During a divorce, many issues are intertwined, and the resolution of one is issue is in many cases, dependent upon the other. This is perhaps nowhere more true than with respect to the issues of child custody and child support. It is only understandable that regardless of the custody arrangement that the parties ultimately choose, parents want to ensure that they can adequately support their children as part of that arrangement. While the law requires that parents continue to support their children following a divorce, the custody arrangement that the parties choose (or that is ordered by the court) may have a significant effect on the amount of support that is to be provided.
Although divorce may end a marriage, parenthood is forever. And regardless of how they may feel toward their ex-spouse, most parents truly want to support their children – out of love, and not simply because it is legally required. As a result, child support is often one of the less contentious issues that couples negotiate during a divorce.
As most parents know, child support is a monthly payment, typically made by the noncustodial parent to the custodial parent to provide for the reasonable needs of the couple’s children. Under North Carolina law, this includes the biological children of the marriage, any children that the couple adopted together, and any children born to a relationship between the parties.
A child support obligation is usually long-lasting, until the children reach the age of eighteen or are otherwise emancipated. As a result, it is more than worthwhile for most couples to truly spend the time thinking through what child support and custody arrangements might work best for your family – and the two are distinctly intertwined. In North Carolina, there are two primary ways that child support can be determined – either in an agreement, which the parents negotiate and enter into together, or by a court, based upon the state statutory guidelines. In this chapter, we’ll discuss both of those options – what they entail, the advantages and disadvantages of each, and how your custody arrangement might affect those determinations.
Addressing Support by Agreement
As with almost all issues the must be resolved during the divorce process, child support can be determined by the parties by agreement. If you and your spouse are capable of communicating effectively and with an open mind, and are committed to working together toward the best resolution of your issues for your family, addressing support obligations in a separation agreement offers many advantages.
Choosing to set the support obligation yourselves provides more leeway to determine what works best for your family and your lifestyle. You can ensure that the agreement fits your family’s unique needs – even if those needs are different than those which are normally provided for under the legal guidelines. For example, in a separation agreement, the parties may decide that they want to extend support payments beyond the age of eighteen, address the obligation to pay for private school or college expenses, make payments on a particular timeline that works best for the parties, or implement any other number of specific conditions that work well for their particular circumstances.
A second advantage of choosing to set the support obligation in an agreement is that not only do you have the flexibility to determine the specifics of support in the first place – you also have the freedom and flexibility to make changes to the agreement as your life situation changes. Of course, both parties will need to be in agreement about those changes, but as long as that is the case, the agreement can be rewritten or modified at any time to ensure that the support provided continues to work best for the family’s life circumstances.
Yet another advantage of entering into an agreement is that generally, doing so means that couples will spare themselves a great deal of the expense and stress that they would likely have incurred by choosing to battle an issue out in court. For the most part during divorce, with respect to all issues, choosing to work together toward an agreement that works well for everyone involved is less contentious, and less costly. The effort is well worth it.
Clearly, then, there are many advantages to choosing to address child support by agreement. The question then becomes, how to draft an agreement that best fits your family’s circumstances? If two parents do decide to enter into an agreement regarding child support, it can be helpful to consider the following advice when negotiating child support payments:
Remember, that the ultimate goal of your negotiations is to ensure that your children have the same financial support that they would have received if you had remained married. Spend the necessary time talking with your attorney in detail about your children’s lives – their needs, their regular expenses, their health issues, and the lifestyle they are accustomed to. Be honest with your attorney about your income, your expenses, and your goals for your children’s future. Most importantly, go into the negotiations with an open mind. Be willing to communicate openly and compromise if necessary, but don’t hesitate to stand up calmly and confidently for the things that are truly important to you.
Court-Ordered Child Support
As with all issues in a divorce, if the couple is unable to come to an agreement on their own regarding child support, a court will make the determination for them. Sometimes, depending upon the dynamics involved in a relationship and the animosity that may be present between the parties, having a court decide the key issues is simply the best choice. While child support can seem like a complex issue to those unfamiliar with the legal system, there are fortunately detailed guidelines in place to help courts make the determination as to the amount of support that is appropriate in any given case.
The North Carolina Child Support Guidelines provide guidance to the court regarding support calculations, and can help parents roughly plan for and estimate what amounts they might be expected to pay. These guidelines are based on a shared income formula. The idea behind this method of calculating support is that child support should be an obligation that the parents share jointly – that is, that the children essentially receive the same percentage of their parents’ income that they would have received if the parents had remained married. Also factored into the amount of support that is ultimately awarded is the custody arrangement that the parties have, as we will discuss below.
