Many people believe that if they have joint custody of their children after a divorce, they don’t have to pay child support. However, child support and custody are two entirely different things, and many state courts look at them separately.
Best Interest of the Child
Most family courts around the country will always do what they believe is in the best interest of the child when deciding on child custody, visitation, and support. This means the courts will base their decisions on what is best for your child’s emotional, physical, and mental health needs.
Joint Custody vs. Joint Conservatorship
In general, child support will still need to be paid in joint custody situations. An important thing to remember is some states don’t have joint custody; they have conservatorship. Many people interchange these words, even attorneys, but a family court judge will point out that it is a conservatorship in states where that term is used.
The idea behind many states’ Family Code laws is to help parents understand their rights, responsibilities, burdens, and benefits. As a parent, you are there to “conserve and protect” you children, and not possess a child like you would possess an object like a car.
Additionally, joint managing conservatorship doesn’t mean you will get to spend equal time with your child. It means that one parent will be named the primary conservator and has the right to determine where the child is going to live, and the other parent will have visitation rights.
If you have conservatorship of your child, you have the right to manage the day-to-day decisions for your child. These decisions could include:
- What school your child attends
- What religion your child participates in
- What sports your child plays
- Your child’s doctor’s appointments
- What your child wears, etc.
- Any other parenting decisions you need to make regarding your child
Many states’ laws default to a joint custody plan in the majority of the cases. These laws assume that your child needs both you and your ex-spouse, and tries to keep things that way. The only way you may not receive joint custody is if your ex-spouse is awarded sole managing conservatorship in a family court.
Normally, you or your ex-spouse will get sole custody in extremely serious situations. As a parent, you may be awarded sole custody if your ex-spouse is:
- Addicted to drugs and/or alcohol
- In jail
- In a psychiatric hospital
- Not in your child’s life
- Too dangerous to be in your child’s life
Family Code Laws
In many Family Code laws, it’s stated that a joint custody arrangement doesn’t impair or limit the court to order one parent to pay child support to another parent.
The family courts throughout the United States will always care more about what is in the best interest of your child than what the parents may think is fair. If your case goes to court, it will be up to the Family Court judge to decide who, if either of you, will pay child support and the amount of child support you will pay.
Calculating Child Support
While other states may consider the income of both you and your ex-spouse and the amount of time each of you spends with your child when deciding how much child support you may pay, some states’ courts don’t care how much money each of you makes or how much time you spend with your child.
Many family courts, when calculating child support, use 20 percent of the non-custodial parent’s resources as a basis for child support payments. If there is more than one child, the court will add an additional 5 percent. However, this amount may be reduced if you are paying child support for children from a previous marriage.
No Child Support Agreements in Mediation
You and your ex-spouse may want to agree to things that are outside of your state’s Family Code guidelines. If you and your ex-spouse choose to do that, you should do it in the mediation process. This is because if your case is settled in mediation, family courts are more likely to accept the mediation agreement. For example, you could decide that neither of you will pay child support to the other.
However, if your case is not settled in mediation, and you and your ex-spouse have agreed to something that isn’t within your state’s Family Code guidelines, there is a very good chance the family court in your state will not approve the agreement because:
- Child support is automatically presumed to be in the best interest of the child.
- You and your family law attorney would have to be able to prove to the court that not paying child support is in the best interest of the child.
In a nutshell, if your case settles in mediation, then your mediation agreement will be finalized in a family court 95% of the time.
If you have primary physical custody of your child, you will normally receive child support from the other parent. In shared custody, this may get a little more complicated.
Shared custody means you and your ex-spouse will spend an equal amount of time with your child.
The family court may decide that neither of you pays child support to the other, but you both must support the child when they are in your care. This means that each of you would provide food, clothing, and shelter when your child is with you.
The family courts may still order child support in shared custody situations. However, if you and your ex-spouse’s incomes are far apart, it would hurt your child to rely on the lower income when the child is staying with that parent.
In some states, the general court practice (which isn’t mandated by statute) is to split the difference between what a parent would pay if your case was a joint custody matter.
For example, if Bob and Sarah agree to joint custody, the family court would do the math and calculate that if Sarah had sole custody, Bob would have to pay her $1,200 a month. If Bob had sole custody of the child, Sarah would pay him $300 per month. The verdict would be that Sarah receives $900 per month.
In some extremely rare circumstances, the judge may order you to pay all the child’s expenses, such as if your ex-spouse is unable to work.
Child support and custody laws throughout the United States can be complicated, especially if you and your ex-spouse cannot agree to a plan during mediation. It’s important to work with your family attorney to resolve these matters, and to keep in mind what is in the best interest of your child.