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Decisions regarding the custody, visitation and support of your children will be among the most difficult to make, and yet one of the most important, when you are getting a divorce. Your children's future well-being will directly depend on your ability to reach a reasonable agreement with your spouse. This kit is designed for use in conjunction with your settlement/separation agreement.

This kit includes the following:
  • Child Custody Questionnaire
  • Custody and Visitation Worksheet
  • Child Support Information Sheet
  • Child Custody Worksheet and Instructions

Protect Yourself and Your Rights by using our professionally prepared up-to-date forms.

This attorney-prepared packet includes:
  1. General Instructions
  2. Information
  3. Child Support, Visitation and Custody Kit for your state
State Law Compliance: This form complies with the laws of your state
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.








C



Child Custody, Visitation and 
Support Kit



This Packet Includes:
1.    General Instructions
2.    Information
1.   Child Custody and Visitation
1.1   Child Custody and Visitation Information
A.   General Overview
B.   Laws of Child Custody and Information
C.   Types of Custody Arrangements
D.   Visitation
E.   Modification of Custody and Visitation Arrangements
F.   Factors for Consideration
G.   Childs Bill of Rights
H.   Child Custody Jurisdiction
1.2   Child Custody Questionnaire Instructions
1.3   Child Custody and Visitation Worksheet Instructions
1.4   Child Custody Questionnaire
1.5   Child Custody and Visitation Worksheet
2.   Child Support
2.1   Child Support Information
A.   General Overview
B.   Laws of Child Support
C.   Factors for Consideration
D.   

Enforcement and Jurisdiction of Child Support
E.   General Child Support Guidelines
2.2   Child Support Worksheet; and
3.   Child Custody, Visitation and Support Kit



General Instructions
Child Custody, Visitation and Support Kit

    Child Custody Questionnaire



   The Child Custody Questionnaire is designed to assist you in understanding what factors are pertinent to your discussions regarding custody and visitation. Two copies of this questionnaire should be made and both you and your spouse should honestly and completely answer the questions. Although the questions relate to one “child,” if you have more than one child please include answers relating to each child on the form. Many of the questions relate to which parent, in general, currently provides the primary care for the children. Your answers will be the basis for your custody discussions with your spouse and will allow both of you to focus on the relevant issues.

   Child Custody and Visitation Worksheet

   With all of the various factors which influence the decisions regarding child custody firmly in mind, you and your spouse should be ready to approach the actual mechanics of custody and visitation arrangements. The Child Custody and Visitation Worksheet sets out the most common questions which arise in custody situations.




Information
Child Custody, Visitation and Support Kit

General Overview

Each year, over 1 million children experience the divorce of their parents. Too often, when children are part of a divorcing family, a devastating legal battle is waged over the right to retain custody. The emotional and psychological scars that children receive in these fierce custody wars are perhaps the most tragic results of divorce. Unfortunately, in too many instances, children become pawns in a destructive game of revenge and vindictiveness between their divorcing parents.

If you and your spouse have children, the decisions that you will face regarding their custody and visitation will perhaps be the most difficult of the entire divorce process. But in many respects, they may also be the most important. Your childrens future well-being will depend directly on your ability to come to a reasonable agreement with your spouse regarding custody and visitation. If you have children, you must understand that your divorce will not end the relationship between you and your spouse. You will still both continue to be parents, even though you will no longer be wife and husband. Because of the necessity for this on-going relationship, it is very important to keep your settlement discussions regarding your children on a calm and peaceful level.

In many cases there is a temptation to allow personal animosity toward your spouse to enter into the discussions regarding your children. If you personally no longer wish to live with your spouse, you may feel that you dont want your children to live with him or her either. There may also be a tendency to attempt to vent your frustration at the prospect of divorce through a battle over custody. For your childrens sake, you must make every effort to keep your discussions about custody on a reasonable and mature basis. Your children will have to live the rest of their lives with the results of you and your spouses custody decisions.

Laws of Child Custody and Visitation

Determining which parent is to have custody of a minor child is one of the most difficult decisions that you will encounter in your divorce. Judges and legislators have also grappled extensively with the difficulty of this decision. In recent years, certain legal trends have emerged regarding how an impartial judge might decide which parent is to be awarded custody of a minor child. These relatively new legal doctrines are a clear break with many of the traditional methods which were previously used to determine custody.



In the past, there were several legal doctrines which governed child custody decisions. Most notably, there was a very strong presumption that a mother should be awarded custody of any child. This presumption stemmed directly from the traditional, though not universal, role of the mother as homemaker in our society at that time. The younger the child was, the stronger the presumption that custody be given to the mother. This doctrine was known as the “tender years doctrine”, and carried very considerable weight in legal custody decisions. If the child in question was a girl, the presumption that custody be awarded to the mother was almost insurmountable.

Effectively, the only method by which a father could get custody of a minor child was to prove in open court that the mother was totally unfit to care for the child. This required, in most instances, that the father and his attorney attempt to paint as negative a picture as possible of the mother for the court. Innocent past actions and harmless present circumstances were often distorted and misrepresented to the court in attempts to have a mother declared unfit. This type of custody battle provided a forum for some of the most psychologically and emotionally damaging court proceedings in our societys history. The traumatic effects on the children involved in these proceedings were particularly tragic.

In an attempt to overcome the type of proceeding which encouraged the dredging up of irrelevant details of each parents private life, a doctrine known as the “best interests of the child” was developed. Under this legal theory, the mental, physical, and emotional well-being of the child was considered paramount in any legal proceeding regarding custody. Theoretically, a parents actions were pertinent only to the extent that they had an impact on the child. In practice, however, much irrelevant testimony and evidence was still allowed in custody battles. Detailed lists of factors were also developed to guide a court in determining what actually was important in making decisions regarding the custody of a child. Most states continue to provide these guidelines for custody decisions and these factors for consideration are discussed below.



In the 1970s, extensive legal battles were waged in attempts to overturn the “tender years” doctrine and allow fathers an equal footing in custody disputes. For the most part, they were successful. Fathers now do have an equal legal ability to obtain custody of any minor children. However, despite the changes in the law that provide that both parents have an equal right to custody, mothers are still overwhelmingly the parent who retains custody. In over 90% of all custody cases, it is the mother who is awarded custody of the children.



There is an unhappy consequence of the legal changes which make it easier for fathers to request custody. Some fathers and their attorneys have unscrupulously used this right as a weapon to pressure the mother into trading her property, alimony, or child support rights for uncontested custody of a child. Fathers who have no desire at all to actually have custody have used this manipulative tactic to prey upon the maternal fear of losing a child. In order to be certain that they do not lose custody of their child, many mothers have given up their rights to substantial property and support. Any attempts to engage in this tactic are highly disfavored by courts. If you feel that this tactic is being used in your situation, you should immediately consult an attorney for legal guidance.



Another legal doctrine has emerged recently, however, which allows both parents much greater flexibility in sharing parental responsibility. Joint or shared custody has been developed in an effort to allow a child reasonable access to both parents while growing up. Some confusion has resulted from the use of this phrase and it is important to understand exactly what joint custody is and is not. Some definitions are offered below in an attempt to clear up this confusion. Unfortunately, some people (lawyers and judges included) will use some of these terms interchangeably or incorrectly. Be certain in your discussions regarding custody that you both agree exactly what you are talking about.

Types of Custody Arrangements

In the past, sole custody by one parent was the standard form of custody. Under sole custody, one parent was awarded both the physical custody of the child (the right to have the child live with the custodial parent) and the legal custody (the right to make all of the major decisions relating to the up-bringing of the child). Decisions regarding which school the child should attend, whether the child should have medical attention, what religion the child should be taught, and all decisions regarding the childs activities, conduct, and well-being are the responsibility of the parent with sole custody. In most sole custody arrangements, the non-custodial parent is afforded some type of reasonable visitation rights unless there is a danger of harm to the child. This form of custody arrangement, with sole custody to one parent and liberal visitation for the other parent, is still the predominant method used in the majority of divorce situations involving children.



Joint or shared custody, on the other hand, is an attempt to allow both parents a voice in the major decisions involved in the raising of a child. Joint custody is generally divided into two separate rights: joint physical custody (actual custody of the child); and joint legal custody (rights to share in important decisions regarding the child). While both parents may be awarded joint physical custody of a child, one parent is generally still awarded sole physical custody of the child, with the other parent being allowed reasonable visitation privileges. However, both parents are awarded joint legal custody of the child. This rather confusing terminology simply means that both parents will continue to share the rights and responsibilities that come with parenthood. They will both have a right to jointly make the major decisions that will affect the childs life: religious, educational, medical, and social decisions. Naturally, the parent with actual physical custody for the majority of the time is allowed individual control over the minor day-to-day decisions that must be made. In many joint custody situations, the actual physical custody time a child spends with each parent mirrors sole custody situations. It is the decision-making process affecting the child that is the responsibility shared by the parents.



Divided or alternating custody is another form of custody (in some areas this is referred to as split custody; in others, this is referred to a joint physical custody). Under this form of custody, each parent is awarded actual physical and legal custody for alternating periods of time. A child may be awarded to each parent for 6 months out of a year, or for alternating months or weeks. This type of custody arrangement is not generally favored by either the courts or child psychologists. It is seen as emotionally difficult for a child to be continually shifted back and forth between each parent, without a sense of where their “home” is truly located. In some situations, however, it may be appropriate.

Another alternative, which has also proved to be difficult for the children involved is also known as split custody. This type of custody has been used in the past to attempt to achieve a technical fairness when there is more than one child by giving each parent physical custody of one or more of the children. For the children involved, however, this constitutes not only a splitting up of ones parents but also a forced separation from ones siblings. Arrangements of this type are not favored by courts.



Currently, there seems to be a general national trend towards approval of joint custody arrangements. The encouragement of frequent and continuing contact with both parents is clearly preferable to fostering single-parent childhoods for children of divorce. These types of arrangements work well and are a benefit to the child, however, only if both parents can maturely cooperate in the necessary decision-making. For joint custody to be successful, both parents must be willing to compromise for the sake of the child, and both parents must be willing to consider the well-being of the child as the most important factor. In situations where there is genuine hostility between the parents, however, one parent should generally be granted sole physical and legal custody. This is often the clearest and most definite method to establish which parent has the necessary authority to make the major decisions.



Some states have established a legal preference for joint custody, while others clearly state that there is no preference for one particular type of custody. Most states specifically allow for joint custody, while others have no particular statutory authorization for any type of shared custody. In all states, however, there is legal precedent to allow custody arrangements which are most beneficial to the children involved.

The most recent trend in custody legislation and court decisions provides one of the most common-sense approaches to the problem. Increasingly, courts are looking at a childs day-to-day circumstances in an effort to determine which parent has been the primary care-giver of the child. The parent who has provided most of the day-to-day care for the child during the marriage is then considered to be the most likely candidate to continue on as the primary custodian of the child after the divorce. The preference is given to the parent that has actively participated in caring for the child and performed the majority of the parenting activities: preparing meals, readying the child for sleep, sharing in their playtime, dealing with medical problems, participating in their education, etc.

