Child custody and child support

Child custody and child support In the past when a couple divorced, a fathers role was limited to financial support and the occasional visitation with his children.

Until the changes in the divorce laws during the 1970s, this state of affairs prevailed and for the most part, was accepted as the norm (Tender Years legal principle).

Custody battles were almost unheard of and the status of fathers as weekend Dads went virtually unchallenged.In the 1970s divorce laws in many western countries underwent a major overhaul. (The Tender Years doctrine lasted well into the 1960s and 70s when the US courts were forced to reject it due to the unconstitutional gender bias that is inherent in the doctrine.)One of the most significant changes was making both parents responsible for the care of children following divorce. This single change had tremendous implications for people with children getting divorced.While the financial implications of joint parental responsibility were overtly obvious, there were also important considerations regarding how children would be parented post divorce. For the first time, the courts recognized joint custody as a symbol of parents shared responsibility toward the care of their children. With this change, it became apparent that fathers were now recognized as functional parents and not just a source of financial support.An important fall-out of the changes to the divorce laws that formally recognized fathers as real parents, was the emergence of custody battles. As noted previously, they were uncommon up until this point. However, with the changes to the divorce laws, disputes over custody became a growing phenomenon. Overall, the changes in the divorce laws have done much to recognize childrens right to have both parents in their lives. It has also come a far way in recognizing fathers as being more than a meal ticket by advancing fathers custodial rights.

There are two main categories for child custody, legal and physical, which are then also assigned as either sole or joint. Legal custody deals more with the rights and responsibilities of a parent as opposed to where the child resides. It allocates who can make decisions about major issues in the childs life, such as education, medical and healthcare decisions and the childs overall welfare. An award of joint legal custody makes it necessary for the responsible parties to communicate and work with one another to share in these decisions. Physical custody addresses where the child will reside and for how long, and who will have the day to day responsibility and right to make necessary decisions regarding the childs daily activities and wellbeing.

The parent with physical custody is called custodial parent (or residential parent).

In such cases, a noncustodial parent often has a right of visitation. When joint physical custody is awarded, the child will spend time residing with both parents.

This does not mean that the time must be divided equally; rather it might be an arrangement explicitly spelled out by the parties or based on stated guidelines and shared payment of costs for raising the child. It presumes, of course, that both the mother and father are fit parents.

All states have adopted the policy that child custody arrangements and awards must be based upon the best interest of the child (BIC). Although the factors considered for determining this may vary from state to state. The ultimate goal of the best interests standard is to preserve parent-child relations. That is the current policy and goal of this area of lawIn all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Convention on the Rights of the Child, Article 3.1)When the parents cannot get along and agree to it, the court may award sole/joint physical and/or sole/joint legal custody. As said, in custody disputes the court is bound to make its determination based solely upon what is in the "best interests of the children.

While it is easy to state the rule, its application is much more difficult as it involves a weighing and balancing of the "totality of the circumstances."The case law suggests that under the "totality of the circumstances" rule, no one factor is determinative in making an award of custody. Determining what is in the child's best interest requires that consideration be given to many factors, such as:The effect of a separation of siblings;The wishes of the child, if of sufficient age;Abduction or abandonment of the child or other defiance of legal process;The relative stability of the respective parents;

The care and affection shown to the child by the parents;The atmosphere in the homes;The ability and availability of the parents;The prospective educational probabilities;The possible effect of a custodial change on the children;The financial standing of the parents; etc.

Recently, the legislature has mandated that the court consider the corrosive impact of domestic violence and the increased danger to the family upon dissolution and into the foreseeable future. Where either party alleges that the other party has committed an act of domestic violence against the alleging party or a family or household member of either party, and the allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child. Courts view each of the factors independently, as part of the "totality of the circumstances.

Generally, when one parent is granted sole physical custody, the other parent will be awarded visitation, which includes weekends, some holidays and vacation time and other occasions, as applicable.

Courts reserve the right to modify custody arrangements when the circumstances call for it.

Joint physical custody, or joint parenting as its also known, can offer several distinct advantages, both for parents and children.

For separated fathers, it means they can be far more involved with their children, seeing them on a regular, extended basis every week. Moreover, it also means that neither parent is carrying the entire burden of parenting while the other is considered absent.

With standard contact orders, one parent has the majority of responsibility for the day-to-day routine, while the other usually the separated father sees the children at the weekend.

Some recent research has determined that when children have experience of joint custody they have better relationships with both parents and are more satisfied with their lives.

Its also shown that even when theres strong animosity between the parents, joint custody works well for the children.For shared custody to work, one have to live fairly close to his/her ex, for their children to continue to attend the same schools, see their friends, and so on.

This indeed can create social problems for the parents, since proximity means an increased chance of contact with your ex-spouse.