As a court makes a determination with respect to support, a number of factors will be considered. Some of those factors include how much time the child spends in each parent’s household, which parent has primary custody, the income of each parent, and each parent’s ability to pay support. Other factors that the court might consider include:
Though in the vast majority of cases, courts use the North Carolina Child Support Guidelines in determining support obligations, there are some situations in which courts will deviate from those guidelines. Some of these circumstances include:
In those special situations, courts will typically make support determinations on the basis of the child’s actual needs and the expenses associated with those needs, as opposed to utilizing the formula set forth in the guidelines.
In the majority of cases, however, families who have child support obligations determined by the court will find that the court determines those obligations using the state support guidelines. These guidelines apply statewide, and are revised at least every four years to adequately reflect cost-of-living increases. Typically, there are three worksheets used for calculating support under the guidelines:
As indicated by the differing worksheets, child support, when awarded by a court, is directly affected by the custody arrangement that the parties have. If the parents have an arrangement where one parent is the primary physical custodian of the children and the other parent has less than 123 nights with the children, the parent who has primary custody will receive the maximum amount of support available under the guidelines. On the other hand, if the parents have a split custody arrangement (a somewhat rare arrangement where one parent has primary custody of on child and the other parent has primary custody of the other child), child support may be drastically reduced, or may not be awarded at all, as each parent would be responsible for the day-to-day expenses of the child that lived in their home. In a third scenario, if the parties essentially have shared custody – meaning that each parent spends at least 123 nights with the children each year, the amount of child support awarded might decrease or increase depending upon the amount of time that each parent spends with the child. It is also important to keep in mind that even if you do have equal amounts of time with your children, if one parent makes significantly more than the other, support may still be awarded, because child support is intended to be paid proportionately to income.
Clearly, the custody arrangement between the parties will have a significant effect on the amount of support awarded. Moreover, while the guidelines are generally adopted and used to calculate support, a court may choose to look beyond the guidelines and set a different amount if the particular and unique needs of the children require it. A court always has the obligation to do what is in the best interests of the children, and at times, that means looking outside of the guidelines at the whole picture of the child’s life to make a determination.
Regardless of whether the court ultimately determines the support obligation or the parties choose to decide it by agreement, after it has been determined, North Carolina law provides that one spouse can pay the support amount directly to the other at the required times, if that arrangement works well for both parties. In other circumstances, however, an intermediary might be helpful, and in those cases, child support can be paid through the North Carolina Child Support Centralized Collections (NCCSCC), which will then send the support collected to the receiving parent, either through direct deposit or via a debit card. Some couples choose this option in order to have a document record of all support payments which are made from one parent to the other, if a dispute should ever arise.
Beyond the Dollar Figure – A Look at the Emotions Behind Child Support and Child Custody
Regardless of whether the support amount is awarded by the court or decided upon by agreement, it is important not to underestimate the level of emotion that might be involved in these decisions, and the reactions that those emotions might cause. So much of divorce is emotional, and perhaps nowhere is this more true than with respect to issues involving children.
Divorce is a stressful time, and even when the divorce is over and the dust settles, emotions can still run high. It is important for all parties to remember that regardless of the ending of a marriage, the obligation to parent together for the good of your children remains. It is important, if you are the parent who is responsible for making child support payments, that you do so on time, and in full. Never withhold payment to “punish” the other parent – after all, the ones who are really being punished are your children.
On the other side of the coin, if you are the parent who is the primary custodian and the other parent falls behind on their child support payments, do not withhold visitation privileges until the support is paid, for the purpose of “getting back” at the other parent. While this may be tempting, and while it may feel good in the moment, you are harming your children in the long run, and potentially placing yourself in a position to incur legal consequences as well. If you are not regularly receiving the support that is due, let child support enforcement authorities address the issue of non-payment, and speak to your attorney about possible remedies.
Ultimately, when it comes to child support, the hope is that parents will always continue to do what is right and best for their children, regardless of their emotions or negative feelings toward the other parent. Both parents need to be realistic and practical about the custody arrangement they choose, and the support obligation they decide upon. Doing so is ultimately better for everyone in the end.
Without question, the “nuts and bolts” of the child support process and its interplay with the custody arrangement that the parties have might seem confusing at first glance, and this is certainly understandable, particularly for those who are not legal professionals and who are unfamiliar with the process. The good news, though, is that an attorney who is well-versed in the law and who frequently handles divorce cases will be able to guide you through the process, and advise you as to how the law might apply to your particular circumstances. The value of such legal advice cannot be overstated, particularly when it comes to something as important as matters involving your children. Together, you can reach the resolution that is best for your family.