This method does not presuppose that either parent has an entitlement to being awarded custody, but rather is based on an examination of the reality of the burdens of parenthood. The decision is based on the practical considerations of which parent has provided the most time, care, and guidance to the child prior to the actual divorce. It allows each parent an equal right to earn the custody of a child by providing care for the child before the divorce proceeding begins. This method of selection of the parent to have physical custody places the greatest emphasis on who has been providing the most parental care for the child prior to the divorce. Selection of the primary care-giver as continuing custodian generally fosters a home life of stability and continuity for the child. In the family upheaval caused by divorce, this factor deserves considerable attention.

Visitation



In any custody arrangement, and in all states, the parent who is not awarded actual physical custody of a child has a legal right to reasonable and frequent visitation with the child. Unless there is a genuine and substantiated fear of emotional or physical harm to the child, such visitation is generally allowed on an unsupervised basis and in the non-custodial parents home. A court does have the authority to completely deny any visitation to a parent who has abused a child. In most cases, however, reasonable visitation is standard. When, where and how long such visitation should be is one of the major decisions that you and your spouse will have to work out as you discuss your childrens future.



Visitation should be structured to allow frequent contact between the non-custodial parent and the child and should attempt to fit into the childs normal schedule. The schedule should be firm enough to allow for a degree of long-term planning, but flexible enough to allow for reasonable changes. Remember that any visitation schedule is only a starting point. Reasonable adjustments can be made as you and your spouse become more comfortable in your roles as divorced parents. Visitation is as much the childs right as it is the parents.

As you approach the decisions on visitation, you should remember certain points. You should remember and keep in mind that:

?   Visitation with the other parent is necessary and helpful for your childs normal development and future welfare.
?   Visitation should be a pleasant and positive experience for both the parents and for the child.
?   Visitation is a time for the parent and child to be with each other and enjoy each others company and should be maintained on a clear schedule and without interference.
?   Visitation exchanges may be the only time that you see your spouse after the divorce. Both of you should show mutual respect for the other while in the childs presence.

As you and your spouse discuss specific visitation terms, you should make every effort to insure that both of you are treated fairly regarding visitation. As you discuss the amount of visitation, put yourself in the others place. Imagine that your only contact with your child will be the visitation which is agreed upon. You would want it to be as liberal and as frequent as possible. An agreement which is fair and reasonable for both parents will generally be the best for your child.

Modification of Custody and Visitation Terms



Finally, in all states, any custody and visitation agreements which are reached between parents remain subject to court modification. Of all the terms of your marital settlement agreement, the terms which relate to the care and custody of your children will receive the closest scrutiny by a court. The court has total authority in this area and has the power to totally disregard any agreement that is felt to be harmful to the children. In many states, in fact, the court has the authority to appoint a lawyer who will represent the interests of the child in a contested custody situation. This court-appointed legal guardian of a childs legal rights is referred to generally as a guardian ad litem.



In the vast majority of cases, however, a court will accept reasonable custody and visitation provisions contained in marital settlement agreements, particularly if it appears that such agreements were obtained through thoughtful and mature negotiation. Most judges, however, are conservative when it comes to the rights of children and will not favor any unusual custody arrangements that fall outside of the traditional boundaries. Recognize also that although the court which handles your divorce will have the right to modify your custody agreement at any time in the future, it is much more difficult to have such modifications made after your divorce is finalized. For the sake of promoting a sense of stability in a childs life, courts are somewhat reluctant to make changes in settled custody arrangements. For this reason, you and your spouse should work diligently to attempt to initially fashion a fair agreement for custody and visitation.

As you examine your own lives and consider the realities of custody and visitation, keep these legal trends in mind. They are what guide most courts in their deliberations of custody disputes. You should also refer to the state appendix for the details of your states particular laws regarding child custody. Decisions on custody and visitation, however, are best made by both parents in a cooperative manner without the involvement of courts and lawyers. Cooperating parents can adopt any practical arrangement that provides a reasonable resolution to the difficult problems of dividing a childs time between two parents who no longer desire to live together.

Both parents deserve an opportunity to interact with their child during childhood. More importantly, your child deserves to have both of you available for love, affection, and guidance as he or she grows up. You should make every possible attempt to work out a reasonable child custody arrangement that is satisfactory to both of you and your child. However, if you and your spouse are unable to reach an agreement, the use of an impartial mediator may be useful. In child custody disputes, mediation is the preferred first alternative for providing a solution. If personal negotiation and mediation both fail to help you achieve an agreement, a resort to the legal process may be necessary. However, keep in mind the tremendous psychological and emotional toll that a bitter court battle over custody can have on both you and your child. If your spouse hires a lawyer to engage in a custody battle, you should, however, seek legal assistance immediately.

Factors for Consideration





In most states, judges are provided with a specific list of items which have been determined to be relevant to custody decisions. The factors are provided only as guidelines and there are generally no mandatory requirements that each factor be considered. They are used as a framework by which to approach the complex set of circumstances that influence the decision of which parent should be awarded custody of a child.

The wishes of the parents and of the child are almost universally considered to be relevant, particularly if the child is old enough to have a mature and intelligent choice. Marital misconduct is not considered at all in many states to be relevant, unless the misconduct has a direct bearing on the parents relationship with the child.

The following is a list of the most important factors that are in use in courts throughout the United States. A few states do not list specific factors in their statutes. For those states, this general list of factors may be used. Please check the Appendix for the laws regarding custody in your particular state.

?   The age and sex of the child;
?   The physical, emotional, mental, religious, and social needs of the child;
?   Which parent provides the primary care for the child;
?   The capability and desire of each parent to meet the childs needs;
   ?   The preference of the child, if the child is of sufficient age and capacity to form a meaningful opinion;
?   The love and affection existing between the child and each parent;
?   The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
?   The desire and ability of each parent to allow an open, loving, and frequent relationship between the child and the other parent;
?   The wishes of the parents;
?   The childs adjustment to his or her home, school, and community;
?   The mental and physical health of all individuals involved;
?   The relationship of the child with parents, siblings, and other significant family members;
?   The material needs of the child;
?   The stability of the home environment likely to be offered by each parent;
?   The education of the child;
?   The advantages of keeping the child in the community where the child resides;
?   The optional time for the child to spend with each parent;
?   Any findings or recommendations of a neutral mediator;


?   A history of violence between the parents or a history of child abuse; and


?   A need to promote continuity and stability in the life of the child.

In addition, there are other factors that a court will take into consideration when joint or shared custody is an issue. These factors relate to the ability of the parents to cooperate and to the practical aspects of allowing joint custody. These factors are as follows:



?    The ability of the parents to cooperate and make decisions jointly;
?    The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent;


?    Whether the past pattern of involvement of the parents with the child reflects a system of values and mutual support which indicates the parents ability as joint custodians to provide a positive and nourishing relationship with the child;
?   The physical proximity of the parents to each other as this relates to the practical considerations of where the child will reside;
?   Whether an award of joint custody will promote more frequent or continuing contact between the child and each of the parents;
?   The permanence, as a family unit, of the existing or proposed custodial home;
?   The nature of the physical and emotional environment in the home of each of the persons awarded joint custody;
?   The willingness and ability of the persons awarded joint custody to communicate and cooperate in advancing the childs welfare;
?   Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
?   Whether both parents have actively cared for the child before and since the separation;
?   Whether one or both parents agree to, or are opposed to, joint custody.

As you examine your particular situation, use the above factors to attempt to realistically assess what type of child custody and visitation arrangements would be best suited to your family. Remember that you and your spouse are in the best position to clearly understand the particular circumstances that influence your lives and the life of your child. Although a judge will use a list of factors similar to those presented here to make custody decisions in contested cases, a court decision will never be as meaningful to a child as one which his or her parents have worked out in an amicable and loving manner.

The Childs Bill of Rights



In addition to the various factors that courts consider, an outline of the rights of children was developed from Wisconsin Supreme Court decisions and is now used throughout the United States. Delaware recently enacted legislation that makes it a requirement that parents sign an affidavit that they have read and understand these rights. This Childs Bill of Rights is useful in reminding parents involved in a divorce that there are certain important rights that their children are entitled to have considered during any discussions relating to custody and visitation. A review of these rights can help each of the parents to better view the effects of their divorce through the eyes of their child. Of all of the factors that you and your spouse will consider in your discussions on child custody and visitation, these are the most important.



The Childs Bill of Rights is as follows:

      The right to a continuing relationship with both parents;

?   The right to be treated as an important human being, with unique feelings, ideas, and desires;

      The right to continuing care and guidance from both parents;

?   The right to know and appreciate what is good in each parent without one parent degrading the other;

?   The right to express love, affection, and respect for each parent without having to stifle that love because of disapproval of the other parent;

?   The right to know that a parents decision to divorce was not the responsibility of the child;

      The right not to be a source of argument between the parents;

      The right to honest answers about the changing family relationships;

?   The right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans;

?   The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.

Child Custody Jurisdiction



Related to the actual custody decisions is the issue of which specific state has the proper authority and jurisdiction to hear a child custody case. All 50 states have now enacted a uniform law relating to jurisdiction in custody matters: The Uniform Child Custody Jurisdiction Act. This legislation was passed in an effort to create a uniform nationwide system for determining which individual state should be the proper forum for custody decisions in every situation. It is an attempt to deal with the problems of child-snatching by parents who are dissatisfied with a particular states custody decision.



In the past, some parents who have lost custody battles have taken their children across state lines in an attempt to have another states court award custody to them. This new uniform legislation provides a set of standardized guidelines to determine which single state should have the sole power and authority to decide the custody of a child in all situations. The decision as to which state will have jurisdiction is based on a variety of factors, such as: the length of time the child has resided in the state, whether there has been any previous court proceedings concerning the childs custody; the residency of both parents, etc.



If you and your spouse: (1) have never before been involved in any child custody proceedings concerning your children; and (2) are both able to agree upon the arrangements regarding your childs care; and (3) both live in the same state; then, you may assume that the state that you both live in presently is the state with the proper jurisdiction to decide your childs custody. If, however, you or your spouse or child have previously been involved in child custody litigation in another state, you will need to consult a lawyer for advice relating to the court with proper jurisdiction in your particular situation.






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Child Custody Questionnaire

What is your childs full name?    

What is your childs birth date?    

In what city and state was your child born?    

Have there ever been any previous court proceedings regarding custody of your child?    
   (If YES, describe in full; indicating dates, city, state, name of court, and outcome).
   __________________________________________________________________
   __________________________________________________________________

Where does your child currently live?    
   With whom?    
   For how long?    

What is your educational level?    
   Your spouses?    

Do you or your spouse have any children by a previous marriage?    
   If YES, list names, ages, and whereabouts.    

Do you have any specific physical or emotional health problems? (if YES, please describe).
   __________________________________________________________________
   Your spouse?    
   Your child?    

Does your child have any special medical needs? (If YES, please describe).    
   __________________________________________________________________
   Is any special treatment required?    
   Any special medication?    

Who is your childs doctor?    

Who is your childs dentist?    
Who takes the child to the doctor/dentist?    

Does you child have any special educational needs? (If YES, please describe).    
   __________________________________________________________________

What school or day care does your child currently attend?    
   For how long?    
   Who is your childs teacher?    
   Who takes your child to school or day care?    
   Who helps with homework?    
   Who attends parent/teacher conferences?   

Who prepares the childs meals?    
   What is your childs favorite food?    
   Who does the grocery shopping?    
   Who does the dishes?    

Do you read to your child?    
   What is your childs favorite story?    

Is your child involved in any sports activities? If YES, please describe).    
   __________________________________________________________________
   Who goes to the games?    
   Who is the coach or teacher?    

