Divorce with Children: What Every Parent Needs to Know about the Law

The best interests of the child standard requires the court to weigh every factor relevant to the child's welfare, including the child's age and developmental needs, the quality of each parent's relationship with the child, each parent's ability to provide a stable home environment, the child's established connections to school and community, and, for older children, the child's own preference for which parent to live with. Child-custody-lawyer and family-law-litigation counsel can evaluate the specific factors that the court will apply in determining the best interests of the child, assess whether the client's parenting history, living situation, and relationship with the child support a primary custody award, and advise on the legal strategy required to present the client's case for custody most effectively.

A joint legal custody arrangement gives both parents equal authority to participate in major decisions about the child's education, healthcare, and religious upbringing, and the courts award joint legal custody when the parents have demonstrated a capacity for cooperative decision-making, while sole legal custody is reserved for cases where the parents are unable to communicate effectively or where one parent has a history that makes joint decision-making contrary to the child's best interests. Family-court-litigation and custody-dispute counsel can advise on the specific circumstances under which a court will award joint or sole legal and physical custody, assess whether the facts of the client's situation are most consistent with a joint or sole custody arrangement, and develop the legal argument for the custody arrangement that most effectively advances the child's interests.

The child support guidelines in most states use an income shares model that combines both parents' incomes into a total gross income figure, consults a schedule to determine the presumptive total child support obligation, and then allocates that obligation between the parents in proportion to their respective shares of the combined income, and the resulting guideline amount is presumed correct but can be rebutted if the parent seeking a deviation can demonstrate that the guideline amount is unjust given the specific circumstances. Child-support and family-court-litigation counsel can advise on the specific methodology used in the applicable state's child support guidelines, assess whether the guideline amount accurately reflects the parties' actual incomes and the child's actual needs, and develop the legal argument for adjusting the guideline amount based on the specific financial circumstances and special needs of the child.

A parent who fails to pay court-ordered child support is subject to a range of enforcement mechanisms, including automatic wage garnishment through an income withholding order, interception of tax refunds, suspension of the delinquent parent's driver's license and professional licenses, seizure of bank accounts and other assets, and, in cases of willful non-payment, a finding of contempt of court that can result in fines or incarceration. Child-support and contempt-motion counsel can advise on the full range of enforcement mechanisms available when a co-parent has failed to pay court-ordered child support, assess whether the failure to pay is willful, and develop the enforcement strategy, including wage garnishment, license suspension, or contempt of court proceedings, that most effectively secures payment.

A well-designed parenting plan specifies the regular weekly and weekend visitation schedule, the holiday and vacation schedule, the procedures for communication between the child and the non-custodial parent between scheduled visits, the protocols for exchanging the child at the transfer location, and the mechanism for resolving disputes about the schedule that arise after the divorce, and the more detailed and specific the parenting plan, the less opportunity there is for conflict about its implementation. Custody-counseling and family-court-investigation counsel can advise on the specific components of a parenting plan or visitation schedule that will most effectively maintain the child's relationship with both parents, assess whether the proposed schedule is consistent with the child's age, developmental needs, and school schedule, and develop the visitation schedule that most effectively protects the non-custodial parent's right to maintain a meaningful relationship with the child.

A parent who unjustifiably withholds the child from the other parent in violation of the court-ordered visitation schedule exposes themselves to a motion for contempt of court, which can result in fines and, in egregious cases, a modification of the custody arrangement in favor of the non-violating parent, and courts have consistently held that persistent unjustified interference with the non-custodial parent's visitation rights is itself a factor that weighs against the custodial parent in any subsequent custody modification proceeding. Custody-modification and family-court-litigation counsel can advise on the legal remedies available when a co-parent is interfering with court-ordered visitation, assess whether the interference supports a motion for contempt, a request for make-up visitation, or a petition to modify the custody arrangement, and develop the legal strategy for enforcing the visitation schedule and deterring future interference.

The table below identifies the four most common categories of custody and child support disputes and the corresponding legal issues, risk management strategies, and law firm roles applicable to each.

Family-court-investigation and custody-dispute counsel can advise on the evaluation criteria that the family court investigator will apply in assessing each parent's fitness and the child's best interests, assess whether the client's home environment, parenting practices, and support network satisfy the investigator's standards, and develop the strategy for the client's presentation during the home study.

The law firm's support for a parent navigating a divorce with children extends beyond the initial custody and support determination to include the ongoing management of the co-parenting relationship, the enforcement of the custody and support orders, and the periodic review of the arrangements as the child's needs and the parents' financial circumstances change, and the parent who maintains a consistent legal partnership throughout the child-rearing years is best positioned to address disputes before they escalate. Child-custody-lawyer and child-support counsel can advise on the full range of legal and practical steps required to establish and maintain a stable custody and child support arrangement after the divorce, assess whether the current arrangement requires modification as the child's needs and the parents' financial circumstances change, and develop the long-term co-parenting legal strategy that most effectively protects the child's interests.