Child Custody
Child custody and visitation can be emotionally charged and one of the biggest sources of conflict in a divorce or separation. Even with all the emotion that surrounds how and where children will be raised, many parents going through a separation or divorce are able to come to a fair and mutual agreement about custody and visitation without going to court.
With the assistance of a family law attorney, issues can be resolved with a legal agreement (i.e., a parenting agreement) between the parties. This agreement usually forms part of a larger separation agreement that covers other issues as well, such as child support or the division of property. A separation agreement can be much more detailed than a court order, and more tailored and sensitive to the particular needs of the family.
If parents are able to compromise and reach agreement about co-parenting, an option that gives both parents a major role in the child's life is joint custody. With joint physical and legal custody, the child usually resides with both parents for a significant amount of time during the year. Both parents are informed and make decisions about the education, health and welfare of the child.
Other options are:
Sole physical and legal custody - The parent with whom the child lives makes all decisions, including health, educational, and residential decisions, but the other parent may still have visitation rights.
Primary physical and joint legal custody - The child resides with one parent the majority of the time and the other parent may have visitation rights. Both parents are informed and make decisions about the education, health and welfare of the child.
When possible, it is best to at least attempt to reach agreement on child custody without going to court. Another option to resolve custody issues is through mediation. For a holistic, cooperative approach to mediating all outstanding issues, including child custody, see our Green Divorce page.
It is not always possible or even advisable to avoid litigation (having a judge decide your case in court). In families where substance abuse, alcoholism, spousal abuse, or child abuse is occurring, it may be best for the court to intervene. Such behaviors raise serious safety issues and should be disclosed to your attorney immediately.
Child Support
The North Carolina Child Support Guidelines are based on economic data which represent adjusted estimates of average total household spending for children between birth and age 18, excluding child care, health insurance, and health care costs in excess of $250 per year. Expenses incurred during visitation are not factored into the guidelines.
Different worksheets are used for the calculations depending on how much time the child spends with each parent. Worksheet A is used for parents where one parent has primary custody of the children. Worksheet B is used when one parent has at least 123 overnights with the children each year. Worksheet C is used when one child is in the primary care of one parent and another child or children are in the primary care of the other parent. NOTE: Child custody and child support are related in the sense that the custodial situation determines which worksheet to use. However, it is important to understand that custodial rights are NOT based upon whether or not a parent is paying child support or the proper amount of child support. This means that you may not withold visitation with the children from a parent who is not paying child support.
Rarely does the Court deviate from the North Carolina Child Support Guidelines. However, the Court also takes into consideration variables such as childcare, tutoring, health insurance premiums, counseling and other child-related expenses. When there are other factors to be considered, the Court may set aside the Guidelines.
The guidelines assume that the parent who receives child support will claim the tax exemptions for the child. If the parent who receives child support has minimal or no income tax liability, the court may deviate from the guidelines and consider requiring the custodial parent to assign the exemption to the supporting parent.
Child support payments continue until a child's minority ends (age 18). However, there are three instances in which child support could continue past age 18:
• If at age 18, the child has not yet graduated from high school (and is not otherwise emancipated).
• If the supporting parent agrees, in writing, to continue support past age 18 (to assist a child during college, for example); or
• If the child, at age 18, is not mentally or physically capable of self-support.
To modify an existing child support order if the order is less than three years old, proof must be presented to show a substantial change of circumstances. A child support order that is three years old or older, a difference of 15% or more between the amount of the existing order and the amount of child support resulting from the guidelines based on the parents' current incomes and circumstances is considered a "substantial change of circumstances" warranting modification.
It is important to understand that both parents owe a duty of support to their children. For children that are living with third parties such as grandparents, aunts/uncles, or family friends, both of the child's biological/legal parents should be paying child support. When children are forced to become dependent on government assistance, it is common for the County to seek child support from both parents as reimbursement for the governmental support of the children.
Paternity is also an issue directly related to child support. If you are unsure whether you are the father of a child and you are being asked or ordered to pay child support, you may need to file an action to establish paternity.
Child custody and child support are some of the most important issues facing a separated family. The experienced family law attorneys of Haas & Associates, P.A. will guide you through the legal process to ensure that your children's needs are being met. Commitment and responsiveness to our clients' needs are our top priorities. Please contact us at 1-866-783-9669, or via our online contact form, to get more information and schedule a consultation with one of our attorneys.