Is your child involved in any music, crafts, or art activities? (If YES, please describe).   
   __________________________________________________________________
   Who takes your child or participates?    
   Who is the teacher?    

What is your religious affiliation?    
   Your spouses?    
   Your childs?    
   Does your child attend church?    

When was the last time that you or your spouse took your child to the following? (Indicate when, which parent or both).
   Library     Museum __________________________________
   Zoo        Movie ___________________________________
   Ballgame     Playground _______________________________
   Your work     Bike ride/hike _____________________________

For the following questions, please answer and explain in detail in your own words regarding both you and your spouse:

Which of you is more likely to allow the child frequent and continuing contact with the other parent?
   You:      
         
   Your spouse:    
         

Describe the love, affection, and other emotional ties which exist between each of you and your child:
   You:      
         
   Your spouse:    
         

Describe the ability of each of you to provide for your childs basic needs (food, clothing, shelter, medical care):
   You:      
         
   Your spouse:    
         

How long has your child lived with you in a stable environment?
   You:      
         
   Your spouse:    
         
In your opinion, in which home will your child receive better ethical, moral, and spiritual guidance?
   You:      
         
   Your spouse:    
         

In your opinion, in which home will your child find the most love and affection?
   You:      
         
   Your spouse:    
         

In your opinion, in which home will your child have the most educational enrichment and opportunities?
   You:      
         
   Your spouse:    
         

In your opinion, in which home is the child most familiar with the schools, neighborhood, and community?
   You:      
         
   Your spouse:    
         

Describe each of your efforts at the discipline of your child:
   You:      
         
   Your spouse:    
         

Has there ever been any evidence of spouse or child abuse?
   You:      
         
   Your spouse:    
         
Describe the physical, mental, and moral fitness of both you and your spouse:
   You:      
         
   Your spouse:    
         

If your child is of sufficient intelligence and understanding to form an opinion, do you feel that your child has a preference regarding who should retain custody?
   You:      
         
   Your spouse:    
         

Which of you has been the parent who has provided the primary day-to-day care for the child?
   You:      
   Your spouse:    

Do you feel that you should have custody of your child?    

Do you feel that you and your spouse would be able to effectively and peacefully share in making the major decisions regarding your child in the future? (For example: which school to attend, which doctor to visit, etc.).   

What visitation should be allowed the parent who does not have physical custody of your child? (Include times and dates).
   Contact during the week?    
   Contact on weekends?    
   Contact on school holidays?    
      Which holidays?    
         
         
   Contact on winter vacation?    
   Contact on spring vacation?    
   Contact on summer vacation?
Custody and Visitation Worksheet


Which parent will have actual primary physical custody of the child? (In other words, with whom will the child generally live?)    

Will both parents share in the major decisions regarding the child?    
   
   If YES, do you desire a joint custody arrangement?    
   If YES, on what decisions will you both jointly confer?
      Education/school choice    
      Medical care    
      Dental care    
      Religious training    
      Vacation dates    
   If YES, does the non-custodial parent have the right to be notified in advance of any up-coming decisions?    
   If YES, does either parent have veto power over the decisions of the other?    

Will the custodial parent have the right to move out of the state with the children without the other parents consent?    

Will both parents have the right to be informed of any change of address or telephone number of the other?    

On what dates and times will the non-custodial parent have visitation?
   
   Weekends:    
   Weekdays:    
   Holidays:    
      (New Years Day, Martin Luther King Jrs Birthday, Valentines Day, Easter, Mothers Day, Memorial Day, Fathers Day, 4th of July, Labor Day, Halloween, Thanksgiving, Christmas/Hanukkah, the childs birthday, any other special days)
   Vacations:    
      (Winter, Spring break, Summer)

Will the non-custodial parent be allowed to see the child at any other times if reasonable notice is provided? _________

Will the non-custodial parent have the right to be informed about the childs activities, illnesses, school, etc.? ________

Will the non-custodial parent have the right to obtain the childs school, medical, or dental records? _________

Will there be any visitation privileges for grandparents?    
   
   If YES, when?    

What last name will the child use?    


Information
Child Support

A. General Overview

Closely related to the decisions that must be made regarding child custody are those decisions relating to the support of a child. In most instances, the parent who does not have physical custody of a child must provide child support to the parent who has custody. Child support agreements are essentially financial in nature. A child support worksheet is included in this kit to allow you to gather the necessary information for these decisions.

Before you and your spouse consider the legal aspects of child support, you should both understand that child support terms are the provisions of marital settlement agreements and divorce orders that are most often defaulted upon or ignored. Tragically, this has resulted in the creation of a new class of poverty-level individuals: children of divorced parents. The majority of court-ordered child support payments are neither paid in full nor on time. Nearly one-third of the children entitled to child support receive no support at all. The reasons for this tragedy are many, but perhaps the most important stems from the frustration of the non-custodial parent having to pay for the support for children that he or she does not live with or raise. If you and your spouse can come to a reasonable and workable agreement regarding the custody and visitation arrangements for your child, there will be a far greater chance that your child support agreement will also be seen as reasonable. As you approach your child support discussions, please keep these tragic statistics firmly in mind.

B. The Law of Child Support

Both natural parents of a minor child have a legal obligation to provide adequate support for the child until the child reaches 18 years of age (21 in some states). This legal duty includes providing food, clothing, shelter, medical care, and education for a child. This is the law in every state. Parents of adopted children also have this same obligation. Child support, however, is not merely the delivery of a monthly support payment. It is a legal, moral, and ethical obligation to provide full care and support for your offspring.

Divorce does not end this legal obligation for support. It merely complicates the duty. Both parents have an equal duty to support their children. In the vast majority of divorces which involve children, however, the mother is awarded physical custody of those children. Also, in the majority of family situations, it is the mother who earns a disproportionately lower income than the father. Thus, in most divorce situations involving children, there will be an immediate and definite need for considerable child support to be provided by the father. Regardless of which parent has physical custody and even when the incomes of both parents are equal, both parents still need to provide their fair share of support for the child. A child should not be forced to suffer economically because of the divorce of his or her parents.

When a single family unit is divided into two households upon divorce, the total living costs will naturally escalate. Two homes must be maintained instead of one. Two sets of furniture, appliances, and housewares must be provided. Two cars, two televisions, two of almost every household item will need to be purchased and maintained. Unfortunately, the income of the divorced family will not increase. In many cases, in fact, it may actually decrease as the parent with custody may find it more difficult to maintain a full-time job. Because both parents are no longer able to share their time with the child as easily, child care costs may also increase.

The goals of child support laws are to achieve a fair division of the income of both parents in order to provide for the satisfactory support of the children of a marriage. As much as is possible, a child should be entitled to share in the income of both parents, despite their divorce.

Recent federal legislation (the Family Support Act of 1988) requires each state to provide some type of formula or guidelines for the determination of child support awards. In the attempt to provide specific financial guidelines for child support provisions, many states have adopted detailed legislation and rules regarding how to arrive at a fair support amount. Some states have provided only simple formulas. Later in this packet, a general set of guidelines for determining child support will be presented.

In recent years, these child support guidelines have tended to become more detailed, specific, and mathematic. The newest versions of child support legislation are full of various charts and financial formulas for determining the correct amount of support. These detailed guidelines are an attempt to take the mystery out of the manner in which a court determines how much child support to award. In most states which have such guidelines, however, the rules are only to be used to provide a structure for determining a minimum amount of child support. A court has the authority to order more or less child support if necessary.

While each states guidelines may be somewhat different, they all generally require that if the non-custodial parent has sufficient income, he or she must provide a specific level of monthly support to the parent who has custody of the child. Increasingly, states are adopting legislation that goes beyond simply providing a monthly payment for child support. Some of these recent laws may require various non-monetary forms of support: that a parent provide health insurance, dental insurance, life insurance for the parent with the child as sole beneficiary, or that the family home not be sold for a particular period of time. All of these provisions are an attempt to provide sufficient security for a child of divorce to prevent the child from requiring welfare or other social service support from the state. Please check the Appendix for information on your states specific statutory child support guidelines.


C. Factors for Consideration

In addition to any specific detailed statutory child support guidelines, most states also provide a list of factors which are considered relevant in child support cases. A judge will determine how much weight to give each factor depending on the unique circumstances of each case. You and your spouse should use this general list of factors to focus your discussions regarding child support. Please check the Appendix for the factors in use in your state. Some states do not provide a list of factors in their statutes. Residents of those states may use this list as a general guideline for their negotiations regarding child support.

The factors that are considered pertinent in most states revolve around two specific areas: (1) the needs of the child; and (2) the ability of the parents to pay support. Each of these basic factors has many sub-factors, which are outlined below. Aspects of the first main factor, the needs of the child, are generally used to determine the minimum amount of child support that is necessary to provide the child with the basic comforts of life. Considerations regarding the second major factor, the ability of the parents to pay, are then often used to establish the maximum amount which the supporting parent should pay. The standard of living of both parents is considered in this decision.

The general factors which are considered pertinent to decisions relating to child support are as follows:

r   The financial resources of the child;
r   The age and health of the parents;
r     The standard of living the child would have enjoyed if the marriage had not been dissolved;
r   The physical and emotional conditions and educational needs of the child;
r   The financial resources, needs, and obligations of both the non-custodial and the
   custodial parent;
r   Any excessive expenditures, destruction, or concealment of assets;
r   The occupation of each parent;
r   The earning capacity of each parent;
r   The amount and sources of income of each parent;
r   The vocational skills and employability of each parent;
r   The age and health of the child;
r   The childs occupation (if old enough to work);
r   The vocational skills of the child (if old enough to work);
r   The employability of the child (if old enough to work);
r   The needs of the child;
r   The standard of living and circumstances of each parent;
r   The relative financial means of the parents;
r   The need and capacity of the child for education, including higher education;
r   The responsibility of the parents for the support of others;
r   The value of services contributed by the custodial parent;
r   The desirability of the parent having either sole custody or physical care of the child remaining in the home as a full-time parent;
r   The cost of day care to the parent having custody or physical care of the child if that parent works outside the home, or the value of the child care services performed by that parent if the parent remains in the home;
r   The tax consequences of child support to each parent.

A very important factor which is not listed here, but that you and your spouse must take into consideration, is that the court always has absolute authority over child support decisions. This power is retained regardless of any agreement that you may reach. The obligation for child support can not be bargained away in your negotiations. Courts are very protective of the rights of a child to be supported by both parents and will not accept the terms of any settlement agreement that does not provide for reasonable levels of support. Although courts will often accept the child support terms that parents agree to in settlement negotiations, they can and will ignore any agreements they find unreasonable. Ultimately, it is the court which has final authority to issue support orders for dependent children and they take that power very seriously. Much as you can not trade away the custody of your child for monetary rewards, you can not bargain away your childs rights to support. The marital settlement agreement that you and your spouse sign will bind the two of you, but will not bind your children. Their rights to reasonable support may be enforced by a court if necessary, despite you and your spouses agreement.

The income tax aspects of child support may be an important factor in your considerations.


D. Enforcement and Modification of Child Support

Of all the provisions of a final divorce, child support obligations are, unfortunately, the ones which are most often ignored. Over one-half of court-ordered child support payments are not paid in full or on time. Nearly one-third of qualifying children receive no child support at all. Recent studies have shown that the income level of the divorced parents has no bearing on whether a child will receive adequate child support. Unfortunately, wealthy parents are just as likely to default on child support payments as poor parents.

