Child Support/Custody
| Author | Jeffrey Wilson |
| Pages | 745-751 |
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Historically, fathers had sole rights to custody. Since custody was connected to inheritance and property laws, mothers had no such rights. Beginning in the late nineteenth century courts began to award custody of young boys and of girls of all ages solely to mothers on the presumption that mothers are inherently better caretakers of young children. Most states followed this maternal preference and mothers almost always received custody. Eventually, many state courts found this preference to be unconstitutional, and gender-neutral custody statutes replaced maternal preference standards in forty-five states by 1990. Today, the custody arrangement is typically part of the divorce decree. The decree provides specifics as to where the child will live, how visitation will be handled, and who will provide financial support. Courts consider custody and child support issues as subject to change until the child involved reaches the age of majority. In many divorces physical custody is awarded to the parent with whom the child will live most of the time. Often, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform and consult with the noncustodial parent about the child's education, health care, and other concerns. In this situation, courts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent. A clear schedule with dates and times is often incorporated into the decree. Child support is usually paid by the noncustodial parent to the custodial parent. States have formulas to assist judges in determining the appropriate amount of child support.
Some states have a presumption that joint custody is in the best interest of the child, while other states have no provision for it. Advocates of joint custody claim it lessens the feeling of losing a parent that children may experience after a divorce and that it is fair to both parents. However, because of the high degree of cooperation joint custody requires, courts resist ordering it if either of the parents does not want it or if there is evidence of past domestic violence. Later problems regarding medical or education decisions concerning the child may develop necessitating long and lengthy court proceedings.
Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more children. In general, courts try to avoid split custody
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because it separates siblings, which is usually not considered to be in the best interest of the child.
Many states have adopted a standard that places primary emphasis on the best interests of the child when custody is disputed. Today, courts exercise their discretion in awarding custody, considering all relevant factors, including marital misconduct, to determine the children's best interests. The court may consider such matters as the wishes of the child's parents; the wishes of the child; the relationship between each parent and the child, and any other person who interacts with the child (including stepparents); the child's adjustment to home, school, community; the mental and physical health of all individuals involved; which parent will foster a positive parent-child relationship between the child and the other parent; who was the primary caretaker; the nature and extent of coercion, if any, by a parent in obtaining an agreement regarding custody; and whether either parent has complied with an order to attend domestic relations education if the state requires it. Domestic violence is considered not to be in the best interest of a child and in many states a parent's conviction for any domestic violence can weigh heavily against that parent's bid for custody.
In determining child support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty, although the primary caretaker of preschool children may not be required to obtain employment. All states have enacted some form of the Reciprocal Enforcement of Support Act. URESA is a uniform law designed to facilitate the interstate enforcement of support obligations. URESA allows an individual who is due alimony or child support from someone who lives in a different state to bring action for receipt of the payments in the home state. This measure circumvents such problems as expense and inconvenience inherent in traveling from one state to another in pursuit of support.
In response to federal legislation, state laws regarding child support payments have become more severe. State laws can require employers to withhold child support from the paychecks of parents who are delinquent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens against the property of those who owe support. Unpaid support must be deducted from federal and state income tax refunds. Expedited hearings are required in support cases.
Mediation is a centered resolution process assisted by an impartial trained third party to assist the parties in reaching an informed and consensual agreement. Many parents find the process useful in figuring out which custody and visitation arrangement can work best for them and their child. Mediation typically provides a non-adversarial setting in which to resolve the conflicts that arise over financial, parenting, and other issues. It allows the parents to control many aspects of the court process, rather than deferring to a judge. Additionally, parties who are able to reach an agreement in mediation can save significant court costs and attorneys' fees.
State law varies considerably with respect to divorce. States have differing residency requirements, property rules, and spousal support provisions.
ALABAMA: Both parents have an equal right to the custody of their children. Under Alabama law, a court may consider an award of joint custody, whereby the parental rights of both parties remain intact, with one parent as the primary custodian of the children and the other as the secondary custodian. Under this arrangement, both parents remain involved in the decision making responsibilities regarding the children, with each parent having "tie breaking" authority regarding certain issues, such as...
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