FAQs About Child Custody

What is child support?
Child support is a payment by one parent (often the non-custodial parent) to the other parent for the support of their common child. (See Child Support and Visitation.) It is in the best interest of a child for both parents to be obligated to pay for the support of their child. An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.

For consultation, please contact Gary J. Gottfried, Child Custody Attorney(614) 297-1211

What is child support used for?
Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind:

A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life; and

Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities.

If the child has a wealthy parent, that child is entitled to, and therefore “needs” something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent’s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the pay or parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent’s other relationships).

Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent’s elevated standard of living despite custodial parent’s substantially lower income. Awarding supported children a percentage of a non-custodial parent’s future bonuses ensures they will share in his standard of living.

Who can be ordered to pay it?
A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

When can a child support order be changed or modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent’s financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

How long must child support be paid?
The duration of this responsibility depends upon state law. All states require both parents to be financially responsible for their child during the child’s minority, generally through the child’s high school years. A few states have extended the time for financial responsibility beyond the minority of the child. Child support can be terminated in the event of the death of the child, if the child goes on active duty in the armed forces, or if the child becomes emancipated or self-supporting.

How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

Obligor and obligee - which one is which?
The obligor is the parent that is required to pay the child support to the other parent.

The obligee (obliged) is the parent who receives the payment from the other parent.

What other items do formulas consider?

Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the custodial parent (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the non-custodial parent (the parent without primary physical custody). Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children. Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

Special Support Circumstances. In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.

Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount.

What income items do typical formulas cover?
The formula is based on the respective net incomes of the parents. Federal and state income taxes, Social Security and Medicare tax, health insurance, union dues and other mandatory expenses are subtracted from a parent’s gross income (that is, income from all sources including, but not limited to, wages and investments) to arrive at his/her net income.

After a child has been raised, is the parent who raised them able to sue for back child support?
This depends on the law in the state where the parents live. In some states, the parent who was to receive child support can collect support owed even after the children are adults. The parent who was supposed to pay child support cannot claim that the child support is too old to be collected, or that the other parent should have tried to collect sooner, except to the extent collection is barred by the statute of limitations.

What about allocation of standard of living?
Each parent is supposed to pay for child support according to his or her ability and circumstances and station in life. A parent with the higher standard of living has the obligation to ensure his or her children share in that lifestyle. A non-custodial parent cannot be forced to pay child support beyond his or her means simply to match the custodial parent’s new station in life (as where custodial parent remarries into wealthier social position).

My husband and I have decided to use artificial insemination to have a child. The donor will not be obligated to support the child
Your best protection is to buy from a sperm bank since sperm bank donors have no way of knowing if they have any kids, let alone who the mothers are. However, one of the many disputed issues in this newly developing area of the law is whether the identity of the donor should be secret or whether states should enact legislation permitting disclosure to the child of his/her biological father.

If you opt out and go private, your best first step is to see a lawyer to draw up an artificial insemination contract. However, states are divided on whether the contract is enforceable. Some states won’t enforce these contracts as a matter of public policy (parents should be on the hook for child support and should get visitation). Some enforce the contract (consenting adults can decide these things for themselves). And the law is constantly changing.

Termination of parental rights is probably the best bet if you insist on going private. Check with a lawyer to see if a private party can bring this suit and if it can be brought before the birth of the child (in California, for example, your rights can be finalized through a pre-birth Judgment of Maternity and Paternity).

Can a parent limit the amount of future child support that is to be paid to the other (custodial) parent?
Maybe. Child support is awarded in the best interests of the child. In order to limit the amount of future child support payments, the interests of the child must be adequately considered. In theory, a disinterested Guardian Ad Litem for the child would have to be appointed and represent to the court that the best interest of the child would be to limit such future support payments. This would expose the Guardian Ad Litem to the possibility of a future claim by a former child (having reached the age of majority, s/he is considered to be competent to bring a legal action on his/her own) that the limitation of child support was not in his/her best interest. Thus, these limitations are rare.

Some states, however, will consider an argument that if there is a high level of income/wealth by one or both parents, a limit to the amount of support is proper. For example, suppose that the non-custodial parent has $1,000,000 in annual earned income, which results in a guideline support amount of $300,000 to the custodial parent. In some states, the non-custodial parent may be able to argue that such a high level of support is not in the best interest of the child, and that a lower guideline support amount should be set.

My wife is delinquent on her court-ordered medical payments for our child. Can I sue her for the delinquent funds in small claims court?
Small Claims court never has jurisdiction of Family law matters (despite what you see on TV). You may need to contact Family Support Services in your city, or at your courthouse, and find out what your local rules are for the enforcement of the judge’s orders.

Can one parent be ordered to pay child support even if s/he never married the other (custodial) parent?
Yes. Child support is payable from one parent to the other for a common child, regardless of the marital status of the parents. This is very common in a paternity action, whether or not the issues of parentage, child visitation, child custody, and child support are resolved. Paternity actions to recover the cost to government for payment of Aid to Families with Dependent Children (AFDC or welfare) are commonly brought by local government agencies (such as the Office of the District Attorney) throughout the country to hold a parent responsible for child support, even when s/he has never been married to the other parent.

I’m marrying a man who has children from a previous marriage. He regularly pays his child support. Since I earn more than my fiancé can I be held responsible?
Some states, California for example, provide that a new spouse with income cannot be held liable for the support of a stepchild except under extreme circumstances. Your State may have similar exemptions. However, for the time being, and for purposes of financial safety, set up and maintain separate savings and checking accounts. That way, your funds do not become commingled with your husband’s, and a court, should the question ever arise, will always be able to calculate whose income is whose and where the funds came.

How do childcare costs get factored in?
The cost of childcare can likewise be apportioned between the parents. Because childcare costs are incurred so that a parent is able to earn income, it means that a greater amount of combined income is available for the support of the child. Since both parents benefit from the cost of childcare, this cost is divided between the parents (usually 50% each). The parent who actually pays the childcare expense receives payment from the other parent.

I am a stepparent. Do I have an obligation to support the children from my wife’s previous marriage?
No. You should not be responsible to provide for the children’s support, unless there was an adoption or you agreed to provide support in a marital agreement.

I am the biological father of an illegitimate child born to a married woman who had agreed to abort the child. Do I have to pay child support?
A biological father is responsible for paying child support unless someone else adopted the child or his parental rights were severed by court action.

If the obligor parent doesn’t pay, can visitation be stopped?
No. The child support obligation and the right to child visitation are two different issues.

Failure to pay child support is insufficient grounds to stop the right of the obligor parent to visit with his/her child. A court in the best interest of the child orders visitation, to promote love and affection with both parents, custodial and non-custodial. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be established.

On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for these needs; thus is treated as a separate issue, and does not have a determinative effect upon visitation. The obligee parent must continue to allow visitation with the child despite failure of the obligor parent to pay child support. Although this may be very hard for the obligee parent to understand, if the obligee parent frustrates the right of the obligor parent to visit with the child, the obligor parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.