There is now a concerted national effort to collect and enforce overdue child support payments. This effort is backed by very comprehensive and powerful laws which are beginning to turn the tide of non-payment of child support. In recent years, all 50 states have enacted legislation to deal with this problem: the Uniform Reciprocal Enforcement of Support Act. Many states have also enacted other strict laws dealing with methods to enforce child support obligations. In addition, the federal government has enacted very tough child support enforcement legislation.

Child support provisions in a marital settlement agreement or final divorce order are always subject to modification, regardless of any attempt to limit such future modification. The courts always have authority to increase or decrease the amount of the support. However, modifying a child support order in the future involves a showing of changed circumstances and an often lengthy lawsuit and court hearing. It is far easier to attempt to anticipate any lifestyle and income changes in advance than to resort to the courts to keep changing the amount of child support.



E. General Child Support Guidelines

The guidelines provided here are just that, guidelines. They are not intended to be an ultimate method for determining support payments in all cases. They should be reviewed and used while considering all of the other relevant factors in your particular situation. The determination of the proper amount of child support in each case will always be difficult. A careful balance must be obtained between providing an adequate level of support and overburdening the parent who must pay the support. If the support payments are set at a level which becomes a tremendous financial burden to the paying parent, there will be a tendency and temptation to default on the payments. On the other hand, if the payments are too low, the child will suffer the consequences. Both parents must work together carefully to actually determine a fair and reasonable amount of support. Care must be taken to keep the negotiations on a mature and rational basis. Discussions involving child support have the very real potential of deteriorating into hostile arguments. Of all of the aspects of divorce, child support obligations have spawned more post-divorce lawsuits than any other.

Many different methods of determining the amount of child support payments have been utilized around the country. A mathematical formula method of determining child support has been adopted recently in many states. Generally, this method consists of (1) determining the actual monthly needs of the child based on the particular circumstances of the family; and (2) determining the ability of the parents to pay. Other methods rely upon charts of child support amounts. The method of determining the proper amount of child support which is provided in this packet was adapted from the guidelines used in many different states and is a combination of the most common methods in use. It attempts to take both parents economic situations into account. Your particular state may use a similar method or a variation. You should refer to the Appendix for information regarding your states specific requirements. In addition, you may wish to check with the clerk of the court in the county where you live to see if there are any local child support guidelines or rules in effect. In addition, many states have specific child support worksheets which are to be used. Check the Appendix and with your court clerk.

These guidelines are provided as an example of how various states have decided to calculate minimum child support amounts. For your situation, you should use the highest amount provided by the calculations as a starting point for your discussions. Other factors, in addition to income and deductions, may then be used to adjust the amount accordingly.

This type of child support guideline uses a chart of minimum child support amounts. To use this method, you must first determine the monthly net income of each parent. To obtain this figure, combine all of the income of each parent from any source. Then, subtract the mandatory deductions from this income as shown on the following worksheet. This will give you the monthly net income of each parent for child support purposes. If there are seasonal or monthly fluctuations in the parents income or deductions, you may wish to determine the income and deductions on an annual basis and then divide that amount by 12 for the net monthly income.

Next, combine the two monthly net income amounts for a total net family income. Using this combined net monthly family income, consult the child support chart to determine the total minimum amount of child support which is necessary. Always go to the next higher level if your combined monthly income falls in between the amounts shown. As with all decisions concerning children, the courts will always favor the decision which benefits the children the most. Remember, the amount shown is only the general minimum amount necessary and the actual amount of support required may be higher (or even lower) than this amount, depending on the particular circumstances of your situation. Federal law requires that if a judge decides to award less child support than is warranted by a states guidelines, the specific reasons must be stated. Also remember that your particular state may have a slightly different set of guidelines or various other charts for determining support. Note also that the amount shown on the chart is the amount of support required by both parents together. The amount of the non-custodial parents individual share is determined as explained in the next paragraph.

After the amount on the chart is determined, the non-custodial parents share must be determined. Divide the net monthly income of the parent without custody by the total net monthly family income to determine the fractional or percentage share of the total child support. This figure multiplied times the figure from the support guideline chart will be the minimum monthly support required. To this amount should then be added any child care costs which are required to enable the parent with custody to obtain employment.

For example, Parent A has an income of $1,350 per month, with allowable deductions of $350 per month, for a net individual monthly income of $1,000 per month. Parent B has an income of $2,700 per month, with allowable deductions totaling $700, for a net individual monthly income of $2,000 per month. The combined net family income would be $3,000 per month. They have two children, so the total child support amount shown on the chart is $972. Parent A incurs $168 per month child care expenses in order to hold a job. Thus, the total minimum amount of family child support would be $1,140 per month.

Parent A has custody of the children. Because Parent B contributes two-thirds of the total family income ($2,000/$3,000 or 2/3), Parent Bs share of this total amount will be 2/3 of the total amount of family support or $760 ($1,140 X 2/3 = $760). Only the parent without physical custody of the child (in this example: Parent B) will be required to make the child support payment to the parent with custody (Parent A). Parent As share of the support amount is assumed to be used to provide the household in which the child lives.

This final figure is only a determination of the general minimum amount of child support necessary. The actual amount of the monthly payments may be more or less. This final general minimum figure should be adjusted up or down based on the following factors and any other relevant information:

r   Any extraordinary medical, dental, or health expenses;
r   Any independent income of the child;
r   Any seasonal variations in a parents income;
r   The age of the child, taking into consideration the greater needs of older children;
r   Any special needs that have previously been met by the family budget;
r   The total assets available to the parents and the child;
r   The custody arrangements for the child. In situations where there is joint physical custody, the actual amount of time the child spends with each parent may be particularly relevant.
The amount of the actual payment as calculated using this method depends upon the income, deductions, and child care expenses of both parents. If the income of the parent with custody is very low, the non-custodial parent will be required to pay all or the bulk of the amount of child support shown on the chart. On the other hand, if the income of the parent with custody is very high and that of the non-custodial parent is low, the required child support payment may be very low.

INSTRUCTIONS
Child Support Worksheet

   This form provides you with a guideline to determine child support payments.  The guidelines provided here are just that, guidelines. They are not intended to be an ultimate method for determining support payments in all cases. They should be reviewed and used while considering all of the relevant factors in your particular situation.  A careful balance must be obtained between providing adequate support and overburdening the parent who must pay.

Child Support Worksheet

Net Monthly Income of Parent with Custody:
   Gross Monthly Income
   Wages, salary, bonuses     $    
   Interest and dividends     $    
   Business income     $    
   Unemployment/Social Security     $    
   Income from other sources     $    
   
   Total Gross Monthly Income     $    

   Monthly Deductions
   Income taxes withheld     $    
   Social Security withheld     $    
   Union dues withheld     $    
   Childrens health insurance premiums     $    
   Mandatory retirement withheld    $    

   Total Monthly Deductions     $    

Total Net Monthly Income of Parent With Custody
   Total Gross Monthly Income     $    
                              Minus (-)
   Total Monthly Deductions     $    
                              Equals (=)
   Total Net Monthly Income (A)    $    

Net Monthly Income of Parent without Custody:
   Gross Monthly Income
   Wages, salary, bonuses     $    
   Interest, dividends     $    
   Business income     $    
   Unemployment/Social Security     $    
   Income from other sources     $    
   
   Total Gross Monthly Income     $    
   Monthly Deductions
   Income taxes withheld     $    
   Social Security withheld     $    
   Union dues withheld     $    
   Mandatory retirement withheld     $    
   Childrens health insurance premiums     $    

   Total Monthly Deductions     $    


Total Net Monthly Income of Parent Without Custody
   Total Gross Monthly Income     $    
                              Minus (-)
   Total Monthly Deductions     $    
                              Equals (=)
   Total Net Monthly Income (B)    $    


Total Combined Net Monthly Family Income:

   Net Monthly Income of Parent With Custody (A)    $    
                              Plus (+)
   Net Monthly Income of Parent Without Custody (B)    $    
                              Equals (=)
   Combined Net Monthly Family Income (C)     $    

Use the Combined Net Monthly Family Income figure (C) to find the total minimum amount of child support required on the following chart. If this figure is over $4,200, please use the percentages listed following this chart. To this amount is added any child care expenses that are required in order that the parent with custody may obtain employment.

   Minimum Child Support from Both Parents     $    
                              Plus (+)
   Required Monthly Child Care Expenses     $    
                              Equals (=)
   Minimum Total Child Support     $    

Using this figure (Minimum Total Child Support), determine the minimum child support necessary from the parent without custody as follows:

   Monthly Net Income of Parent Without Custody (B)   $    
                              Divided by (/)
   Combined Net Monthly Family Income     $    
                              Equals (=)
   Non-Custodial Parents percentage share        %
                              Times (X)
   Minimum Total Child Support from Both Parents     $    
                              Equals (=)
   Monthly Minimum Child Support to be paid     $    

   Remember that this final figure is a general minimum amount and is subject to adjustment based on the other factors in your particular situation.

   
Minimum Child Support Guideline Chart

This chart is similar to charts used in various states throughout the country. In general, it tends to be slightly higher than those in use in most states. However in nearly all cases, if the figures in this chart are used for your calculations, your child support decisions will be accepted by the court.

Combined
Monthly         One         Two        Three        Four        Five        Six
Income        Child        Children        Children        Children        Children        Children

500         48         48         49         49         50          50
750        177         274         279         282         285         288
1000        231         359         450         507         520        525
1100         251         390         489         551         600        620
1200         271         421         528         595         648        693
1300         291         452         566         638         695        744
1400         311         483         605         682         742        794
1500         332         516         645         728         792        847
1600         353         548         686         773         842        901
1700         374         580         726         819         892        954
1800         395         612         767         865         942        1007
1900         416         645         807         910         992        1060
2000         437         677         847         956        1042        1113
2100         457         709         887        1000        1091        1166
2200         476         739         924        1042        1136        1215
2300         495         768         961        1084        1182        1264
2400         514         798         999        1126        1228        1313
2500         532         828        1036        1167        1274        1362
2600         551         857        1073        1209        1319        1411
2700         570         887        1110        1251        1365        1460
2800         589         917        1147        1292        1411        1509
2900         607         945        1176        1332        1453        1554
3000         624         972        1209        1370        1495        1598
3100         642         999        1243        1408        1536        1643
3200         659        1026        1276        1446        1578        1687
3300         677        1052        1310        1484        1619        1731
3400         694        1079        1343        1521        1660        1775
3500         712        1106        1377        1559        1702        1819
3600         729        1133        1410        1597        1743        1863
3700         747        1160        1444        1635        1785        1907
3800         764        1187        1477        1673        1826        1951
3900         778        1208        1510        1704        1859        1986
4000         791        1227        1534        1731        1889        2018
4100         804        1246        1559        1758        1919        2050
4200         817        1265        1583        1785        1949        2082


For combined net monthly income amounts over $4200, use the following percentages to determine the minimum child support payments:


1 Child:      20% of the net monthly combined income

2 Children:      30 % of the net monthly combined income

3 Children:      38 % of the net monthly combined income

4 Children:      43 % of the net monthly combined income

5 Children:      47 % of the net monthly combined income

6 + Children:      50 % of the net monthly combined income

Appendix A
Divorce Law Summaries for all 50 States
Provided under agreement with copyright holder,
© Nova Publishing Company 2004
(Click on the appropriate state link below)

ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
GEORGIA
HAWAII
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY
NEW MEXICO
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
OHIO
OKLAHOMA
OREGON
PENNSYLVANIA
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
VIRGINIA
WASHINGTON
WEST VIRGINIA
WISCONSIN
WYOMING

Number of Pages35
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#27380
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.








