courts often narrowly interpret "standing" questions, particularly to the detriment of step-grandparents and same-sex or unmarried partners. An unfortunate consequence is that a non-parent may be caring for a child that parents are unable or unwilling to care for, but the non-parent has limited ability to make health care or other decisions concerning the child. An experienced attorney must review the legislation and judicial decisions of a particular jurisdiction.

Many states follow a child support formula based upon the income of both parents, called the income shares model. Some look at a percentage of only the support obligated parent's income and expenses. The exact model varies and must be researched for a given state. The payment amount is also subject to any special needs of the child. Child support might be deducted directly from a paycheck and paid to a designated administrator. This creates a more reliable record of payments than direct payments to a parent. In an attempt to avoid support obligations, a non-compliant parent may frequently change jobs and move out-of-state. There is a federal Parent Locator Service. All states have enacted some version of the Uniform Interstate Family Support Act.

Collection of unpaid child support might be accomplished, in an incomplete list, through wage garnishment (money deducted from a paycheck), a writ of execution (seizing property such as a bank account), civil and criminal contempt of court, and obtaining IRS tax refunds under the Federal Income Tax Refund Offset Program, among other methods. Driver's licenses and occupational and professional licenses might be subject to suspension due to unpaid child support. Utilize an experienced attorney in these situations.

In some situations child support may extend past age 18 for a special-needs child or to provide for college education. Disobedience of custody, visitation, and child support orders may be punished by contempt of court proceedings. Be cautious about the effectiveness and enforceability of promises to pay money in the future. Better to create by court order a present trust fund administered by a reputable financial institution for a future expense such as a college education. State agencies that provide aid to families with dependent children may seek to collect unpaid child support and have a variety of state and federal tools to accomplish this. Consult with the appropriate office. Child support payments are not tax deductible; however, in the absence of an agreement, the parent that pays more than 50% of the child's actual support may be able to claim the child as a dependent on her or his income tax return.

Visitation rights are determined under the best interest of the child standard and might be subject to supervision in the discretion of the judge. In the interest of harmony and the child's well-being, couples may craft creative joint custody agreements subject to court approval. States are starting to enact model legislation related to military parents, the Uniform Deployed Parents Custody and Visitation Act
Courts have broad authority to issue temporary and permanent orders and modifications of previous orders regarding custody, visitation, and support. The typical requirement for a modification is a showing in court of significantly changed circumstances. Beware of oral informal understandings not approved or ordered by a court. These practices are frequently not legally enforceable and additionally may form the basis for a modification request in court. Conventional wisdom suggests that one take the legal and moral high ground and not engage in self-help actions. Document all violations of court orders and report them to your attorney or to the court. Do not allow intimidation or bullying; however, always be aware of the emotional state of the other person and attempt to objectively assess the likelihood of violent or rash actions. As necessary and without hesitation, involve the police or your attorney. Consider filing a motion for contempt of court for a continual violation of court orders. You may be able to obtain attorney's fees and court costs as part of a court's finding of contempt. Should a parent who is subject to a child support order file for bankruptcy, the bankruptcy court has no jurisdiction to stop the collection of child support or modify the support order.

Parental and third-party kidnapping is addressed by statutes such as the Uniform Child Custody Jurisdiction and Enforcement Act, Uniform Child Abduction Prevention Act, International Child Abduction Remedies Act, International Parental Kidnapping Act, and a variety of treaties under the Hague Convention. Experienced private investigators and legal professionals are required in these situations. There is a Passport Denial Program in some circumstances involving unpaid child support. Many tragic situations have no easy resolution but an experienced advocacy organization may be helpful.

This comment provides as very brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult experienced legal, family therapy, and advocacy professionals, as appropriate, in specific situations.