The Post-Divorce-Parenting Glossary

• What is family law?
• How has family law and child custody evolved?
• How does family law apply to divorcing parents with children?
• What should divorcing or separating parents expect with regard to family law and child custody as their divorce progresses?
• Is family law biased toward mothers in child-custody cases?
• What are factors that influence child custody decisions?
• How does family law address alimony or spousal support?
• How does family law address child support?
• How does family law address unpaid child support?

What is family law?

Broadly, family law encompasses issues, such as marriage, annulment, separation, divorce, child custody, visitation, child support, alimony, domestic violence, and other family-related legal matters. With regard to children, family law also addresses issues pertaining to adoption, guardianships, and child protection from abuse and/or neglect. 

How has family law and child custody evolved?

Family law has existed for as long as law has existed, but in the past few centuries it has evolved tremendously. In the 1800s and earlier, agriculture and family labor was the primary way of life for most families. It was common for children to work at very early ages, and thus they were an important component of the family's livelihood.

The father was typically the head of the household and women had few rights outside of the home. Thus, if a marriage broke down, the father would typically get custody of the children.  This changed with evolution of two key events – the focus on women's rights and the beginning of the industrial revolution. These changes in society would lead child custody cases to follow a new standard – the tender years doctrine.

The tender years doctrine basically implied that children (especially younger children) were better off living with their mother than their father. The tender years doctrine dominated child custody cases for most of the twentieth century, but it was essentially nullified in the 1970’s and the best interest of the child standard has replaced it.

Today, if a child-custody case is litigated or arbitrated, family law judges or arbitrators trained in family law will decide on what is in the best interest of child for the given child custody case.  What is considered in the best interest of a child is ultimately left up to the the interpretation of a given family law judge or arbitrator.

How does family law apply to divorcing parents with children?

Every parent who divorces will be deeply involved in family law, whether they want to or not.  Child custody is one of the largest components of family law, and how to decide who gets child custody is a challenging and important aspect that a family court must contend with.  Parents should take the time to read and learn as much as they can about child-custody law in the early stages of the divorce or separation.

A family law judge or a divorce arbitrator will be expected to make child custody decisions that employ the best interest of the child doctrine. This means that the child's interests will be the first consideration in how the child custody judgements will go.  Although the best interest doctrine attempts to provide a universal standard across the country, laws pertaining to divorce and child custody vary considerably from one state to the next. Therefore, the particular jurisdiction that a divorce and child custody case is heard can be a significant factor in how the best interest doctrine will be interpreted and ultimately applied.

What should divorcing or separating parents expect with regard to family law and child custody as their divorce progresses?

While every state is different, divorcing parents can expect their family child-custody law case to involve a judge or divorce arbitrator having to make difficult decisions about child custody.  Because child custody can be divided into two components (physical custody and legal custody), a judge or family law arbitrator must familiar both components of child custody.  Furthermore, because both physical custody of a child and legal custody of a child can be shared (shared custody or joint custody) between the parents, the judge or arbitrator must learn a great deal about both parents, the children, and the environment they each live in.

Lawyers who specialize in family law are trained and educated on helping individuals through some of the most stressful events in life that people can experience. Family law attorneys should not only be skilled in litigation, but also negotiation.  Family law attorneys will likely guide each parent through the process so the best outcome can be realized by their client.

In practice, the best interest of the child should prevail, but often a child custody case leads to one parent ends up feeling like they have "won" the case, while the other feels they have "lost" the case.  For this reason, parents who intend to pursue a child-centered divorce should consider mediation before they engage in litigation or arbitration.  Many parents are able to negotiate the terms of divorce decree outside of court either through mediation or on their own. This typically reduces conflict, stress, time, and legal expenses that could go to supporting the children after the divorce.

Is family law biased toward mothers in child-custody cases?

Many factors will weigh in on the judge's or arbitrator's decisions during a child-custody case.  Many father's rights advocates point to statisics of women versus men getting child custody to prove that argument that bias exists.  Statistics indicate that only 15% to 18% percent of child custody cases result in fathers being awarded sole custody.  Also, they are statistically awarded less child support than mothers with sole physical custody. While it is clear that significant discrepancy exists, several considerations must be taken into account before assuming bias is the cause.

Most divorcing couples negotiate custody terms through mediation or on their own.  The court has no impact on mediated child-custody cases.  Of litigated child-custod cases, child custody goes to the mother about four times as often as it does to the father.¹  The reasons for this could be an indication of bias, but they could also be an indication of other causes.  Most divorces are initiated by women.  Because of this, most women have a head-start in preparing for the upcoming child-custody case.  This head-start may give mothers and unfair advantage in winning a child custody case.  While this is unfair, it does not prove a bias against fathers.