C



Child Custody, Visitation and 
Support Kit



This Packet Includes:
1.    General Instructions
2.    Information
1.   Child Custody and Visitation
1.1   Child Custody and Visitation Information
A.   General Overview
B.   Laws of Child Custody and Information
C.   Types of Custody Arrangements
D.   Visitation
E.   Modification of Custody and Visitation Arrangements
F.   Factors for Consideration
G.   Childs Bill of Rights
H.   Child Custody Jurisdiction
1.2   Child Custody Questionnaire Instructions
1.3   Child Custody and Visitation Worksheet Instructions
1.4   Child Custody Questionnaire
1.5   Child Custody and Visitation Worksheet
2.   Child Support
2.1   Child Support Information
A.   General Overview
B.   Laws of Child Support
C.   Factors for Consideration
D.   

Enforcement and Jurisdiction of Child Support
E.   General Child Support Guidelines
2.2   Child Support Worksheet; and
3.   Child Custody, Visitation and Support Kit



General Instructions
Child Custody, Visitation and Support Kit

    Child Custody Questionnaire



   The Child Custody Questionnaire is designed to assist you in understanding what factors are pertinent to your discussions regarding custody and visitation. Two copies of this questionnaire should be made and both you and your spouse should honestly and completely answer the questions. Although the questions relate to one “child,” if you have more than one child please include answers relating to each child on the form. Many of the questions relate to which parent, in general, currently provides the primary care for the children. Your answers will be the basis for your custody discussions with your spouse and will allow both of you to focus on the relevant issues.

   Child Custody and Visitation Worksheet

   With all of the various factors which influence the decisions regarding child custody firmly in mind, you and your spouse should be ready to approach the actual mechanics of custody and visitation arrangements. The Child Custody and Visitation Worksheet sets out the most common questions which arise in custody situations.




Information
Child Custody, Visitation and Support Kit

General Overview

Each year, over 1 million children experience the divorce of their parents. Too often, when children are part of a divorcing family, a devastating legal battle is waged over the right to retain custody. The emotional and psychological scars that children receive in these fierce custody wars are perhaps the most tragic results of divorce. Unfortunately, in too many instances, children become pawns in a destructive game of revenge and vindictiveness between their divorcing parents.

If you and your spouse have children, the decisions that you will face regarding their custody and visitation will perhaps be the most difficult of the entire divorce process. But in many respects, they may also be the most important. Your childrens future well-being will depend directly on your ability to come to a reasonable agreement with your spouse regarding custody and visitation. If you have children, you must understand that your divorce will not end the relationship between you and your spouse. You will still both continue to be parents, even though you will no longer be wife and husband. Because of the necessity for this on-going relationship, it is very important to keep your settlement discussions regarding your children on a calm and peaceful level.

In many cases there is a temptation to allow personal animosity toward your spouse to enter into the discussions regarding your children. If you personally no longer wish to live with your spouse, you may feel that you dont want your children to live with him or her either. There may also be a tendency to attempt to vent your frustration at the prospect of divorce through a battle over custody. For your childrens sake, you must make every effort to keep your discussions about custody on a reasonable and mature basis. Your children will have to live the rest of their lives with the results of you and your spouses custody decisions.

Laws of Child Custody and Visitation

Determining which parent is to have custody of a minor child is one of the most difficult decisions that you will encounter in your divorce. Judges and legislators have also grappled extensively with the difficulty of this decision. In recent years, certain legal trends have emerged regarding how an impartial judge might decide which parent is to be awarded custody of a minor child. These relatively new legal doctrines are a clear break with many of the traditional methods which were previously used to determine custody.



In the past, there were several legal doctrines which governed child custody decisions. Most notably, there was a very strong presumption that a mother should be awarded custody of any child. This presumption stemmed directly from the traditional, though not universal, role of the mother as homemaker in our society at that time. The younger the child was, the stronger the presumption that custody be given to the mother. This doctrine was known as the “tender years doctrine”, and carried very considerable weight in legal custody decisions. If the child in question was a girl, the presumption that custody be awarded to the mother was almost insurmountable.

Effectively, the only method by which a father could get custody of a minor child was to prove in open court that the mother was totally unfit to care for the child. This required, in most instances, that the father and his attorney attempt to paint as negative a picture as possible of the mother for the court. Innocent past actions and harmless present circumstances were often distorted and misrepresented to the court in attempts to have a mother declared unfit. This type of custody battle provided a forum for some of the most psychologically and emotionally damaging court proceedings in our societys history. The traumatic effects on the children involved in these proceedings were particularly tragic.

In an attempt to overcome the type of proceeding which encouraged the dredging up of irrelevant details of each parents private life, a doctrine known as the “best interests of the child” was developed. Under this legal theory, the mental, physical, and emotional well-being of the child was considered paramount in any legal proceeding regarding custody. Theoretically, a parents actions were pertinent only to the extent that they had an impact on the child. In practice, however, much irrelevant testimony and evidence was still allowed in custody battles. Detailed lists of factors were also developed to guide a court in determining what actually was important in making decisions regarding the custody of a child. Most states continue to provide these guidelines for custody decisions and these factors for consideration are discussed below.



In the 1970s, extensive legal battles were waged in attempts to overturn the “tender years” doctrine and allow fathers an equal footing in custody disputes. For the most part, they were successful. Fathers now do have an equal legal ability to obtain custody of any minor children. However, despite the changes in the law that provide that both parents have an equal right to custody, mothers are still overwhelmingly the parent who retains custody. In over 90% of all custody cases, it is the mother who is awarded custody of the children.



There is an unhappy consequence of the legal changes which make it easier for fathers to request custody. Some fathers and their attorneys have unscrupulously used this right as a weapon to pressure the mother into trading her property, alimony, or child support rights for uncontested custody of a child. Fathers who have no desire at all to actually have custody have used this manipulative tactic to prey upon the maternal fear of losing a child. In order to be certain that they do not lose custody of their child, many mothers have given up their rights to substantial property and support. Any attempts to engage in this tactic are highly disfavored by courts. If you feel that this tactic is being used in your situation, you should immediately consult an attorney for legal guidance.



Another legal doctrine has emerged recently, however, which allows both parents much greater flexibility in sharing parental responsibility. Joint or shared custody has been developed in an effort to allow a child reasonable access to both parents while growing up. Some confusion has resulted from the use of this phrase and it is important to understand exactly what joint custody is and is not. Some definitions are offered below in an attempt to clear up this confusion. Unfortunately, some people (lawyers and judges included) will use some of these terms interchangeably or incorrectly. Be certain in your discussions regarding custody that you both agree exactly what you are talking about.

Types of Custody Arrangements

In the past, sole custody by one parent was the standard form of custody. Under sole custody, one parent was awarded both the physical custody of the child (the right to have the child live with the custodial parent) and the legal custody (the right to make all of the major decisions relating to the up-bringing of the child). Decisions regarding which school the child should attend, whether the child should have medical attention, what religion the child should be taught, and all decisions regarding the childs activities, conduct, and well-being are the responsibility of the parent with sole custody. In most sole custody arrangements, the non-custodial parent is afforded some type of reasonable visitation rights unless there is a danger of harm to the child. This form of custody arrangement, with sole custody to one parent and liberal visitation for the other parent, is still the predominant method used in the majority of divorce situations involving children.



Joint or shared custody, on the other hand, is an attempt to allow both parents a voice in the major decisions involved in the raising of a child. Joint custody is generally divided into two separate rights: joint physical custody (actual custody of the child); and joint legal custody (rights to share in important decisions regarding the child). While both parents may be awarded joint physical custody of a child, one parent is generally still awarded sole physical custody of the child, with the other parent being allowed reasonable visitation privileges. However, both parents are awarded joint legal custody of the child. This rather confusing terminology simply means that both parents will continue to share the rights and responsibilities that come with parenthood. They will both have a right to jointly make the major decisions that will affect the childs life: religious, educational, medical, and social decisions. Naturally, the parent with actual physical custody for the majority of the time is allowed individual control over the minor day-to-day decisions that must be made. In many joint custody situations, the actual physical custody time a child spends with each parent mirrors sole custody situations. It is the decision-making process affecting the child that is the responsibility shared by the parents.



Divided or alternating custody is another form of custody (in some areas this is referred to as split custody; in others, this is referred to a joint physical custody). Under this form of custody, each parent is awarded actual physical and legal custody for alternating periods of time. A child may be awarded to each parent for 6 months out of a year, or for alternating months or weeks. This type of custody arrangement is not generally favored by either the courts or child psychologists. It is seen as emotionally difficult for a child to be continually shifted back and forth between each parent, without a sense of where their “home” is truly located. In some situations, however, it may be appropriate.

Another alternative, which has also proved to be difficult for the children involved is also known as split custody. This type of custody has been used in the past to attempt to achieve a technical fairness when there is more than one child by giving each parent physical custody of one or more of the children. For the children involved, however, this constitutes not only a splitting up of ones parents but also a forced separation from ones siblings. Arrangements of this type are not favored by courts.



Currently, there seems to be a general national trend towards approval of joint custody arrangements. The encouragement of frequent and continuing contact with both parents is clearly preferable to fostering single-parent childhoods for children of divorce. These types of arrangements work well and are a benefit to the child, however, only if both parents can maturely cooperate in the necessary decision-making. For joint custody to be successful, both parents must be willing to compromise for the sake of the child, and both parents must be willing to consider the well-being of the child as the most important factor. In situations where there is genuine hostility between the parents, however, one parent should generally be granted sole physical and legal custody. This is often the clearest and most definite method to establish which parent has the necessary authority to make the major decisions.



Some states have established a legal preference for joint custody, while others clearly state that there is no preference for one particular type of custody. Most states specifically allow for joint custody, while others have no particular statutory authorization for any type of shared custody. In all states, however, there is legal precedent to allow custody arrangements which are most beneficial to the children involved.

The most recent trend in custody legislation and court decisions provides one of the most common-sense approaches to the problem. Increasingly, courts are looking at a childs day-to-day circumstances in an effort to determine which parent has been the primary care-giver of the child. The parent who has provided most of the day-to-day care for the child during the marriage is then considered to be the most likely candidate to continue on as the primary custodian of the child after the divorce. The preference is given to the parent that has actively participated in caring for the child and performed the majority of the parenting activities: preparing meals, readying the child for sleep, sharing in their playtime, dealing with medical problems, participating in their education, etc.

This method does not presuppose that either parent has an entitlement to being awarded custody, but rather is based on an examination of the reality of the burdens of parenthood. The decision is based on the practical considerations of which parent has provided the most time, care, and guidance to the child prior to the actual divorce. It allows each parent an equal right to earn the custody of a child by providing care for the child before the divorce proceeding begins. This method of selection of the parent to have physical custody places the greatest emphasis on who has been providing the most parental care for the child prior to the divorce. Selection of the primary care-giver as continuing custodian generally fosters a home life of stability and continuity for the child. In the family upheaval caused by divorce, this factor deserves considerable attention.