Also, if the job or circumstances change and ex spouse has to move elsewhere, then the change from joint physical custody to visitation (contact) can create emotional problems for their children.

In other words, by its nature there has to be a certain amount of flexibility in the plan.In April 2008 the British senior judge Mr. Justice Coleridge, responsible for family courts across South-West England, shortly after having passed judgment in the divorce of Sir Paul McCartney from Heather Mills, in a speech to British family lawyers launched a devastating attack on the fractured and fragmentizing British society caused by family breakdown and divorce. He stated that Family breakdown is a cancer behind almost every evil affecting the country.Mr Justice Coleridge blames youth crime, child abuse and drug addiction on the meltdown of relations between parents and children.He warns that the collapse of the family unit is a threat to the nation (UK) as bad as terrorism, crime, drugs or global warming.The judge condemns families with a mother and several absentee fathers. He said: Single parents often do a fantastic job, but a great many, perhaps through no fault of their own, do not. A large number of families now consist of children being brought up by mothers who have children by a number of different fathers, none of whom take any part in their lives or support or upbringing. These are not isolated, one-off cases. They are part of the stock-in-trade of the family courts.Facts from the Netherlands From a total of 3.2 million children in the Netherlands between the ages of 0 and 18 years old, an estimated 1 million children have already experienced the divorce or separation of their parents. This has resulted in a situation where it is now estimated that 1/3 of all Dutch children are from broken families.Most of these Dutch children of divorce and separation (an estimated 85% to 90%, i.e. 850.000 to 900.000 children) grow up in mother-only care and residency in single-parent mother-headed families with their fathers being non-resident and living elsewhere.This results in a situation in the Netherlands where an estimated 500.000 Dutch children of divorce and separation grow up completely fatherless (15% of all Dutch children), while another 500.000 Dutch children of divorce and separation grow up with marginalized fathers (another 15% of all Dutch children).Situation in other European countries

The situation of 30% of children left fatherless or with marginalized fathers after parental divorce/separation is prevalent in most European Union countries, including the new East European members.

The incidence of fatherlessness tends to be still somewhat lower in Southern European countries and higher in Northern European countries.

The dominant European family legislation and family court practice regarding court ordered parenting arrangements after parental separation/divorce, is still a combination of joint legal custody legislation combined with sole physical custody.

However, there is a distinctive shift in the different national family law systems of the countries in the European Union. Following the strong previous family law tradition of single care, residency and custody orders and practices favoring mothers during the second half of the twentieth century (as the only meaningful parent after divorce), there is nowdays a distinctive shift towards more equal and shared parenting arrangements and keeping both parents involved in the post-divorce care and residency arrangements for their children.The first mainly symbolic steps of acknowledging the importance of both parents in childrens lives were based on Article 8 (Article on family life) of the European Convention of Human Rights (ECHR).

As a result, a post-divorce presumption of joint legal custody was put in effect in family law since the late nineties of last century (1996/1998) in some EU countries (Germany, Belgium).The present general European trend within family law reform in European countries is, however, most definitely pointing strongly in the direction of moving away from sole physical custody and care legislation with court practices tending towards joint and equal physical custody and care legislation. Both trends recognize the importance of keeping both parents and extended families actively involved in childrens lives after parental divorce/separation.Child supportAll international and national child support regulations recognize that every parent has an obligation to support his or her child. Therefore, both parents are required to share the responsibility for their child(ren)'s expenses.Child support refers to the financial support of children and not other forms of support, such as emotional support, physical care, or spiritual support.The amount of child support may be set on a case-by-case basis or by a formula estimating the amount thought that parents should pay to financially support their children.Many jurisdictions consider multiple sources of information when determining support, taking into account the income of the parents, the number and ages of children living in the home, basic living expenses and school fees.The duration of support orders varies both by jurisdiction and by case. Requirements for support typically end when the child reaches the age of majority.Some countries and states have provisions that allow support to continue after the age of majority if the child is enrolled as a full-time, degree-seeking post-secondary student (e.g. B&H).

In US, parents cannot agree in their separation agreements to an amount of child support that will fall below the minimum required in the state (provided in child support guidelines of each state).

Both parents have an equal obligation to pay child support.However, often the obligor is a non-custodial parent. The obligee is typically a custodial parent.

Where there is joint custody, the child is considered to have two custodial parents and no non-custodial parents, and a custodial parent with a higher income (obligor) may be required to pay the other custodial parent (obligee).

Different views in US on whether a parent has an obligation to pay for a childs college education.

Each state has specific child support enforcement agencies that assist custodial parents in obtaining and enforcing child support orders.

Child support orders cannot be modified unless there is a substantial change of circumstances since the original order.