When going through a separation from a spouse or dating partner that you have children with, the first thought is typically about what happens to the children now that the prior in-tact family unit is torn apart. Questions you might ask include: Who determines the custody schedule? What custody schedules are considered typical? Can one person withhold the children from the other parent? When can you start getting support? When should you start paying support and how much? The list goes on and on.
For potential family law clients going through custody and child support issues for the first time, it can feel like an overwhelming situation with more questions than answers. Mix in the emotions that naturally come along when thinking about your children and their welfare, and it’s a recipe for feeling helpless and lost. Knowing the basics about custody and child support is a step in the right direction.
- Physical Custody. Physical custody refers to where the child is located at a given time. This is often referred to as your custody schedule. A custody schedule provides for regular parenting time, typically meaning where the children are during the school year and non-holiday weeks and weekends. A custody schedule should also address where the children will be for holidays, summer vacations, and other special occasions. Details such as transportation and exchange points may also be addressed as part of the physical custody schedule and arrangements.
- Legal Custody. Legal Custody refers to the decision making abilities that each parent has. The big issues commonly seen are medical, educational, and religious decisions. The legal custody provisions of a custody order or agreement will detail who gets to make these decisions. Specifically, it needs to be clear whether the parents will be required to make joint decisions. Or if one parent is given decision-making authority over the children in all or specific areas, do they still need to consult with the other parent and keep them informed. More involved legal custody issues may involve each parent’s conduct towards each other and the children, rules for taking the children out of state overnight on trips, and obligations regarding keeping the other parent up-to-date on the children activities and events. This is not an inclusive list, but just a few examples of what is typically included as part of legal custody.
- Child Support. The law provides that each parent owes a duty of support to their minor children. However, once parents separate or no longer live together, it may be that one parent has to pay child support to the other parent. As in many states, South Carolina uses child support guidelines, essentially a calculator and formula, for assisting the parties and the Court in determining what child support is presumed to be appropriate for the children. Child support is not something that can be enforced automatically. Just because you split up, the parent who should be paying support may not necessarily do so voluntarily. And even when a parent is willing to pay support, there may be differences in what each parent thinks child support should be. Additional considerations include health insurance coverage and the sharing of uninsured, or out of pocket, medical costs.
So now that the basics are explained, what happens next?
When it comes to determining physical and legal custody and the amount of child support, there are two approaches. The parents can agree on the terms. For physical custody, this means that you will have to work with the other parent to figure out a schedule that makes sense for each of you and your children.
For legal custody, you will have to decide who has decision-making authority or if it will be joint between the parents. This does not necessarily mean you have to sit down at a table with your ex and lovingly discuss your children (although that would be ideal, it’s not always realistic in the family law context). But it does mean that both parties need to be willing to compromise and think about the common goal of not fighting it out in a courtroom over the kids. When both parents have the same goal in mind, it is possible to come up with a schedule for the children that benefits everyone involved. The second option available is to let a judge decide these issues for you. While sometimes this is the only option available, it can be a scary prospect to put a decision such as custody of your children in someone else’s hands. However, often times, when parents cannot agree amongst themselves, it is reassuring to know that there is someone to step in, and make a decision that is in the children’s best interest.
Keep in mind that each custody case is unique. What works for one family, may not work for yours. And while child support is, in most cases, determined by a calculator, there can be variables that affect the amount of support. An experienced family law attorney can help guide you through this process and explain each step to help ensure your children’s needs are at the forefront of your case.