Visitation



In any custody arrangement, and in all states, the parent who is not awarded actual physical custody of a child has a legal right to reasonable and frequent visitation with the child. Unless there is a genuine and substantiated fear of emotional or physical harm to the child, such visitation is generally allowed on an unsupervised basis and in the non-custodial parents home. A court does have the authority to completely deny any visitation to a parent who has abused a child. In most cases, however, reasonable visitation is standard. When, where and how long such visitation should be is one of the major decisions that you and your spouse will have to work out as you discuss your childrens future.



Visitation should be structured to allow frequent contact between the non-custodial parent and the child and should attempt to fit into the childs normal schedule. The schedule should be firm enough to allow for a degree of long-term planning, but flexible enough to allow for reasonable changes. Remember that any visitation schedule is only a starting point. Reasonable adjustments can be made as you and your spouse become more comfortable in your roles as divorced parents. Visitation is as much the childs right as it is the parents.

As you approach the decisions on visitation, you should remember certain points. You should remember and keep in mind that:

?   Visitation with the other parent is necessary and helpful for your childs normal development and future welfare.
?   Visitation should be a pleasant and positive experience for both the parents and for the child.
?   Visitation is a time for the parent and child to be with each other and enjoy each others company and should be maintained on a clear schedule and without interference.
?   Visitation exchanges may be the only time that you see your spouse after the divorce. Both of you should show mutual respect for the other while in the childs presence.

As you and your spouse discuss specific visitation terms, you should make every effort to insure that both of you are treated fairly regarding visitation. As you discuss the amount of visitation, put yourself in the others place. Imagine that your only contact with your child will be the visitation which is agreed upon. You would want it to be as liberal and as frequent as possible. An agreement which is fair and reasonable for both parents will generally be the best for your child.

Modification of Custody and Visitation Terms



Finally, in all states, any custody and visitation agreements which are reached between parents remain subject to court modification. Of all the terms of your marital settlement agreement, the terms which relate to the care and custody of your children will receive the closest scrutiny by a court. The court has total authority in this area and has the power to totally disregard any agreement that is felt to be harmful to the children. In many states, in fact, the court has the authority to appoint a lawyer who will represent the interests of the child in a contested custody situation. This court-appointed legal guardian of a childs legal rights is referred to generally as a guardian ad litem.



In the vast majority of cases, however, a court will accept reasonable custody and visitation provisions contained in marital settlement agreements, particularly if it appears that such agreements were obtained through thoughtful and mature negotiation. Most judges, however, are conservative when it comes to the rights of children and will not favor any unusual custody arrangements that fall outside of the traditional boundaries. Recognize also that although the court which handles your divorce will have the right to modify your custody agreement at any time in the future, it is much more difficult to have such modifications made after your divorce is finalized. For the sake of promoting a sense of stability in a childs life, courts are somewhat reluctant to make changes in settled custody arrangements. For this reason, you and your spouse should work diligently to attempt to initially fashion a fair agreement for custody and visitation.

As you examine your own lives and consider the realities of custody and visitation, keep these legal trends in mind. They are what guide most courts in their deliberations of custody disputes. You should also refer to the state appendix for the details of your states particular laws regarding child custody. Decisions on custody and visitation, however, are best made by both parents in a cooperative manner without the involvement of courts and lawyers. Cooperating parents can adopt any practical arrangement that provides a reasonable resolution to the difficult problems of dividing a childs time between two parents who no longer desire to live together.

Both parents deserve an opportunity to interact with their child during childhood. More importantly, your child deserves to have both of you available for love, affection, and guidance as he or she grows up. You should make every possible attempt to work out a reasonable child custody arrangement that is satisfactory to both of you and your child. However, if you and your spouse are unable to reach an agreement, the use of an impartial mediator may be useful. In child custody disputes, mediation is the preferred first alternative for providing a solution. If personal negotiation and mediation both fail to help you achieve an agreement, a resort to the legal process may be necessary. However, keep in mind the tremendous psychological and emotional toll that a bitter court battle over custody can have on both you and your child. If your spouse hires a lawyer to engage in a custody battle, you should, however, seek legal assistance immediately.

Factors for Consideration





In most states, judges are provided with a specific list of items which have been determined to be relevant to custody decisions. The factors are provided only as guidelines and there are generally no mandatory requirements that each factor be considered. They are used as a framework by which to approach the complex set of circumstances that influence the decision of which parent should be awarded custody of a child.

The wishes of the parents and of the child are almost universally considered to be relevant, particularly if the child is old enough to have a mature and intelligent choice. Marital misconduct is not considered at all in many states to be relevant, unless the misconduct has a direct bearing on the parents relationship with the child.

The following is a list of the most important factors that are in use in courts throughout the United States. A few states do not list specific factors in their statutes. For those states, this general list of factors may be used. Please check the Appendix for the laws regarding custody in your particular state.

?   The age and sex of the child;
?   The physical, emotional, mental, religious, and social needs of the child;
?   Which parent provides the primary care for the child;
?   The capability and desire of each parent to meet the childs needs;
   ?   The preference of the child, if the child is of sufficient age and capacity to form a meaningful opinion;
?   The love and affection existing between the child and each parent;
?   The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
?   The desire and ability of each parent to allow an open, loving, and frequent relationship between the child and the other parent;
?   The wishes of the parents;
?   The childs adjustment to his or her home, school, and community;
?   The mental and physical health of all individuals involved;
?   The relationship of the child with parents, siblings, and other significant family members;
?   The material needs of the child;
?   The stability of the home environment likely to be offered by each parent;
?   The education of the child;
?   The advantages of keeping the child in the community where the child resides;
?   The optional time for the child to spend with each parent;
?   Any findings or recommendations of a neutral mediator;


?   A history of violence between the parents or a history of child abuse; and


?   A need to promote continuity and stability in the life of the child.

In addition, there are other factors that a court will take into consideration when joint or shared custody is an issue. These factors relate to the ability of the parents to cooperate and to the practical aspects of allowing joint custody. These factors are as follows:



?    The ability of the parents to cooperate and make decisions jointly;
?    The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent;


?    Whether the past pattern of involvement of the parents with the child reflects a system of values and mutual support which indicates the parents ability as joint custodians to provide a positive and nourishing relationship with the child;
?   The physical proximity of the parents to each other as this relates to the practical considerations of where the child will reside;
?   Whether an award of joint custody will promote more frequent or continuing contact between the child and each of the parents;
?   The permanence, as a family unit, of the existing or proposed custodial home;
?   The nature of the physical and emotional environment in the home of each of the persons awarded joint custody;
?   The willingness and ability of the persons awarded joint custody to communicate and cooperate in advancing the childs welfare;
?   Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
?   Whether both parents have actively cared for the child before and since the separation;
?   Whether one or both parents agree to, or are opposed to, joint custody.

As you examine your particular situation, use the above factors to attempt to realistically assess what type of child custody and visitation arrangements would be best suited to your family. Remember that you and your spouse are in the best position to clearly understand the particular circumstances that influence your lives and the life of your child. Although a judge will use a list of factors similar to those presented here to make custody decisions in contested cases, a court decision will never be as meaningful to a child as one which his or her parents have worked out in an amicable and loving manner.

The Childs Bill of Rights



In addition to the various factors that courts consider, an outline of the rights of children was developed from Wisconsin Supreme Court decisions and is now used throughout the United States. Delaware recently enacted legislation that makes it a requirement that parents sign an affidavit that they have read and understand these rights. This Childs Bill of Rights is useful in reminding parents involved in a divorce that there are certain important rights that their children are entitled to have considered during any discussions relating to custody and visitation. A review of these rights can help each of the parents to better view the effects of their divorce through the eyes of their child. Of all of the factors that you and your spouse will consider in your discussions on child custody and visitation, these are the most important.



The Childs Bill of Rights is as follows:

      The right to a continuing relationship with both parents;

?   The right to be treated as an important human being, with unique feelings, ideas, and desires;

      The right to continuing care and guidance from both parents;

?   The right to know and appreciate what is good in each parent without one parent degrading the other;

?   The right to express love, affection, and respect for each parent without having to stifle that love because of disapproval of the other parent;

?   The right to know that a parents decision to divorce was not the responsibility of the child;

      The right not to be a source of argument between the parents;

      The right to honest answers about the changing family relationships;

?   The right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans;

?   The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.

Child Custody Jurisdiction



Related to the actual custody decisions is the issue of which specific state has the proper authority and jurisdiction to hear a child custody case. All 50 states have now enacted a uniform law relating to jurisdiction in custody matters: The Uniform Child Custody Jurisdiction Act. This legislation was passed in an effort to create a uniform nationwide system for determining which individual state should be the proper forum for custody decisions in every situation. It is an attempt to deal with the problems of child-snatching by parents who are dissatisfied with a particular states custody decision.



In the past, some parents who have lost custody battles have taken their children across state lines in an attempt to have another states court award custody to them. This new uniform legislation provides a set of standardized guidelines to determine which single state should have the sole power and authority to decide the custody of a child in all situations. The decision as to which state will have jurisdiction is based on a variety of factors, such as: the length of time the child has resided in the state, whether there has been any previous court proceedings concerning the childs custody; the residency of both parents, etc.



If you and your spouse: (1) have never before been involved in any child custody proceedings concerning your children; and (2) are both able to agree upon the arrangements regarding your childs care; and (3) both live in the same state; then, you may assume that the state that you both live in presently is the state with the proper jurisdiction to decide your childs custody. If, however, you or your spouse or child have previously been involved in child custody litigation in another state, you will need to consult a lawyer for advice relating to the court with proper jurisdiction in your particular situation.






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Child Custody Questionnaire

What is your childs full name?    

What is your childs birth date?    

In what city and state was your child born?    

Have there ever been any previous court proceedings regarding custody of your child?    
   (If YES, describe in full; indicating dates, city, state, name of court, and outcome).
   __________________________________________________________________
   __________________________________________________________________

Where does your child currently live?    
   With whom?    
   For how long?    

What is your educational level?    
   Your spouses?    

Do you or your spouse have any children by a previous marriage?    
   If YES, list names, ages, and whereabouts.    

Do you have any specific physical or emotional health problems? (if YES, please describe).
   __________________________________________________________________
   Your spouse?    
   Your child?    

Does your child have any special medical needs? (If YES, please describe).    
   __________________________________________________________________
   Is any special treatment required?    
   Any special medication?    

Who is your childs doctor?    

Who is your childs dentist?    
Who takes the child to the doctor/dentist?    

Does you child have any special educational needs? (If YES, please describe).    
   __________________________________________________________________

What school or day care does your child currently attend?    
   For how long?    
   Who is your childs teacher?    
   Who takes your child to school or day care?    
   Who helps with homework?    
   Who attends parent/teacher conferences?   

Who prepares the childs meals?    
   What is your childs favorite food?    
   Who does the grocery shopping?    
   Who does the dishes?    

Do you read to your child?    
   What is your childs favorite story?    

Is your child involved in any sports activities? If YES, please describe).    
   __________________________________________________________________
   Who goes to the games?    
   Who is the coach or teacher?    

Is your child involved in any music, crafts, or art activities? (If YES, please describe).   
   __________________________________________________________________
   Who takes your child or participates?    
   Who is the teacher?    

What is your religious affiliation?    
   Your spouses?    
   Your childs?    
   Does your child attend church?    