Another factor that tends to lead to mothers getting custody more often than fathers is their work schedules. Mothers are much more likely to be the primary caregiver during the marriage.  When the marriage dissolves, courts often assume that this should still be the case in the post-divorce parenting life.  Again, while arguably not fair, it doesn't mean the court is biased.

Certainly changes to family law with regard to child custody are warranted, but bias against fathers tends to be a short-sighted and incomplete argument.

What are factors that influence child custody decisions?

After hearing a case, the family court will issue a divorce decree.  A divorce decree is the formal document that terminates the marriage and addresses child custody, child support, visitation, alimony, and property division. The following are factors that a family court judge often weights when making decisions with regard to which parent will have what type of custody.
 

• Where the parents live?
• What type of work schedule the parents have?
• What income the parents earn?
• Whether their was any history of abuse or neglect?
• What the children's wishes are?
• Which parent's personality and temperament is best suited for being custodial parent?
• What is the quality of the relationship each parent has with each child involved?
• What abilities has each parent demonstrated in raising their children?
• Is either parent disabled or have an illness that would significantly impair their ability to rear a child?
• Are there any behaviors or unhealthy habits either parent has that may be harmful to a child?
• Which parent is able to provide the most stable home environment?
• Does the child have a closer connections with one parent versus the other?
• Is one parent better suited to address the specific needs of the children?
• With whom has the child been residing?
• Has each parent been consistently employed?
• What is each parent's financial situation?
• What is each parent's apparent reason for wanting custody?
• Has either parent demonstrated behavior that would indicate they were unfit to have custody?
• Will one parent likely prevent the child(ren) from having a relationship with the other parent or extended family?

How does family law address alimony or spousal support?

Alimony is financial support ordered by a family court in the context of separation or divorce whereby one spouse is ordered to make routine payments to the other spouse.  Family law in different states will have different interpretations about how alimony should be awarded, but generally the amount of the spousal support is determined by income of both spouses and the particular standard of living that the couple had during their marriage.  Typically, spousal support only applies to marriages that have existed more than 10 years and disappears if the recipient remarries.

How does family law address child support?

Child support is financial support ordered by the family court, usually in the context of separation or divorce cases, to be paid by one parent to the other with the intended benefit of supporting the needs of a child. The following are needs that child support is usually designated for helping pay: health care, expenses related to education, food, clothing, shelter.

In addition to helping pay for the needs listed above, child support regulations attempt to balance out significant financial differences between the households of two divorced parents. This is to prevent the scenario where one parent with more income has a luxurious household where the other is living with much lower standard of living. However, many feel child support regulations fail in their attempts to provide financial balance between households.

The guidelines around child support vary from state to state. Many states use a child support calculator that uses a formula to determine the amount of child support based off each parent's income. Other states determine child support solely based on the income of the parent paying child support. However, when both parents share equal time with their child(ren), the parent that draws the larger income usually pays child support. Certain states having a ceiling and cap child support at specific income level. Judges have "imputed income" at times when they find that a parent is choosing not to work or avoiding work at an income level they are capable of earning so as to lesson their child support or draw more child support. Imputing income refers to a judge determining child support based on what they consider a parent capable of earning versus their actual earnings.  There are three models within family law that are used to calculate child support.  These are as follows:
 

The Percentage Model

The percentage model considers only the noncustodial parent's income - not the custodial parent's.
 

The Income Shares Model

The income shares model of child support takes the income of both parents into consideration.

The Melson Model

The Melson model is a variation of the income shares model that looks at the minimum standard of living income before determining child support.  It considers the income and financial situation of the entire family unit.

How does family law address unpaid child support?

Unfortunately, a significant number of people who are obligated to pay child support do not or only pay partial payment. When a parent has unpaid child support that has been ordered by the court they can be held in contempt of the court order. If not resolved or if the contempt order is not "purged" this can result in significant consequences for the parent in arrears.

Due to increased laws enacted by congress, over the past several decades, more stringent enforcement mechanisms and consequences exist. Such consequences include fines, loss of drivers' licenses and professional licenses, prison time. The parent that is supposed to be receiving child support may have the other parent's wages and taxes garnished as well as bank and investment accounts seized.

Sources:

1.  http://divorcepeers.com. "Divorce Peers." Divorce Peers. N.p., n.d. Web. 13 Nov. 2013.

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