Q & A: Child Support
How much child support should I receive if I’m separated from my spouse?
There is no set amount that is “enough child support” in any given case. Child support varies according to the needs of the child or children, the incomes of the parents, the parents’ reasonable needs and the accustomed standard of living of the child(ren), among other things, and this is set out as the standards for determining child support under General Statutes 50-13.4(c). Who decides how much is enough? What if the other parent and I cannot agree on the amount of child support?
If the two of you are able to reach agreement on a sum, that amount should be set out in a separation agreement. If the separation agreement sets out a specific sum, that figure that will be binding if it is enough for the child. If the parties cannot agree, you may petition the court to set the amount of child support that will be required. The court always retains the power to modify child support regardless of what the parties decide. What court decides child support?
In North Carolina, the district court hears child support cases. A child support case is usually heard in the county where the child is living. If the father lives in another state and our state lacks any contacts with him, you may need to have the case heard there instead of here. Can the Department of Social Services help me?
Yes — the county Department of Social Services can help you establish or enforce child support. But this is all they do. If you have many issues such as custody or visitation you will need an attorney in private practice. How do I know how much child support I need?
There is no “right amount” of child support. Many states have adopted child support guidelines. In North Carolina, these guidelines on child support are often used by the judge in setting child support and by the parties or attorneys in settling support cases. In Bladen County the Chief District Court Judge has approved the guidelines to decide child support cases. What if I need more child support?
The Guidelines are flexible and allow for a child’s special needs, extremely high or low income and other factors the court finds to be important. Make a list of all monthly expenses for your household and apportion the expenses between yourself and the child or children. Be sure to set aside a certain portion of the rent, utilities and food for each child. You should also consider whether to apportion such expenses as car payments, gasoline and medical bills for each child. You must support the child or children and you are the one who best knows the facts, needs and expenses. The judge can go outside the Guidelines, but it is up to you to prove the need for a variance from the Guidelines. When my child is with my ex-spouse, can he or she reduce the child support paid to me?
No. But if the parties agree the spouse will take care of the child more days of the year, then the support may be figured on a Worksheet Schedule B which would decrease the amount. You will have to compare Worksheet A and B to understand the differences. If I cannot see my child for visitation, can I stop paying child support?
No. Under North Carolina law, denial of visitation is not legal justification for withholding child support. Neither is lack of child support a legal excuse for refusing the other parent visitation rights. The parents do not have the right to try to link together these separate obligations. Even if a parent is not paying any child support, he may still visit his children. And even if a parent is not allowing visitation, the children are still entitled to child support. When does child support stop?
Child support, without an agreement or court order, usually ends at the child’s eighteenth birthday, although it will continue beyond then if the child is still in high school, so long as the child is not over twenty years old. A separation agreement or court order by consent may set a higher age, such as upon graduation from college or at age twenty-one. Child support may end earlier than the above if the child is emancipated, such as by joining the military, moving away from home or getting married. Can the other parent’s paycheck be garnished for child support?
Yes. Under North Carolina law, garnishment of a paycheck for child support may be ordered for up to forty percent (40%) of the net available pay. Garnishment is a court proceeding that requires a lawyer or the help of the Department of Social Services. Garnishment is allowed only if a court order for child support is violated; it does not apply if there is only a separation agreement. Wage assignment is also used to take child support directly from a parent’s pay if there has been a prior child support order. What if I need more child support in the future?
If the child support is set out in a court order, you may petition the court to increase child support if you can show that there has been a substantial change of circumstances since the date the order was signed. Such a change usually consists of increased living expenses, inflation and an increase in the earnings of the other parent. Sometimes the parents can agree between themselves on a regular increase in child support. If they wish, they can enter into an agreement that adjusts child support annually on the basis of, say, the Consumer Price Index or the wage increases of the noncustodial parent. When the parents cannot agree, the court must resolve the matter and the custodial parent must prove that present child support is inadequate. Can child support also be reduced?
Yes. The court has the power to modify child support upwards or downwards, so long as there has been a substantial change of circumstances since the entry of the original order. Thus, for example, a parent who just lost his job or has had a substantial pay cut could petition the court to reduce the child support payments that he is making. Won’t child support be settled when I obtain a divorce?
Divorce decrees do not necessarily settle child support matters, and a support order can be entered before or after a final decree of divorce in North Carolina What if I have other questions?