 As a basic example, if, when the parents were married, they spent $1,000 per month on their children, and one spouse made 70% of the combined income, that spouse would be responsible for 70% of the support that the child would receive, or $700. Of course, there will be extraordinary expenses that may also factor into the calculation, but the idea, generally, is that parents continue to support their children in the same manner and in the same proportion as they would have prior to the divorce.
If you would like to arrange a child custody and child support consultation with an experienced child custody lawyer in Huntersville, NC, contact Adkins Law.
Often, in order to come to the best understanding of any topic, it is helpful to learn a bit about the history of that subject – how it came to be what it is, and why. Understanding the history of something in which we find ourselves involved can give us important perspective and understanding that we might not otherwise have. It is no different with legal matters, child custody included. Understanding the history of any topic gives us a better grasp of where we are today and why. Knowing how courts used to decide cases gives us an important perspective on how jurisprudence has shifted over the years– what the important factors used to be, and what they are now. As with so many legal and historical matters, the history of child custody is an interesting and complex one. As societal perspectives have shifted and culture has evolved, so also has the state of child custody in our country.
Children as Property of the Father
When Colonial Americans first settled in the United States, they followed the English common law at the time with respect to child custody. That common law typically granted custody of the children to the father following a divorce. This preference arose from the traditionally historic belief that women were essentially property, and had very few individual rights. Most “rights” that women had were in name only, and were derived from their fathers and husbands. Fathers had the legal right to physical custody of their children, which in those times might have included not only their biological children, but also young servant children, and orphaned children belonging to relatives as well. Often, the survival of a family depended upon the labor of all of these children, as well as the right to any earnings from the labor of their children, which might be very significant to the family’s finances. As a result, in the somewhat rare event of a divorce, the courts almost always awarded custody to the fathers.
With the rise of the Industrial Revolution, however, more and more families began to abandon the traditional farming lifestyle of the settlers for industrial jobs in factories and cities. This meant that fathers left the home during the day, while the mothers remained to take care of the children and run the day-to-day affairs of the household. It was at this point that fathers became more traditionally viewed as wage-earners, and mothers as caregivers.
It was also at this point in our history that “childhood” as we know it began to exist. Children who, in previous generations, would have been sent out to labor on the farm or at a trade began to experience days that were more largely focused on school and play, under the watchful eyes of their mothers at home, while their fathers went to work. These shifting perspectives began to influence custody decisions as well, both in England, and in the United States, which though independent by this time, continued often to look to England for guidance and vision on some legal matters.
The “Tender Years” Doctrine
In 1839, England passed the Custody of Infants Act. This law gave judges the authority to use their own discretion in custody cases, and permitted mothers to petition the courts for custody their children up to the age of seven. As societal roles continued to change and perspectives continued to evolve, Parliament extended the age to sixteen, pursuant to what it referred to as the “Tender Years Doctrine”. That doctrine was essentially a way of formalizing the belief that in children’s early years, they are best cared for by their mother. This principle was adopted by the majority of states in the United States as well, and was thereafter the prevailing law for the majority of the next century.
North Carolina, like the majority of the states in the country traditionally subscribed to the tender years doctrine. Essentially summarizing the doctrine in its holding in Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973) the court stated:
It is universally recognized that the mother is the natural custodian of her young …. If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute. A mother's care and influence is regarded as particularly important for children of tender age and girls of even more mature years.
This, indeed, was the prevailing belief and doctrine followed in the United States for nearly a century, until continually evolving cultural norms again precipitated a change. In the 1960s divorce rates began to surge, compared to those of previous decades. A number of factors played a role in this change, including the return of more women to the workforce, an increased interest on the behalf of child development experts in the important role that a father plays in a child’s emotional well-being and development, and the emergence of more egalitarian gender views, among others.
As all of these changes were happening, new conversations and debates about the role of each parent emerged. No longer was the mother seen as the only parent capable or willing to stay-at-home or provide primary care to the children. Indeed, father’s rights groups began to form across the country, as part of a larger ongoing movement for gender equality.
