DIVORCE WITH CHILDREN
PAYING FOR THE CHILD’S EXPENSES – Both parents have a duty to support their child. The duty is ordinarily enforced through an award of child support from one parent to the other. To calculate child support, the Court will usually follow a process in the Child Support Guideline Statute. The process requires the Court to consider the gross earnings of each party, subject to certain specified deductions, and to apply those earnings to a chart. Child care expenses, child health insurance premiums and substantial overnights are incorporated into the chart, as well. Alimony paid is considered income to the receiving spouse and is a deduction from the income of the person who pays. Each parent’s percentage of support is then calculated and a support figure is generated. The Judge is then permitted to vary the support amount based upon a series of factors directed to circumstances existing within that particular family. When it is reasonably available, payment of health insurance premiums will be required, and the cost of uncovered medical, dental and prescription needs will be allocated.
Except in special circumstances, an Income Deduction Order will be entered that will require the employer of the parent paying child support to deduct the support from the paying parent’s paycheck and send it directly to a central depository, which will keep track of the payments and forward the funds to the receiving parent. Failure to pay child support when it has been ordered is enforceable by contempt and willful failure to pay may result in a person being jailed. In certain circumstances, a party may be ordered to maintain life insurance or provide other security to ensure the continued payment of support.
It is against the law to deny a parent to spend time with a child because that parent has not paid child support. It is equally unlawful to fail to pay child support because the other parent denies access to the child. As the saying goes, “Two wrongs do not make a right.” Under either set of circumstances, our statutes provide methods for enforcement of Court Orders.
MAKING DECISIONS – In most circumstances, a Judge will Order a “shared parenting plan” for the minor child. This means that both parents have a right to have full information about their child, and to share in making major decisions for the child. Just because a child lives primarily with one parent does not give that parent greater say in the child’s upbringing.
A Judge may determine that one parent or the other should have the ultimate responsibility to make decisions in a particular area of a child’s life if the Judge finds that it would be in the best interest of the child to do so.
If the parents, after good faith efforts, are unable to agree about a major decision affecting the child, (i.e., the parents cannot agree which school a child should attend) the court, upon motion, may decide the issue or designate the parent who will make that decision.
Sole parental responsibility may be awarded to one parent when a shared parenting plan would be detrimental to the child. Evidence of child or felony spousal abuse is a consideration, and, depending upon the degree of abuse, may be a presumptive factor in determining whether shared or sole parental responsibility will be awarded. A Court will also consider as evidence the fact that a person has provided false information in a domestic violence proceeding.
LIVING ARRANGEMENTS – When parents separate or divorce it is important that both parents maintain contact with the child. Both parents are entitled to equal consideration notwithstanding the age or sex of the child. After separation or divorce, if a parent wants to move and the move would materially interfere with the other parent’s contact with and access to the child, there are a series of statutory factors that a Court will be required to consider before issuing an Order that a permits a parent to move with the child. It is possible that a parent will be denied permission to move with the child. This may occur if the other parent has been an involved parent, if the move is not in the best interest of the child, and/or if a substituted schedule of contact with the child may not be sufficient to maintain the parent’s relationship with the child.
CONTACT/TIMESHARING – Unless contact would be detrimental to the child, both parents are entitled to spend time with the child. In most circumstances, a timesharing schedule will be established that will designate which days and nights will be spent with each parent. This schedule will usually include specific holiday planning, vacation planning, and a method for modifying the schedule when the need arises. Overnight visitation may not be denied based upon the age or sex of the child.
Ordinarily, each parent should have telephone contact with the child when they are with the other parent. Furthermore, many agreements provide that if a parent exercising timesharing is going to be away from the child overnight, the other parent will be given the opportunity to take the child for that night before any other person is provided that opportunity.
If a parent wrongfully deprives the other parent of his or her time with the child, the Court may enforce that other parent’s right to time with the child, and may impose a large variety of sanctions.
WHAT IF ONE PERSON ALREADY HAS A CHILD? – Unless a person has adopted the child of the other, he or she does not obtain either parental rights or responsibilities to that child. Therefore, if a couple divorces, a stepparent will not have a right to contact with his or her stepchild, nor will a stepparent have an obligation to support the stepchild, even if he or she voluntarily has done so during the marriage. If a person has adopted a stepchild during the marriage, then that stepparent is the child’s parent in all respects and will be given the same consideration for parental rights and responsibilities as would any natural parent.