When was the last time that you or your spouse took your child to the following? (Indicate when, which parent or both).
   Library     Museum __________________________________
   Zoo        Movie ___________________________________
   Ballgame     Playground _______________________________
   Your work     Bike ride/hike _____________________________

For the following questions, please answer and explain in detail in your own words regarding both you and your spouse:

Which of you is more likely to allow the child frequent and continuing contact with the other parent?
   You:      
         
   Your spouse:    
         

Describe the love, affection, and other emotional ties which exist between each of you and your child:
   You:      
         
   Your spouse:    
         

Describe the ability of each of you to provide for your childs basic needs (food, clothing, shelter, medical care):
   You:      
         
   Your spouse:    
         

How long has your child lived with you in a stable environment?
   You:      
         
   Your spouse:    
         
In your opinion, in which home will your child receive better ethical, moral, and spiritual guidance?
   You:      
         
   Your spouse:    
         

In your opinion, in which home will your child find the most love and affection?
   You:      
         
   Your spouse:    
         

In your opinion, in which home will your child have the most educational enrichment and opportunities?
   You:      
         
   Your spouse:    
         

In your opinion, in which home is the child most familiar with the schools, neighborhood, and community?
   You:      
         
   Your spouse:    
         

Describe each of your efforts at the discipline of your child:
   You:      
         
   Your spouse:    
         

Has there ever been any evidence of spouse or child abuse?
   You:      
         
   Your spouse:    
         
Describe the physical, mental, and moral fitness of both you and your spouse:
   You:      
         
   Your spouse:    
         

If your child is of sufficient intelligence and understanding to form an opinion, do you feel that your child has a preference regarding who should retain custody?
   You:      
         
   Your spouse:    
         

Which of you has been the parent who has provided the primary day-to-day care for the child?
   You:      
   Your spouse:    

Do you feel that you should have custody of your child?    

Do you feel that you and your spouse would be able to effectively and peacefully share in making the major decisions regarding your child in the future? (For example: which school to attend, which doctor to visit, etc.).   

What visitation should be allowed the parent who does not have physical custody of your child? (Include times and dates).
   Contact during the week?    
   Contact on weekends?    
   Contact on school holidays?    
      Which holidays?    
         
         
   Contact on winter vacation?    
   Contact on spring vacation?    
   Contact on summer vacation?
Custody and Visitation Worksheet


Which parent will have actual primary physical custody of the child? (In other words, with whom will the child generally live?)    

Will both parents share in the major decisions regarding the child?    
   
   If YES, do you desire a joint custody arrangement?    
   If YES, on what decisions will you both jointly confer?
      Education/school choice    
      Medical care    
      Dental care    
      Religious training    
      Vacation dates    
   If YES, does the non-custodial parent have the right to be notified in advance of any up-coming decisions?    
   If YES, does either parent have veto power over the decisions of the other?    

Will the custodial parent have the right to move out of the state with the children without the other parents consent?    

Will both parents have the right to be informed of any change of address or telephone number of the other?    

On what dates and times will the non-custodial parent have visitation?
   
   Weekends:    
   Weekdays:    
   Holidays:    
      (New Years Day, Martin Luther King Jrs Birthday, Valentines Day, Easter, Mothers Day, Memorial Day, Fathers Day, 4th of July, Labor Day, Halloween, Thanksgiving, Christmas/Hanukkah, the childs birthday, any other special days)
   Vacations:    
      (Winter, Spring break, Summer)

Will the non-custodial parent be allowed to see the child at any other times if reasonable notice is provided? _________

Will the non-custodial parent have the right to be informed about the childs activities, illnesses, school, etc.? ________

Will the non-custodial parent have the right to obtain the childs school, medical, or dental records? _________

Will there be any visitation privileges for grandparents?    
   
   If YES, when?    

What last name will the child use?    


Information
Child Support

A. General Overview

Closely related to the decisions that must be made regarding child custody are those decisions relating to the support of a child. In most instances, the parent who does not have physical custody of a child must provide child support to the parent who has custody. Child support agreements are essentially financial in nature. A child support worksheet is included in this kit to allow you to gather the necessary information for these decisions.

Before you and your spouse consider the legal aspects of child support, you should both understand that child support terms are the provisions of marital settlement agreements and divorce orders that are most often defaulted upon or ignored. Tragically, this has resulted in the creation of a new class of poverty-level individuals: children of divorced parents. The majority of court-ordered child support payments are neither paid in full nor on time. Nearly one-third of the children entitled to child support receive no support at all. The reasons for this tragedy are many, but perhaps the most important stems from the frustration of the non-custodial parent having to pay for the support for children that he or she does not live with or raise. If you and your spouse can come to a reasonable and workable agreement regarding the custody and visitation arrangements for your child, there will be a far greater chance that your child support agreement will also be seen as reasonable. As you approach your child support discussions, please keep these tragic statistics firmly in mind.

B. The Law of Child Support

Both natural parents of a minor child have a legal obligation to provide adequate support for the child until the child reaches 18 years of age (21 in some states). This legal duty includes providing food, clothing, shelter, medical care, and education for a child. This is the law in every state. Parents of adopted children also have this same obligation. Child support, however, is not merely the delivery of a monthly support payment. It is a legal, moral, and ethical obligation to provide full care and support for your offspring.

Divorce does not end this legal obligation for support. It merely complicates the duty. Both parents have an equal duty to support their children. In the vast majority of divorces which involve children, however, the mother is awarded physical custody of those children. Also, in the majority of family situations, it is the mother who earns a disproportionately lower income than the father. Thus, in most divorce situations involving children, there will be an immediate and definite need for considerable child support to be provided by the father. Regardless of which parent has physical custody and even when the incomes of both parents are equal, both parents still need to provide their fair share of support for the child. A child should not be forced to suffer economically because of the divorce of his or her parents.

When a single family unit is divided into two households upon divorce, the total living costs will naturally escalate. Two homes must be maintained instead of one. Two sets of furniture, appliances, and housewares must be provided. Two cars, two televisions, two of almost every household item will need to be purchased and maintained. Unfortunately, the income of the divorced family will not increase. In many cases, in fact, it may actually decrease as the parent with custody may find it more difficult to maintain a full-time job. Because both parents are no longer able to share their time with the child as easily, child care costs may also increase.

The goals of child support laws are to achieve a fair division of the income of both parents in order to provide for the satisfactory support of the children of a marriage. As much as is possible, a child should be entitled to share in the income of both parents, despite their divorce.

Recent federal legislation (the Family Support Act of 1988) requires each state to provide some type of formula or guidelines for the determination of child support awards. In the attempt to provide specific financial guidelines for child support provisions, many states have adopted detailed legislation and rules regarding how to arrive at a fair support amount. Some states have provided only simple formulas. Later in this packet, a general set of guidelines for determining child support will be presented.

In recent years, these child support guidelines have tended to become more detailed, specific, and mathematic. The newest versions of child support legislation are full of various charts and financial formulas for determining the correct amount of support. These detailed guidelines are an attempt to take the mystery out of the manner in which a court determines how much child support to award. In most states which have such guidelines, however, the rules are only to be used to provide a structure for determining a minimum amount of child support. A court has the authority to order more or less child support if necessary.

While each states guidelines may be somewhat different, they all generally require that if the non-custodial parent has sufficient income, he or she must provide a specific level of monthly support to the parent who has custody of the child. Increasingly, states are adopting legislation that goes beyond simply providing a monthly payment for child support. Some of these recent laws may require various non-monetary forms of support: that a parent provide health insurance, dental insurance, life insurance for the parent with the child as sole beneficiary, or that the family home not be sold for a particular period of time. All of these provisions are an attempt to provide sufficient security for a child of divorce to prevent the child from requiring welfare or other social service support from the state. Please check the Appendix for information on your states specific statutory child support guidelines.


C. Factors for Consideration

In addition to any specific detailed statutory child support guidelines, most states also provide a list of factors which are considered relevant in child support cases. A judge will determine how much weight to give each factor depending on the unique circumstances of each case. You and your spouse should use this general list of factors to focus your discussions regarding child support. Please check the Appendix for the factors in use in your state. Some states do not provide a list of factors in their statutes. Residents of those states may use this list as a general guideline for their negotiations regarding child support.

The factors that are considered pertinent in most states revolve around two specific areas: (1) the needs of the child; and (2) the ability of the parents to pay support. Each of these basic factors has many sub-factors, which are outlined below. Aspects of the first main factor, the needs of the child, are generally used to determine the minimum amount of child support that is necessary to provide the child with the basic comforts of life. Considerations regarding the second major factor, the ability of the parents to pay, are then often used to establish the maximum amount which the supporting parent should pay. The standard of living of both parents is considered in this decision.

The general factors which are considered pertinent to decisions relating to child support are as follows:

r   The financial resources of the child;
r   The age and health of the parents;
r     The standard of living the child would have enjoyed if the marriage had not been dissolved;
r   The physical and emotional conditions and educational needs of the child;
r   The financial resources, needs, and obligations of both the non-custodial and the
   custodial parent;
r   Any excessive expenditures, destruction, or concealment of assets;
r   The occupation of each parent;
r   The earning capacity of each parent;
r   The amount and sources of income of each parent;
r   The vocational skills and employability of each parent;
r   The age and health of the child;
r   The childs occupation (if old enough to work);
r   The vocational skills of the child (if old enough to work);
r   The employability of the child (if old enough to work);
r   The needs of the child;
r   The standard of living and circumstances of each parent;
r   The relative financial means of the parents;
r   The need and capacity of the child for education, including higher education;
r   The responsibility of the parents for the support of others;
r   The value of services contributed by the custodial parent;
r   The desirability of the parent having either sole custody or physical care of the child remaining in the home as a full-time parent;
r   The cost of day care to the parent having custody or physical care of the child if that parent works outside the home, or the value of the child care services performed by that parent if the parent remains in the home;
r   The tax consequences of child support to each parent.

A very important factor which is not listed here, but that you and your spouse must take into consideration, is that the court always has absolute authority over child support decisions. This power is retained regardless of any agreement that you may reach. The obligation for child support can not be bargained away in your negotiations. Courts are very protective of the rights of a child to be supported by both parents and will not accept the terms of any settlement agreement that does not provide for reasonable levels of support. Although courts will often accept the child support terms that parents agree to in settlement negotiations, they can and will ignore any agreements they find unreasonable. Ultimately, it is the court which has final authority to issue support orders for dependent children and they take that power very seriously. Much as you can not trade away the custody of your child for monetary rewards, you can not bargain away your childs rights to support. The marital settlement agreement that you and your spouse sign will bind the two of you, but will not bind your children. Their rights to reasonable support may be enforced by a court if necessary, despite you and your spouses agreement.

The income tax aspects of child support may be an important factor in your considerations.


D. Enforcement and Modification of Child Support

Of all the provisions of a final divorce, child support obligations are, unfortunately, the ones which are most often ignored. Over one-half of court-ordered child support payments are not paid in full or on time. Nearly one-third of qualifying children receive no child support at all. Recent studies have shown that the income level of the divorced parents has no bearing on whether a child will receive adequate child support. Unfortunately, wealthy parents are just as likely to default on child support payments as poor parents.

There is now a concerted national effort to collect and enforce overdue child support payments. This effort is backed by very comprehensive and powerful laws which are beginning to turn the tide of non-payment of child support. In recent years, all 50 states have enacted legislation to deal with this problem: the Uniform Reciprocal Enforcement of Support Act. Many states have also enacted other strict laws dealing with methods to enforce child support obligations. In addition, the federal government has enacted very tough child support enforcement legislation.