The Current “Best Interests” Standard
In 1977, the North Carolina General Assembly made the decision to do away with any presumption in favor of either the mother or the father, and officially adopted the best interest of the child standard. In pertinent part, that statute, N.C.G Gen.Stat. §50-13.2 states:
An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization, or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
Essentially then, in the context of child custody matters, the focus on the child’s “best interests” means that courts are required to make decisions regarding custody and visitation with the overarching goal of ensuring the child’s security, happiness, health, and appropriate development into adulthood.
Under the best interest standard, courts have a significant amount of discretion in determining custody matters. On the one hand, it means that either party ideally has a fair and equal chance of obtaining custody, and that there is no preference for either party. And indeed, it is often ultimately in the child’s best interest to maintain a loving and close relationship with both parents. On the other hand, the equal opportunity for each parent to be awarded custody has also opened the door for what can often be bitter custody battles, as each parent tries to prove his or her case. Ultimately, the court ends up being faced with the often difficult decision of choosing a parent, and a household which will, in his or her judgment, best develop the child’s physical, mental, emotional, moral, and spiritual faculties. See In re Peal, 305 N.C. 650, 645, 290 S.E.2d 664, 667 (1982).
This understandably leads to the next logical question – what factors do courts consider when trying to determine what is in the best interest of a child? The answer is not necessarily definitive – in fact courts can consider a wide variety of factors – “all relevant factors” in fact. See In re Shue, 311 N.C. 586, 319 S.E.2d 567(1984). While that’s a very broad and open-ended realm of possibility, some of the factors frequently considered include:
Certainly, this is not always an easy decision for the court to make, especially when both parents are very involved in their children’s lives and devoted to their well-being. Ultimately, when the court enters its findings of fact, it should seek to address all characteristics of the parties with respect to their physical, mental and financial fitness to care for the child. See Phelps v. Phelps, 337 NC 344, 446 S.E.2d 17 (1994). Generally, in North Carolina, it is public policy for the courts to promote and encourage parent time with the children by both parents, if possible. See N.C. Session Law 2015-278 (Senate Bill 519).
As the court seeks to determine what is in the best interests of the children, it might ultimately decide on any one of a number of types of custody arrangements. It should be noted and emphasized that while courts may decide upon and order certain arrangements, instead of requesting that a court do so, the parties are free to negotiate and agree upon an arrangement that suits them best, instead. That arrangement can ultimately be anything that the couple decides works best with their lifestyle and for the needs of their children, and will of course ultimately be more personalized and provide greater flexibility than a court-ordered arrangement might be. Regardless of what route parties ultimately choose, however, understanding the basics of custody arrangements can be helpful as you move forward toward the next chapter of your life.
If you need to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a consultation.
It's true that divorce represents an ending of one relationship – but it also represents the beginning of another. Though you and your ex-spouse may no longer be husband and wife, you’re always going to be parents. You may be parenting from two homes instead of one, and it may look different than it looked before, but always, you’ll be two of the most important people in your children’s lives. As your children continue to grow, you’ll still be required to make decisions together for their well-being, to attend their important activities together, and to be present for the moments in their lives, big and small.
Regardless of the separate paths that your lives may take in other ways, you will always have this bond, and hopefully, the shared goal of continuing to be the best parents to your children that you can be. For the sake of your children, it is important to acknowledge the reality of this new relationship, and to do what you need to do to make it the best and most cooperative relationship that it can be. Though you may have feelings of animosity toward your spouse because of the end of your marriage, for the sake of your children, it will be important to work on dealing with those feelings and moving forward in a positive, and healthy way. That’s what this chapter is all about.
A Quick Look at the Co-Parenting Spectrum
Successful co-parenting - what does it look like, and how do you go about it? These are important and worthwhile questions to ask, and the answers will look slightly different for every family. For some parents, co-parenting seems to be relatively easy following a divorce, particularly if that divorce was low-conflict, cooperative, and amicable. These parents find it fairly easy to make the transition from one household to two. They are able to cooperate effectively, make decisions together about what’s best for their children, and generally manage the transition from one household to two with fairly minimal conflict.
In other situations, however, and particularly in high-conflict relationships, co-parenting can be very difficult. These parents may have struggled with a relationship that had marital misconduct of some kind - perhaps abuse, or addiction, or mental illness on the part of one spouse. In these cases, co-parenting can be very difficult and cooperating is not easy. There are these two ends of the spectrum and everything in between when it comes to co-parenting relationships. Wherever you find yourself on this spectrum, the good news is that with the right tools and a commitment to making an effort, you and your ex-spouse can find a co-parenting dynamic that works well for your family.
