Children and Divorce FAQs: Custody, Support, Parenting Time and More

The answer depends on what is meant by the term “custody.” People often confuse the terms “custody” and “parenting time.”

“Custody” generally means “legal custody,” which is the right to make major decisions in the areas of health care, education, religion and extracurricular activities, for a child. Legal custody can be joint or sole. Either both parents make decisions for their child together, or one parent has the sole right to make major decisions affecting a child alone.

“Parenting time” is how much time each parent is entitled to spend with a child. Parenting time can be divided in many different ways, including 50/50; 60/40, 70/30 etc.

Parents can agree on any parenting time schedule they choose. If they can’t agree to a parenting time schedule, a judge can decide that issue for them. Courts in most places today tend to default to 50/50 parenting schedules.

Parents can share 50/50 parenting time while one parent has sole legal custody of their child. Conversely, parents can share joint legal custody while one parent has the majority of the parenting time with a child.

While, in the past, “custody” and the majority of “parenting time” were typically granted to the mother, gender is now no longer a factor in the grant of either custody or parenting time.

Legal custody is the right to make major decisions for a child, typically in the areas of health care, education, religion and extracurricular activities. There are only two types of legal custody: joint and sole. Either one parent has the sole right to make decisions for a child, or both parents make decisions jointly.

Physical custody technically refers to who has possession of a child at any given time. Physical custody is also sometimes referred to as residential custody. Residential custody means the place where the child lives most of the time. A child can only have ONE residential custodian. A child’s residence determines the place where the child will go to school. The parent who is a child’s residential custodian typically can take advantage of certain tax benefits that are tied to having custody of a child.

If you and your spouse can agree on custody, you can absolutely have sole legal and primary physical/residential custody of your child.

If you and your spouse don’t agree on how legal and residential custody should be divided, a judge can decide that issue for you. The trend in most places today is to grant both parents joint legal custody and 50/50 parenting time with their child. Who will get residential custody of a child typically turns on which parent is in the school district in which the children are attending school.

It depends. If you and your spouse agree, you can absolutely share legal custody and have 50/50 parenting time with your child.

If you don’t agree, then a judge can decide custody and parenting time issues for you. While the trend today is to grant parents joint custody and 50/50 parenting time, the way a judge will rule depends on the facts and circumstances of your situation and the laws of the state where you reside.

Normally, no. While the exact answer depends on the laws of your state, in almost every state, children have no say as to which parent they live with. Parents and, if necessary, a judge, make that decision.

In some states a court can consider a child’s preference when determining which parent the child will live with if the child has reached a certain age (typically 14). However, courts will always consider the “best interests of the child” when determining where a child will live. A judge also has the right to override a child’s preference if the judge determines that doing so is in the child’s “Best interest.”

The “best interest of the child” is the legal standard by which courts typically make decisions regarding a child in all divorce and parentage cases.

Courts determine what’s in the “best interest of the child” in a divorce or parentage case by looking at a variety of factors. These typically include:

• The wishes of each parent

• The wishes of the child (although this is never a determining factor in itself)

• The child’s relationship with each parent and with their siblings

• How much time the parents spent taking care of the child in the past

• The mental and physical health of the parents and the child

• The child’s needs

• Any physical violence by a parent against a child or anyone else in the child’s households

• The willingness of a parent to encourage the child’s relationship with another parent

• Anything else the court deems relevant.

To get a complete list of the factors a court in your jurisdiction will consider when determining what’s in the “best interests of a child” it’s important to review the law in your particular state.

Parenting plans are court orders. If your ex violates your parenting plan you can file a petition to enforce the court order or a motion for contempt of court for violating a court order. If your ex is found guilty, the court may order a variety of sanctions, including:

• imposing fines,

• imposing penalties,

• ordering make-up parenting time,

• requiring your ex to pay your attorney’s fees, or, in extreme cases,

• imposing jail time.

Taking your ex back to court, however, is expensive and time-consuming. What’s more, if a judge doesn’t deem a particular violation to be “serious” enough, s/he may not impose any sanction at all. It’s always wise to consult with a divorce attorney in your area before taking your ex back to court.

You always have the right to represent yourself in court. However, custody cases can be extremely complex. They often involve a Guardian ad Litem (a lawyer appointed by the court for your children), one or more custody evaluations by a child psychologist, and evidence that’s gathered from the child’s schools, medical care providers, day care providers and others.

Custody battles are expensive and time consuming. However, unless you are a lawyer yourself, fighting for custody of your children without a lawyer is both very difficult and very complicated. If your spouse has a lawyer and you are representing yourself, you will be at a huge disadvantage in that fight. If you truly want to get custody of your children, you would be wise to hire a lawyer to represent you.

Typically, shared legal custody does not affect child support at all. Shared parenting time, however, does.

Every state has a formula for determining child support. In most states today, BOTH parents’ incomes are included in the child support calculation. (The income shares model.)

Whether the amount of time one parent has with a child affects the amount of child support that parent pays or receives, depends on how that particular state’s child support formula is calculated.

It’s also important to understand what TYPE of parenting time affects your state’s child support calculation. Typically, for child support purposes, parenting time is calculated by counting the number of overnight visits a child has with a particular parent. That number must reach a certain threshold before it will affect child support.

Child support calculations vary by state. Every state has its own guideline child support formula. Most states now base their child support formula on a shared income model. That is, BOTH parents' income factors into the calculation of child support. In the past, many states based their child support formula solely on the non-custodial parent’s income. However, most states have now gone to a shared income model.

Parenting time may affect child support. Depending on the state, the amount of time that a child spends with the non-custodial parent may or may not affect the amount of child support that the non-custodial parent pays.

Child support generally ends at age 18, or when the child graduates from high school, whichever occurs last, but not later than age 19. However, in some states child support continues until age 21.