You need to come in to the Johnson Law Firm and speak with an attorney. Nothing you read on this website is legal advice. You should not make any decisions unless you are advised by a licensed North Carolina attorney. The Johnson Law Firm would like to thank Sullivan & Grace, P.A. for use of material.
What is “Joint Custody”?
Joint custody is not defined by the North Carolina General Statutes. The statutes provide only that a court can order joint custody. However, most lawyers agree that joint custody can be defined in two ways:
- Joint legal custody: This term means that the parents will share in making all major decisions that affect the child. These decisions might include whether or not the child will go to private or public school, undergo elective surgery. or move with one parent to another state. It does not mean that the parents will jointly make day-to-day decisions. Neither does it mean that the child will spend the same amount of time with each parent.
- Joint physical custody: Sometimes referred to as “shared custody,” means that each parent will have an equal or nearly equal amount of time with the child. This can be accomplished in many ways. For example, the child can alternate weeks with each parent or spend three and a half days of each week with each one. However, the child must have a permanent address for purposes of school and medical records. One parent’s home should be designated as the “primary residence”.
What are the effects of joint legal custody?
Just as the definitions of joint custody differ, so do the effects of a joint custody arrangement. Joint legal custody will require both parents to discuss the child’s needs more frequently than with a sole custody arrangement. Joint legal custody means that both parents will need to cooperate with each other and reach agreements where the child is concerned. This may not be easy to do. If you and your spouse have been able in the past to set aside your other differences and discuss and agree on matters concerning the child, joint legal custody may be an acceptable solution. However, if your disagreements include issues concerning the child, the arguments and disagreements will continue well beyond your divorce and will frustrate any attempt at true joint legal custody.
What are the benefits of joint physical custody?
Joint physical custody was seen at one time as a wonderful answer to the problem of a child’s growing up without the opportunity to spend equal time with both parents. Ideally, a shared custody arrangement means that both parents maintain a “real home” for the child, including a room, toys, and clothes. This helps reinforce the idea that families are forever. In sole custody arrangements, the non-custodial parent’s every other-weekend visits may not allow a real parent- child relationship to form or continue. Both parent and child are trying to do everything in one weekend. A joint physical custody arrangement can allow both parents to spend real parental time with the child and thus develop a better relationship.
What are the disadvantages of joint physical custody?
Recently, it has become apparent that joint physical custody is not the ideal solution it was once thought to be. Too often the child may be shuttled back and forth between parents and have no real feeling of a “home.” Consistency is often difficult to achieve in such an arrangement. The rules may be different at each parent’s home — bedtime is 8:30 at Mom’s but 10:00 at Dad’s. Schoolwork sometimes suffers. For example, homework assigned while the child is staying at one home, but due to be turned in when he is at the other, can be inadvertently overlooked. Friends are different at each home and harder to keep up with, the babysitter may be different each time, and so on. Children who have difficulty adapting to change may find joint physical custody too chaotic. Generally, the parents must work very hard at such an arrangement. joint physical custody seldom reduces hostility between the parties and may even increase it. It requires two parents who maintain a commitment over time to put the needs of the child first and are able to create a conflict- free zone for their child. Parents who choose joint physical custody must be willing to have open and frequent communication with each other. joint physical custody requires two parents committed to be co-parents.
When is joint physical custody not advisable?
Joint physical custody is not advisable where there is a history of domestic violence, drug or alcohol abuse, child abuse or neglect by a parent, or where a parent suffers from a debilitating mental illness. Since joint physical custody requires joint decision making and a tremendous amount of cooperation between the parents, joint physical custody is not appropriate where there is a history indicating that the parents are unable to agree on child rearing. In addition, joint physical custody is not a good choice where the child involved becomes overanxious or confused when asked to cope with numerous things or has a temperament which makes it difficult for him or her to adapt easily to change.
What effect does a shared custody arrangement have on child support?
For purposes of determining child support, shared custody is defined as a parent’s visiting with the child for 123 or more overnights a year. “Shared custody” will result in a different amount of child support than in a sole custody situation. The increased overnights will be figured into the calculations and the parent will receive a “credit” for that time. This is based on the theory that the parent must provide substantial support for the child during the extended visits and therefore the other parent is saved that expense. Joint legal custody, however, has no effect on child support.
Can I be granted Joint custody by the court?
If the decision concerning joint custody cannot be reached by you and the other parent, you will have to ask the court to award joint custody. You should first decide whether you want joint legal or physical custody.
- If you want joint physical custody, you must have a workable schedule to propose. You must also be able to show that you have the time, the room and the ability to care for the child, and that such an arrangement will be the least disruptive to the child.
