Divorce is never easy. Seeing a relationship unravel before your own eyes can take its toll in many ways. Often this process can be hardest on the younger members of a family. When going through a divorce it's important to remember that your kids need your support and assurances. No matter how bad it seems, it's important to put aside your own difficulties and focus on helping your kids manage this transition as smoothly as possible. So that they come out stronger and relatively unscathed. In this article I'll be focusing on discussing Child Support in financial and legal terms instead of emotional terms. I'll also cover the topics of custody and visitation because they are also related to how child support is calculated.
Custody and visitation issues top the list of concerns for couples involved in a divorce. For many years to come the now ex-spouses must continue to plan their lives together and negotiate the dozens of choices that come up when raising children. Judges will go to great lengths to get the two parties to make their own decisions and solve their own conflicts.
When two parents separate, it is usually determined that a child will primarily reside with one of the separated parents. In those situations, the parent keeping the child will incur most of the child-related expenses: food, accommodation, clothing, groceries, utilities, transportation, school, lessons etc.
To reflect that inequity, the common law has established that each parent has a legal obligation to support their child, financially speaking. No law has made any rules regarding the fulfilling the emotional needs of the child.
It is typical practice to establish one parent as having primary custody. That parent is referred to as the 'custodial parent'. The other parent is referred to as the non-custodial parent. Regardless of the schedule, in most cases the parents are required to make important child care and upbringing decisions together.
A strictly legal definition of child support is "Periodic money payments payable by a non-custodial parent, to the custodial parent, for the care of his or her minor child." For those who are unfamiliar with law speak, custodial parent is the one keeping the child while non custodial parent will be the one making the periodic payments.
For the parent who does not have the child living with them, this means equally or fairly contributing to their child's expenses and needs. This is done by requiring that parent to make monthly or other periodic payment (rarely a lump sum or annual payment) to the other parent as a contribution towards the expenses of raising a child.
Initially, costs were split fifty-fifty between the parents. But over time complex systems have been established to determine the payments that need to be made keeping in mind the income of both parents and the number of children.
There are unique rules to deal with children who are no longer minors, and have special or extraordinary needs or expenses, and when a child or the children spend close to equal time with, and maintain residence in the homes of, both parents.
If the parties cannot decide upon a support amount and payment frequency, child support is set by the court and will be calculated based on the California State Guidelines and on any data that the parties may present. The State Guidelines are designed to be fair and equitable to the parents and more importantly, be in the best interest of the children.
California law allows either party to apply for a change in child support payments. The law requires that before a support change will be considered by the court, a material change in the status of the parties or the children must have occurred. This can include a change in the financial status of either party (for better or worse) or a change in the needs of the children such as education costs or an illness.
In California, any couple who cannot agree on custody or a visitation schedule is obligated to participate in and complete a counseling program prior to their disagreement being taken up by the court.
Judges that are forced to make custody and visitation decisions will base their rulings on evidence provided by the spouses and by professionals, such as psychologists, family service representatives or doctors. The judge will also take into account any history of child abuse, drug or alcohol addictions and any protective orders that may have been issued to help determine what is in the best interest of the child. However, the courts in California tend to grant joint custody, where the parents share in the day to day care and in making decisions regarding upbringing.
Based on the above factors, most spouses come to an agreement regarding custody and visitation schedule for their children rather than depend upon a judge to decree what is best. This is an area where professional legal assistance is a must. As a family law attorney I offer an initial free consultation, where you can get you questions answered.
Child support as an issue is so important that the right to child support and the responsibilities of parents to provide such support has been internationally recognized. In fact, during the 1992 UN Convention on the Rights of the Child, a binding convention was signed by every member of the UN declaring that "the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children". The convention further asserted that the primary responsibility to provide such for the children rests with their parents.