Two forms of custody need to be worked out as a part of a divorce when there are minor children: Legal and Physical Custody.
Legal custody can be granted to one parent or both, called joint custody. It specifies who is allowed to make important decisions for the child, including where they go to school, make medical decisions, and decide on religious upbringing. Legal custody is separate from physical custody, which determines with whom the children will live. Just as with legal custody, a court may grant one parent physical custody, or they may award joint physical custody.
Joint Physical Custody Does Not Necessarily Mean Equal Time
In a perfect world, joint physical custody would mean the children would spend equal time with each parent. However, in most cases, having a child live with each parent for exactly half the time is nearly impossible. When it comes to children, decisions are made which are in the child's best interest. One thing that is always in the child's best interest is some level of stability. Having children move back and forth between parents, especially if the parents do not live close to each other, can be highly disruptive to the children, their schooling, and their extra-curricular activities.
The amount of parenting time each parent may realistically have depends on where each parent lives, the parent schedules, the location of the child's school, their schedules, and activities. If it is not feasible for a child to live with one parent during the week due to proximity to the school or work schedules, that time may be made up with extra time on weekends and holidays. However, while joint physical custody would technically mean that each parent receives 50% of parenting time, it is often the case where a child spends more time with one parent than the other.
Joint Physical Custody Does Not Mean No Child Support
Regardless of legal and physical custody, both parents are financially responsible for their children. This means that one parent will likely be responsible for paying child support to the other parent to help offset costs. This is the case even when there is joint physical custody, and everyone's schedule allows for a 50-50 split in parenting time.
Child support is determined by a formula that considers several factors, including the income of each parent, the amount of parenting time, and how many children there are in the family. Even with joint custody, the parent with whom the children spend most of their time is considered the custodial parent, and the other is the non-custodial parent. The custodial parent will, in most cases, have most of the expenses for the children, so even with joint custody, the non-custodial parent must pay child support.
Alternative dispute resolution is a process where parents may work out the terms of their divorce outside of court, either on their own or with the help of a mediator. It is important to realize that child support is a very complex issue. It would be best if you talked to an experienced family law attorney before you agree to anything that will become legally binding. While both parents are financially responsible, that responsibility is not split 50-50 between the parents. The higher wage earner will be responsible for a greater percentage of costs. If you are the lower wage earner, do not get caught in a situation where you are convinced that since you are splitting physical custody, there is no need for child support, and costs should be divided in half. If you cannot get the support you need through mediation, it is time to bring in an attorney to speak for you and fight for what you are legally entitled to in the best interests of your children.
It is also important to remember that while child support orders are legally binding, they are not carved in stone. If you feel you are not getting your fair share of child support, or if you are unable to meet your obligations due to significant life changes, such as a serious illness or being laid off from your job, you may petition the court for a modification to the support order.
Call the Law Office of Anthony LoPresti if you have issues with child support or child custody. Mr. LoPresti has over 30 years of experience in family law and can help you navigate the complex areas of child support and custody.