Failing to do so means that instead of co-parenting what you are effectively doing is “parallel parenting”. In a nutshell, this term refers to each parent raising the children in his or her own way without much communication with or cooperation from the other parent. Ultimately, while this may seem easier for the parents, it is not nearly as beneficial for the children. Making the effort to learn how to co-parent together is well worth it and in the best interest of the children that you love. Keeping that in mind, let’s take a look at what successful co-parenting looks like.
Elements of a Successful Co-Parenting Relationship
More than anything else, it is important to remember that the ultimate goal of co-parenting is putting your child’s needs first. Certainly, this is not always going to be easy. Divorce is difficult, and in almost every case, even those divorces which are amicable and go smoothly, there is some amount of emotional pain involved. It goes without saying then that redefining your relationship with your ex in this way for the sake of your children will mean putting aside your own emotional baggage and committing to focusing first and foremost on what’s important for your children.
With that in mind, here are some helpful tips for establishing and maintaining a successful co-parenting relationship:
Co-Parenting in High Conflict Situations
Certainly, any divorce is stressful for everyone involved in one way or another. Some divorces, however, are significantly more stressful than others. Those stressful divorces often, although not always, were precipitated by relationships that were difficult, stressful, and high-conflict long before the divorce itself occurred. There could be any number of reasons that this is the case.
It’s possible that domestic abuse existed in the relationship. In other cases, one spouse may have suffered from narcissistic personality disorder or some other mental issue that caused he or she to be particularly manipulative or controlling of the other spouse. It’s possible that one spouse committed adultery, or hid an addiction, or otherwise engaged in behaviors that were very damaging to the relationship, and ultimately, to the marriage. In still other cases, the conflict is not from any one form of “misconduct” by either spouse, it could simply be that emotions became so volatile and tense between the parties that even after the dust settled, it was difficult to truly put those emotions aside and cool down.
Whatever the reason, some co-parenting relationships are more high-conflict in nature. While this is unfortunate, the good news is that even in high-conflict situations, there are steps you can take to help ensure that you can still co-parent as successfully as possible. If you find yourself in a high-conflict co-parenting situation, if possible, try to:
The good news, though, is that in many cases, counseling can be very effective, for children, and for parents. Sometimes, those who go to counseling are pleasantly surprised to discover that a relationship which may initially seem very tense and unmanageable actually can become less tense and more amicable and cooperative over time. Moreover, even in situations where one spouse refuses to participate in counseling for whatever reason, it can still be beneficial for you, and for your children. Sometimes, no matter how much you might want to, you can’t change other people. You can change yourself, though, and you can take steps to ensure that you are pursuing the best for your emotional health and well-being.
If you have been involved in a high-conflict relationship for any period of time, counseling can be very beneficial, not only for your own healing, but also for continued growth. Sometimes, making a concerted effort to really explore the roots of a conflict and how it has impacted you can be extremely beneficial as you try to heal and move forward. A trained counselor can also give you helpful tools for establishing healthy boundaries, standing up for yourself when necessary, and maintaining your emotional well-being and strength so that you can be the best parent for your children, regardless of what your ex-spouse chooses to do.
Counseling can also be very beneficial and helpful for children whose parents are involved in a high-conflict relationship. Sometimes, children who find themselves in these situations have difficulty expressing themselves, and finding the right words and outlets for their feelings. A professionally trained child therapist can be very helpful to children in many ways, and making the effort to find one who is a good fit for your child’s personality is highly recommended.
While co-parenting in a high conflict situation will not always be easy, the good news is that it can be manageable. With the right tools and the necessary effort, you can find a situation that is manageable and workable for your family.
Leading by Example
Beyond simply being good for your children from an emotional standpoint, good co-parenting can also set a good example for your children. It can show them in a very practical and real-life way that even though people have difficulties and differences, they can still work together to solve problems and achieve goals and do what’s best for everyone involved. Particularly as your children get older, they will see this example and it will be very valuable to them in their own lives. Beyond giving them the gift of two parents who are invested and involved in pursuing their best interests, you are also giving them the gift of leading by example that they can carry into their own relationships later in life.
No matter what, making the transition from one home to two will not be without its difficulties, and it will certainly require some adjustment and adaptation from everyone. Although there may be some challenging moments and some growing pains, with a commitment and continual effort from both parents who want to co-parent successfully and work constantly toward that goal, you can do it. It is possible and likely that you can build a new relationship which, although different from the old one, will still be beneficial and special to your children. Making the effort is well worth it.
If you need to speak with an experienced child custody attorney in Huntersville, North Carolina, contact Adkins Law to arrange a consultation.