Child custody and guardianship are legal terms describing both the legal and practical relationship between a parent and child. These terms include Legal Custody, which is the right of a parent to make decisions for the child and Physical Custody, which is the parent’s duty to care for the child.
Child custody may be awarded to both parents or to just one parent. If the relationship is an amicable one, parents can often reach an agreement to determine who is awarded custody. However, in situations where the parents are in disagreement, the court will have to step in to determine child custody.
What Are the Different Classifications of Child Custody?
There are two types of child custody: Legal and physical custody.
- Legal custody: Legal custody refers to the right of a parent, or parents, to make all decisions concerning religion, education, and medical care concerning a child.
- Physical custody: Physical custody is the legal right a parent has to providing a physical home for the child.
Legal and physical custody can be awarded to one parent, both parents, or a combination of the two parents. As stated above, parents of the child can determine legal and physical custody terms amicably. However, if relations are more contentious, it may be impossible for the parents to come to an agreement. In those situations, the court will step in and determine legal and physical custody terms.
What Are Visitation Rights?
Where physical custody is awarded to one parent, visitation rights may be granted to the noncustodial parent. Visitation rights refer to the rights held by a noncustodial parent entitling them to spend time with their child or children.
Parents may agree upon a visitation schedule, however, courts may determine visitation schedules in situations where one parent has a history of violence or dependency issues. Additionally, the court may order visitation to be supervised by a court and custodial approved parent is present during all visits.
Typical examples of visitation rights for parents who live close to each other might be every other weekend, a weeknight, half of the child’s winter and spring breaks, or two to six weeks in the summer.
If the parents live farther apart, visitation schedules for the noncustodial parent may include more summer vacation and holidays to permit the parent sufficient time with their child.
Are There Different Types of Visitation Rights?
There are typically three different types of visitation rights that are awarded to the noncustodial parent. These include the following:
- Unsupervised visitation: The most common type of visitation, unsupervised visitation permits the noncustodial parent to take the child to their own home or any outing during the time of the visit. The noncustodial parent may be permitted to have the child spend the night at their home. In instances where the child is an infant, the court may order the noncustodial parent to visit with the infant child at the home of the custodial parent, until the child is accustomed to being away from the mother.
- Supervised visitation: In situations where the noncustodial parent is not permitted to be alone with the child, the court will order supervised visitation with the child. Supervised visitation is ordered where the parent has a history of violence and/or chemical and substance abuse issues.
- Virtual visitation: Virtual visitation typically takes place over the internet and may include video chatting, instant messaging and email.
Does Anyone Else Have a Right to See My Children?
When it comes to grandparents, visitation rights vary from state to state. However, most states determine grandparent visitation rights based on three circumstances:
- The relationship between the parents and whether both parents are alive
- The relationship between the parents and the child or children
- The relationship between the grandparents and the child or children.
Courts will determine visitation rights of a grandparent when considering what is in the child’s or children’s best interests.
The case Troxel v. Granville, 530 U.S. 57 (2000) provided that courts must consider a fit parent’s decision to deny a non-parent visitation rights to their child or children. So although a grandparent is permitted to petition for visitation rights, the courts will give special weight to the wishes of the custodial parent of the child.
Are There Any Issues Surrounding Visitation Rights I Should Understand?
There are multiple issues surrounding visitation rights that a parent should consider.
When a court orders visitation rights, courts will ensure that visitation rights are "reasonable." Reasonable typically means permitting parents to exercise flexibility and taking into consideration both the parents and children’s schedules. While the custodial parent has the right to disagree with any court ordered schedule, courts will make note of an uncooperative custodial parent.
While most visitation rates are open to revision based on changing circumstances and schedules of both the parent and child or children, there are instances where the court will order fixed visitation. In situations where the relationship between the parents is so strained and severe, the courts may order fixed visitation to reduce the need for continued contact between the parents. Fixed visitation removes the custodial parent from having more control over the schedule. An advantage to fixed visitation is that it provides a stable environment for a child.
What Is Child Support?
The law provides that parents have an obligation to provide monetary support for their children. Child support is paid by the noncustodial parent. The custodial parent is deemed by the courts to support the child as they are with them the majority of the time. Child support is essential monetary support that aids in the care of the children.
How Are Child Support Amounts Calculated?
Each state has their own formula established or court rules which determine how child support will be calculated. Most courts will also consider factors such as:
- The income of the parent
- The child or children’s educational, health and other needs
- The ability of the noncustodial parent to support him or herself
- The child or children’s accustomed standard of living.
What If I Refuse to Pay Child Support?
Child support is taken very seriously by the courts. If a noncustodial parent fails to pay their court-ordered child support payments, the court has different ways they may compel payment. If the owing parent refuses to pay, he or she could face jail time. Typically, the court will garnish the wages of the nonpaying parent so the funds are taken directly out of their paycheck.
When Does Child Support Terminate?
Child support is paid until one of the following conditions is met:
- The child reaches the age of 18 or 21, depending on the state where the child support order is in place.
- The child is legally emancipated.
- The child goes on active military duty.
- The child has passed away.
- The noncustodial parent terminates their parental rights and responsibilities.
- The child was adopted by another person.
There are situations where child support may be required for longer periods beyond the age of maturity. For example, if the child is in college, post-secondary or post-minority support may be ordered. This support is used to help pay for the education of the child at a college, university, vocational school, or other type of post-secondary education. Some states require child support to extend through college. This may be written in the child support agreement between the parents.
Additionally, child support can be ordered past the age of maturity if the child has disabilities and/or special needs. Where the child is unable to support him or herself due to a disability, most states have adopted the rule that parents have a duty to support their adult disabled children.
Can I Modify Child Support?
Child support can be modified due to unforeseen life events such as loss of employment, change in marital status, injury or change in household income. The noncustodial parent has a duty to prove that there has been a change in circumstances sufficient to support a change in the amount of child support payments.
There are situations where child support can be modified without going before a judge. In court ordered child support, some courts include a Cost of Living Adjustment clause. These clauses make it possible for child support payments to change each year in accord with the annual increase or decrease in the cost of living for the noncustodial parent. If one of these clauses is included in your child support order, you don’t need to go before a judge to modify your child support payment amounts.
Should I Contact an Attorney?
When it comes to your rights and the ability for you to see your children, a child custody attorney can help to explain your rights and protect your interests. Additionally, if you owe or are attempting to collect child support payments, a family law attorney can protect your rights and help you get the support you need.