Child support provisions in a marital settlement agreement or final divorce order are always subject to modification, regardless of any attempt to limit such future modification. The courts always have authority to increase or decrease the amount of the support. However, modifying a child support order in the future involves a showing of changed circumstances and an often lengthy lawsuit and court hearing. It is far easier to attempt to anticipate any lifestyle and income changes in advance than to resort to the courts to keep changing the amount of child support.



E. General Child Support Guidelines

The guidelines provided here are just that, guidelines. They are not intended to be an ultimate method for determining support payments in all cases. They should be reviewed and used while considering all of the other relevant factors in your particular situation. The determination of the proper amount of child support in each case will always be difficult. A careful balance must be obtained between providing an adequate level of support and overburdening the parent who must pay the support. If the support payments are set at a level which becomes a tremendous financial burden to the paying parent, there will be a tendency and temptation to default on the payments. On the other hand, if the payments are too low, the child will suffer the consequences. Both parents must work together carefully to actually determine a fair and reasonable amount of support. Care must be taken to keep the negotiations on a mature and rational basis. Discussions involving child support have the very real potential of deteriorating into hostile arguments. Of all of the aspects of divorce, child support obligations have spawned more post-divorce lawsuits than any other.

Many different methods of determining the amount of child support payments have been utilized around the country. A mathematical formula method of determining child support has been adopted recently in many states. Generally, this method consists of (1) determining the actual monthly needs of the child based on the particular circumstances of the family; and (2) determining the ability of the parents to pay. Other methods rely upon charts of child support amounts. The method of determining the proper amount of child support which is provided in this packet was adapted from the guidelines used in many different states and is a combination of the most common methods in use. It attempts to take both parents economic situations into account. Your particular state may use a similar method or a variation. You should refer to the Appendix for information regarding your states specific requirements. In addition, you may wish to check with the clerk of the court in the county where you live to see if there are any local child support guidelines or rules in effect. In addition, many states have specific child support worksheets which are to be used. Check the Appendix and with your court clerk.

These guidelines are provided as an example of how various states have decided to calculate minimum child support amounts. For your situation, you should use the highest amount provided by the calculations as a starting point for your discussions. Other factors, in addition to income and deductions, may then be used to adjust the amount accordingly.

This type of child support guideline uses a chart of minimum child support amounts. To use this method, you must first determine the monthly net income of each parent. To obtain this figure, combine all of the income of each parent from any source. Then, subtract the mandatory deductions from this income as shown on the following worksheet. This will give you the monthly net income of each parent for child support purposes. If there are seasonal or monthly fluctuations in the parents income or deductions, you may wish to determine the income and deductions on an annual basis and then divide that amount by 12 for the net monthly income.

Next, combine the two monthly net income amounts for a total net family income. Using this combined net monthly family income, consult the child support chart to determine the total minimum amount of child support which is necessary. Always go to the next higher level if your combined monthly income falls in between the amounts shown. As with all decisions concerning children, the courts will always favor the decision which benefits the children the most. Remember, the amount shown is only the general minimum amount necessary and the actual amount of support required may be higher (or even lower) than this amount, depending on the particular circumstances of your situation. Federal law requires that if a judge decides to award less child support than is warranted by a states guidelines, the specific reasons must be stated. Also remember that your particular state may have a slightly different set of guidelines or various other charts for determining support. Note also that the amount shown on the chart is the amount of support required by both parents together. The amount of the non-custodial parents individual share is determined as explained in the next paragraph.

After the amount on the chart is determined, the non-custodial parents share must be determined. Divide the net monthly income of the parent without custody by the total net monthly family income to determine the fractional or percentage share of the total child support. This figure multiplied times the figure from the support guideline chart will be the minimum monthly support required. To this amount should then be added any child care costs which are required to enable the parent with custody to obtain employment.

For example, Parent A has an income of $1,350 per month, with allowable deductions of $350 per month, for a net individual monthly income of $1,000 per month. Parent B has an income of $2,700 per month, with allowable deductions totaling $700, for a net individual monthly income of $2,000 per month. The combined net family income would be $3,000 per month. They have two children, so the total child support amount shown on the chart is $972. Parent A incurs $168 per month child care expenses in order to hold a job. Thus, the total minimum amount of family child support would be $1,140 per month.

Parent A has custody of the children. Because Parent B contributes two-thirds of the total family income ($2,000/$3,000 or 2/3), Parent Bs share of this total amount will be 2/3 of the total amount of family support or $760 ($1,140 X 2/3 = $760). Only the parent without physical custody of the child (in this example: Parent B) will be required to make the child support payment to the parent with custody (Parent A). Parent As share of the support amount is assumed to be used to provide the household in which the child lives.

This final figure is only a determination of the general minimum amount of child support necessary. The actual amount of the monthly payments may be more or less. This final general minimum figure should be adjusted up or down based on the following factors and any other relevant information:

r   Any extraordinary medical, dental, or health expenses;
r   Any independent income of the child;
r   Any seasonal variations in a parents income;
r   The age of the child, taking into consideration the greater needs of older children;
r   Any special needs that have previously been met by the family budget;
r   The total assets available to the parents and the child;
r   The custody arrangements for the child. In situations where there is joint physical custody, the actual amount of time the child spends with each parent may be particularly relevant.
The amount of the actual payment as calculated using this method depends upon the income, deductions, and child care expenses of both parents. If the income of the parent with custody is very low, the non-custodial parent will be required to pay all or the bulk of the amount of child support shown on the chart. On the other hand, if the income of the parent with custody is very high and that of the non-custodial parent is low, the required child support payment may be very low.

INSTRUCTIONS
Child Support Worksheet

   This form provides you with a guideline to determine child support payments.  The guidelines provided here are just that, guidelines. They are not intended to be an ultimate method for determining support payments in all cases. They should be reviewed and used while considering all of the relevant factors in your particular situation.  A careful balance must be obtained between providing adequate support and overburdening the parent who must pay.

Child Support Worksheet

Net Monthly Income of Parent with Custody:
   Gross Monthly Income
   Wages, salary, bonuses     $    
   Interest and dividends     $    
   Business income     $    
   Unemployment/Social Security     $    
   Income from other sources     $    
   
   Total Gross Monthly Income     $    

   Monthly Deductions
   Income taxes withheld     $    
   Social Security withheld     $    
   Union dues withheld     $    
   Childrens health insurance premiums     $    
   Mandatory retirement withheld    $    

   Total Monthly Deductions     $    

Total Net Monthly Income of Parent With Custody
   Total Gross Monthly Income     $    
                              Minus (-)
   Total Monthly Deductions     $    
                              Equals (=)
   Total Net Monthly Income (A)    $    

Net Monthly Income of Parent without Custody:
   Gross Monthly Income
   Wages, salary, bonuses     $    
   Interest, dividends     $    
   Business income     $    
   Unemployment/Social Security     $    
   Income from other sources     $    
   
   Total Gross Monthly Income     $    
   Monthly Deductions
   Income taxes withheld     $    
   Social Security withheld     $    
   Union dues withheld     $    
   Mandatory retirement withheld     $    
   Childrens health insurance premiums     $    

   Total Monthly Deductions     $    


Total Net Monthly Income of Parent Without Custody
   Total Gross Monthly Income     $    
                              Minus (-)
   Total Monthly Deductions     $    
                              Equals (=)
   Total Net Monthly Income (B)    $    


Total Combined Net Monthly Family Income:

   Net Monthly Income of Parent With Custody (A)    $    
                              Plus (+)
   Net Monthly Income of Parent Without Custody (B)    $    
                              Equals (=)
   Combined Net Monthly Family Income (C)     $    

Use the Combined Net Monthly Family Income figure (C) to find the total minimum amount of child support required on the following chart. If this figure is over $4,200, please use the percentages listed following this chart. To this amount is added any child care expenses that are required in order that the parent with custody may obtain employment.

   Minimum Child Support from Both Parents     $    
                              Plus (+)
   Required Monthly Child Care Expenses     $    
                              Equals (=)
   Minimum Total Child Support     $    

Using this figure (Minimum Total Child Support), determine the minimum child support necessary from the parent without custody as follows:

   Monthly Net Income of Parent Without Custody (B)   $    
                              Divided by (/)
   Combined Net Monthly Family Income     $    
                              Equals (=)
   Non-Custodial Parents percentage share        %
                              Times (X)
   Minimum Total Child Support from Both Parents     $    
                              Equals (=)
   Monthly Minimum Child Support to be paid     $    

   Remember that this final figure is a general minimum amount and is subject to adjustment based on the other factors in your particular situation.

   
Minimum Child Support Guideline Chart

This chart is similar to charts used in various states throughout the country. In general, it tends to be slightly higher than those in use in most states. However in nearly all cases, if the figures in this chart are used for your calculations, your child support decisions will be accepted by the court.

Combined
Monthly         One         Two        Three        Four        Five        Six
Income        Child        Children        Children        Children        Children        Children

500         48         48         49         49         50          50
750        177         274         279         282         285         288
1000        231         359         450         507         520        525
1100         251         390         489         551         600        620
1200         271         421         528         595         648        693
1300         291         452         566         638         695        744
1400         311         483         605         682         742        794
1500         332         516         645         728         792        847
1600         353         548         686         773         842        901
1700         374         580         726         819         892        954
1800         395         612         767         865         942        1007
1900         416         645         807         910         992        1060
2000         437         677         847         956        1042        1113
2100         457         709         887        1000        1091        1166
2200         476         739         924        1042        1136        1215
2300         495         768         961        1084        1182        1264
2400         514         798         999        1126        1228        1313
2500         532         828        1036        1167        1274        1362
2600         551         857        1073        1209        1319        1411
2700         570         887        1110        1251        1365        1460
2800         589         917        1147        1292        1411        1509
2900         607         945        1176        1332        1453        1554
3000         624         972        1209        1370        1495        1598
3100         642         999        1243        1408        1536        1643
3200         659        1026        1276        1446        1578        1687
3300         677        1052        1310        1484        1619        1731
3400         694        1079        1343        1521        1660        1775
3500         712        1106        1377        1559        1702        1819
3600         729        1133        1410        1597        1743        1863
3700         747        1160        1444        1635        1785        1907
3800         764        1187        1477        1673        1826        1951
3900         778        1208        1510        1704        1859        1986
4000         791        1227        1534        1731        1889        2018
4100         804        1246        1559        1758        1919        2050
4200         817        1265        1583        1785        1949        2082


For combined net monthly income amounts over $4200, use the following percentages to determine the minimum child support payments:


1 Child:      20% of the net monthly combined income

2 Children:      30 % of the net monthly combined income

3 Children:      38 % of the net monthly combined income

4 Children:      43 % of the net monthly combined income

5 Children:      47 % of the net monthly combined income

6 + Children:      50 % of the net monthly combined income

Appendix A
Divorce Law Summaries for all 50 States
Provided under agreement with copyright holder,
© Nova Publishing Company 2004
(Click on the appropriate state link below)

ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
GEORGIA
HAWAII
IDAHO
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY
NEW MEXICO
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
OHIO
OKLAHOMA
OREGON
PENNSYLVANIA
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
VIRGINIA
WASHINGTON
WEST VIRGINIA
WISCONSIN
WYOMING

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