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Custody, Visitation, and Child Support Basics

On Behalf of | Nov 28, 2023 | Child Custody, Child Support

There are many myths and misconceptions about custody, visitation, and child support. Unfortunately, many of the misunderstandings were created and have been perpetuated by legal professionals.

Generally speaking, “custody” refers to a person’s legal authority to make major decisions for and concerning a minor child. Custody decisions tend to be related to major decisions affecting the welfare of the minor child, rather than more ordinary day-to-day decisions such as what to eat, what to wear, and what time to go to bed. A parent with sole custody has the final say over major life-decisions for their minor child. Their authority has limitations. The sole custodial parent does not have the ability to decide that the noncustodial parent may not have their scheduled visitation. The law actually requires the custodial parent to foster and facilitate the relationship between the minor child and the noncustodial parent. The sole custodial parent is unable to micromanage the day-to-day household decisions that the noncustodial parent will make when the child is with them. The sole custodial parent cannot arbitrarily withhold child-related information from the noncustodial parent. The noncustodial parent will have full access to all child-related information, records, and calendars, and the noncustodial parent is able to attend all child-related events. Third parties, including teachers, coaches, counselors, and physicians, will likely seek input from the noncustodial parent about their observations and activities with the minor child, and the sole custodial parent cannot interfere with those communications.

Joint custody means that the parents will share decision-making authority. Unless the court order specifically gives one parent final say over one or more life decisions concerning their minor child, neither parent will have that tie-breaking authority in the event of a dispute. The law requires good, open communication between parents in order for them to share joint custody. So what do courts do? Every day judges give joint custody to some of the worst communicators on the planet out of fear that giving sole custody to one of the parents would result in alienation of the noncustodial parent. It’s kind of a mutally assured destruction theory, and appellate courts have blessed this approach even though a wide body of law says that communication is key to coparenting. So, the bar to having joint custody is very low. In joint custody situations where the parents don’t get along well, judges may implement a number of Band-Aid approaches, including adding a parenting coordinator and requiring the use of technology such as a co-parenting app to improve communication and reduce disputes. Joint custody can be very dangerous in cases where a minor child has serious medical issues, as one parent could choose to block treatment or medication to the detriment of the child.

Time is distinct from custody, but there is a point where the concepts blur. For example, if the parents live thousands of miles apart, the child is going to school in a place that is distant from one of its parents. This means that practically, one parent is going to be more hands-on with more time and responsibility for the child at least during the school year. Time, rather than custody, impacts child support. It is possible for parents to have equal time, yet one parent is the sole custodian or final-decisionmaker. Likewise, one parent may have the majority of time with the minor child and the other parent only see the child a few times during the year, yet they will share joint custody and make decisions together because they have a decent co-parenting relationship.

There are many factors included in a child support calculator, but child support is largely a function of income and time. It is a myth that the custodial parent may never be ordered to pay child support. If the parents share equal time, then the parent whose income is greater may be the child support obligor (payor), even if they are the custodial parent. If the parents do not share equal time, there is still a substantial child support discount available when the parent having less time has 121 or more overnights with a child during the year. This creates a perverse incentive for parents who are practically unable to ever have 1/3rd of the year with a minor child to fight for a court ordered time schedule giving them 121 overnights so that they can receive that discount. When a court order provides a parenting time discount and over time that parent does not actually exercise their visitation, the law allows the parent who is supposed to receive child support to file a motion and receive a judgment against the parent who unfairly received a child support discount based on parenting time that they did not actually exercise.

In some cases, child support is easy to calculate. In other cases, such as where a parent is self-employed or claims to be unemployed, calculating child support can involve extensive litigation and discovery. The law gives courts the ability to attribute income based on lifestyle in situations where the income of a parent is not easily determined. So, that unemployed parent who lives in a $750,000 house and has a truck, a sports car, and a boat, may find that they will be paying child support in an amount that is consistent with how much those things cost to purchase and maintain, rather than based on minimum wage.

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