CHILD SUPPORT/VISITATION
Can my visitation rights be withheld if I don't pay my child support on time?
Visitation cannot be withheld because of non-payment of child support; conversely, the non-custodial parent cannot withhold child support because visitation has been denied.
Who will win custody of the children?
The fact is that in 90% of cases in the United States where parents have decided they will not parent together, the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents, children, the extended families, and even for professionals involved in their cases.
Because of the high potential that a custody battle can have long-lasting negative impact on children, most states have instituted as many safeguards against that possibility as possible. In general, all child custody decisions are to be based on "the best interests of the children." In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. Safeguards in place include:
- In many states, parents with a child custody dispute are required to attempt mediation of the custody issue before a contested custody case may go further
- In some states, in any contested custody matter, the court must appoint a guardian ad litem, an attorney whose role is to represent the best interests of the child during the course of litigation
- Sometimes the courts order "custody evaluations" which are investigations and reports from impartial professionals with specific training for the task, usually social workers or mental health professionals
- In some states, depending on the age of the children, courts allow children to have some input into their custody decisions
- All states have a long list of statutory factors that the court must take into account prior to making such determinations
What happens when a custody or visitation order is violated?
The consequences for violating child custody and visitation orders almost always correlate to the magnitude of the violation. For instance, if a parent is a few minutes late in arriving to pick up a child at the time for exchange, even though it may happen repeatedly, it is likely there will be little or no consequences for this minimal violation. For the most part, a few minutes difference in arrival time will not endanger the children in any way. On the other end of the spectrum, of course, is the situation in which a parent fails to return the children at the designated time and disappears with them with no trace for days, months and sometimes even years.
At the lower end of the spectrum of violations, most states do not provide much assistance to parties trying to force compliance with a court order. Often a parent, frustrated by such behavior from the other parent, may merely have to have ready a 'plan B' that insures the safety of the children while allowing the parent to minimize the inconvenience of the repeated tardiness or other minor violations.
At the upper end of the spectrum, depending on how long the children are gone and whether the parent has crossed state lines, and at even the middle of the spectrum, the full force of both state and federal law enforcement is enlisted to protect children and penalize offenders. It should be noted that the violation must demonstrate a criminal intent to withhold or conceal the child from a party with the right of custody before law enforcement considers a crime to have been committed.
All states have procedures for seeking enforcement of a court order through contempt proceedings. These procedures generally require the assistance of an attorney. Most courts look very unfavorably upon violations of its orders, typically providing a remedy for the other parent. Courts have been known to alter a custody or visitation schedule completely in response to a parent's significant or repeated violation of their order.
How is child support determined?
Prior to the institution of child support guidelines, child support determinations were entirely within the judge's purview, based on only two factors. The first factor was the level of ability for the obligated parent to pay. The second related to the needs of the child. This situation has changed dramatically over the years, with changes gaining momentum from federal legislation that required more uniformity among the states in exchange for federal child support funding.
Now all states have adopted child support guidelines that must be applied in divorce and custody cases in which minor children are involved. States have, for the most part, made a determination that every child has the right to the support of both parents while at the same time, parents' rights and needs are to be taken into consideration as well. Based on these principles, states have adopted formulas for determining what the level of child support should be. Generally, these guidelines are based on a percentage of the payor parent's gross income. Of late, more states are taking into account the income and standard of living of both parents, and the actual percentage of time that the children spend with each parent. Most states also provide that the formulas are presumed to result in a correct amount; however, states have also adopted procedures for deviating from the guidelines.
Because of child support guidelines, a determination of child support in a particular case generally requires only entering the parties' incomes and the percentage of time spent with the children into the formula to arrive at a solution. In other words, current state of the law does not provide much room for disputes about who should pay what amount of child support. Admittedly, the amount of time that children spend with each parent often does come into consideration, and some parties find themselves in the middle of a custody or visitation battle that may actually be a child support battle.
