Few areas of a person’s life hold more emotional weight than the relationship they have with their children. And in a divorce, those relationships undergo immense stresses and strains. So when a client facing child custody issues comes to you their concerns will move beyond the black and white of finances and be colored by the emotional elements at play. Having knowledge of the parent-child dynamics during a divorce, as well as the variety of custody and child support options, will not only better prepare you to relate to your client but will help build a foundation for your work on their behalf.

It is very common that children will often feel guilty for not being able to keep their parents together. Children are entirely egocentric in this way and they often feel that they should have done something different, that if they had “been better” their parents would still love each other. Others may feel incredible anger at the absent parent for “abandoning” the family. These responses can create an incredible emotional burden on a caring parent and, unfortunately, are sometimes amplified by a vindictive spouse who encourages this thinking to “get back at” their soon-to-be-ex.

And when this emotionally-fueled strategy is added to the financial realities, such as how child custody impacts child support, the result can be a metaphorical ‘land grab,’ with little concern or appreciation of the impact on the child. This is why it’s important to be familiar with the variety of child support and custody options available to your client, not just for their financial well-being, but for the well-being of their child as well.

Two Types of Custody

There are two types of custody that the courts are concerned with; the Legal Custody and the Physical Custody of a child. Legal custody is the right to information about the child regarding their school and medical records which provides the decision- making power for the child’s health and education. In most cases this is shared between the parents as the legal rights are seldom removed without a reason. Sometimes Judges will vest one parent with sole legal custody if it is shown that the other parent is absent or being unduly confrontational about decision making but, in the vast majority of cases, Legal Custody is shared equally between the parents.

Physical Custody is the active role of being a parent. Where a child will sleep, be housed, and go to school is all decided by Physical Custody. Usually Physical Custody is also shared between the parents and again it is not removed unless there is a showing of absentee parenting, or one party has a history of domestic abuse in the family unit.

Frequently Physical Custody is divided with one parent having the bulk of time with the child – this is called Primary Physical Custody. The Primary Parent will usually have 70-100% of the custody and the Secondary Parent will have the balance. This is important for several reasons. The Primary Parent can move and take the child with them, will generally be entitled to child support from the Secondary Parent and will usually get the tax deduction of having a child in the house.

Child Support

So with both financial and emotional issues at play it’s not hard to see why Child Support becomes a contentious topic for many families. In most cases, Support is determined by a complex formula that incorporates the time share of the parents, the tax status, additional children, hardship deductions, mandatory payroll deductions etc. The rule of thumb is that for one child, and a parent with a 20% time share, (essentially every other weekend and a mid-week dinner) the Payor Parent will owe 25% of their gross wages. For two children it goes up to approximately 35% and increases as more children are added.

The fact that more time for the Primary Parent equals more child support, and raising a child is expensive, results in many custodial parents fighting for as much time as possible with their children. The mistake in this thinking is that the added benefits of more time, until the custody crosses the 90% mark and then there is a marked increase in child support, does not translate into significant increases in child support. These 90% and over cases are rare however as most secondary parents truly love their children and want to spend as much time as possible with them.

The flip side to this equation is that  in cases where there is a 50/50 split of the children’s custodial time, the child support awarded is not significantly lower than in the case where there is an 80% split of time share. At lower income levels, it can be a difference of only $90 a month. But children can eat more than $90 a month in the added time, so the parent who thinks they are gaining financially by depriving the other parent of custodial time, may not be making a wise decision.

In higher income cases, frequently the court needs to deviate from the federally mandated guideline awards, as the child support would become an absurdity. For example, in the Kirk Kerkorian case the mother wanted a combined alimony and child support award of $320,000 a month for a marriage that lasted 28 days. Kerkorian eventually settled agreeing to pay $100,000 a month in child support for a child that was not his biologically, but was legally.

It’s important to remember when counseling your client that the margins between child custody and child support, more custody equals more support, are slim. And when you add in the costs of raising a child, more custody could actually mean less support. But the real trick you will face, and one that I face daily as a Family Law attorney, is broaching the brass tacks of money in an emotionally charged environment. It’s hard to put a price tag on the love a parent feels for their child. But by acknowledging this dynamic, and having knowledge of the legal options available, you will be better able to serve both your clients financial and emotional needs.

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