- Beyond that, for both joint legal and physical custody, you should be able to show to the judge that you have always been substantially involved with the child’s upbringing and have previously helped care for and make decisions concerning the child.
- You should be able to demonstrate that you and the other parent have usually been cooperative and communicative as to the child and that you have the ability to continue this relationship during your separation and divorce.
- Finally, all of your evidence should indicate to the judge that a joint custody arrangement would be in the best interest of the child.
My spouse wants joint custody – How can I keep this from happening?
Again, if this decision is left to a judge, you must show the judge the opposite of the above. Based on changing perceptions about joint custody, courts seem to be less inclined now to start with the assumption that joint custody is better than primary/secondary custody arrangements. It might be difficult for your spouse to convince a court that joint custody is appropriate when you can show that your spouse has rarely agreed with you on issues concerning the child, has had very little to do with caring for and raising your child, or if during your separation the child has been made a part of your disagreements and arguments. The court will need to know that you and your spouse are not good candidates for joint custody and that joint custody is not in the child’s best interest.
What are the pro’s and con’s of joint custody?
As mentioned earlier, joint custody, either legal or physical, gives both parents a greater opportunity to interact with the child and be a continuing part of the child’s life. Sometimes this means that child support payments are made more regularly and each parent will have a better idea of where and for what the support is used. Many times a child can continue to maintain a relationship with both parents that may not otherwise be possible. However, under joint custody the parents also have greater contact with each other than they would with a sole custody arrangement. For two bitter and uncooperative people this probably means that the arguments, disagreements and anger will continue. This in turn will create tension that is communicated to the child, and all the benefits of joint custody could well be negated by the parents’ behavior.
How do I know if joint custody will be right for me – and our child?
- A joint custody arrangement can be a good solution or a bad solution. Whether or not such an arrangement is right for you, your spouse and your child, depends entirely on the relationship that all of you have, and this relationship should be carefully considered when you make your decisions concerning custody. You should consider your child’s age, temperament and coping style, the current quality and nature of the parent-child relationships, and the practicality of such an arrangement. A successful joint custody arrangement requires a great deal of maturity, cooperation and a commitment to making the child’s needs a priority. A very important measure of whether or not joint custody is right for you is whether or not you and the other parent can be good “co-parents.” Co-parenting requires mutual commitments:1. Both parents will continue to be fully involved in making major decisions about their children’s health, education, welfare and religion.
- Parents will not place the children between them and their conflicts. Parents must be business-like partners. As business partners, the parents are not in love and may (and often do) have areas of disagreement. When there are disagreements regarding the children, the parents are cordial and work out their differences in a fair and equitable manner.
- Both parents view themselves as having a family. Neither parent refers to the other as a “visitor.” Each has a family home and each is entitled to make decisions and have a life style which the children will be a part of when in that parent’s home. Neither parent may interfere with the other’s lifestyle or home life; each parent must support the other’s relationship to the children.
- Children are not allowed to “play” one parent off of the other. Decisions are made by the parents, then handed down to the children. The parents must guide the children, not the other way around.
- Parents must communicate with one another. This means regular discussions of children’s activities, needs, progress, and conditions. There must be a sharing of significant events in the lives of the children.
- Parents must concede that they are jointly responsible for the rearing of the children and will work together to equitably share children’s expenses, living arrangements and care. Both must invest time to teachers’ conferences, doctors’ appointments, religious activities, etc.
- Parents must agree that, even though they have differences, they will value and respect each other as a co-parent, and that this means that the children need to be involved with both parents.
- Court must be seen only as the final option. All other means of settling problems must be tried first.If some or all of the requirements of co-parenting are lacking from your relationship with the other parent, joint custody could be a very poor solution. Joint custody, both legal and physical, can have an excellent effect on both the child and the parents — if the parents are able to work together on issues concerning the child. However, it can have disastrous results for the child if the parents cannot or will not coparent. The relationship you have with your spouse concerning your child will be the largest factor affecting the outcome of any joint custody arrangement you might choose.
What if I have other questions?
You need to come in to the Johnson Law Firm and speak with an attorney. Nothing you read on this website is legal advice.
You should not make any decisions unless you are advised by a licensed North Carolina attorney.
The Johnson Law Firm would like to thank Sullivan & Grace, P.A. for use of material.
If you are in need of legal assistance or have questions about our practice, please let us know by filling out the form below.