An in-depth look at custody and the battle between Bristol Palin and Levi Johnston (Part 3)

By Erica Christian

Attorney, Cordell & Cordell, P.C., Milwaukee office

Note: This is Part 3 of a series of articles focusing on the Bristol Palin/Levi Johnston custody battle. Click here to read Part 1 and click here to read Part 2.

What about while the case is pending?

Paternity cases can take months to resolve.  I’m sure Levi would like to see Tripp while the case is pending and Bristol would probably like child support.  If the two can come to temporary arrangements, they could draft a stipulation and order for temporary orders.  If they cannot, either may be able to petition the court for temporary orders.  The Court can set temporary custody, placement and support which the parties must abide by during the pendency of the action.  Failure to abide by the temporary orders, and all court orders for that matter, may result in a finding of contempt which could include serious fines and/or jail time. 

 

 

In addition, in some cases the temporary orders are really a test.  If you successfully follow the orders, your attorney has a great argument that you are a fit and responsible parent in support of the placement schedule you are advocating.  But if you do not follow the orders, you can expect to take huge steps backwards when the Judge makes the final orders.  When it is your placement time, make sure you are picking the child up on time and dropping off on time; no excuses.  If you are granted visitation “at all reasonable times” and your goal is shared or primary placement, you better make sure you are requesting visitation as often as you possibly can.  Being busy is not an excuse.  If the record shows that you only saw your child 4 times in a month and you had 20+ opportunities this will weigh heavily on the Judge’s determination.  All orders should be followed to a T.  This includes paying any court ordered support in full and on time.  Read the temporary order multiple times to make sure you understand exactly what is expected of each of the parties.  If there is any provision that you do not understand, be sure to ask your attorney immediately. 

 

She is asking for child support?

Although the parties are fresh out of high school, they each are earning income as public figures.  According to Wikipedia, Bristol is a paid spokeswoman for the National Campaign to Prevent Teen and Unplanned Pregnancy and the Candie’s Foundation to inform young people about the negative consequences of teen pregnancy.  In addition, she likely has the financial support of her family.  On the other hand, Levi has agreed to public appearances, interviews and photo shoots; all for compensation.  In most states, if Bristol has primary placement, it doesn’t matter that she and her family can support Tripp, Levi would be responsible for paying support based on the compensation he is receiving and any other source of income.

All states have statutes governing child support.  These statutes describe what is considered income for support and the formula used to determine support.  The formula is typically dependent on the earnings of both parties and the placement schedule.  For example, in Wisconsin we have two formulas for support; one if one parent has less than 25% of the overnights in a given year and one if they both have more than 25% of placement.  If a parent has less than 25% of placement, his or her monthly support obligation would be a percentage of his or her gross monthly income depending on the number of children the parties have in common; 17% for one child.  If the payer is a high income earner (defined as gross annual income of $84,000 or more), the percentage is lower.  In less than 25% cases, the recipient’s income is not taken into consideration.  If each party has at least 25% of overnights, the formula considers the income of both parties and the overnight placement schedule.  Even if the parties have a shared equal placement schedule, one party could owe the other support.  The closer the parties are in gross earnings and placement time with the child, the lower the support payment.  However, the Judge could decide to deviate from the percentage formula based on an evaluation of statutory factors for deviation.  This is the Wisconsin formula.  Some states use net income as opposed to gross income and some take other factors into consideration.  

I often hear the following complaint, “I pay child support, why should I have to pay for (fill in the blank), isn’t that what child support is for.”  Most states do not have a statute which defines what support is supposed to include.  The use of the funds is typically at the sole discretion of the recipient.  “Support” can also include more than monthly payments to the other parent.  In addition to or as a substitution for the monthly payment, the parties could be ordered to share in expenses for the child.  One of the parties has to carry health insurance for the child.  In addition, there are the uninsured medical expenses, possible daycare costs and variable expenses to take into consideration.  All of these contributions can be in addition to a monthly support payment.  In addition to expenses, the dependency exemption on annual tax returns has value that can be taken into consideration when ordering support.  A domestic litigation attorney licensed in your state will be able to answer specific questions regarding support exposure and what additional obligations may be ordered as a substitution for or in addition to a monthly support payment.

 

What about the grandparents?

In most states, there are statutes which allow grandparents to seek custody of their grandchildren or a court ordered visitation schedule.  However, fit custodial parent have a due process right to the care, custody and control of their children which includes the right to decide who the child will associate with.[1]  At this point in time, no one has filed a request for grandparent visitation.

Bristol’s petition asks the court to prohibit Levi’s mother, Sherry Johnston, from having unsupervised visitation with the child based on a recent drug conviction.  Although Levi does not want her involved in the custody battle, I did not see any reference that Levi has any intention of keeping Tripp away from Bristol’s mother.  The Court can certainly make an order prohibiting unsupervised visitation with the child and Levi’s mother.  Assuming Levi objects to Bristol’s request, the Court would perform an evaluation of Tripp’s best interests when ruling on the matter. 

This is certainly not an exhaustion of the issues presented in this case.  Although theirs has a play by play by the media, the Bristol/Johnston custody case is a typical paternity action.  Both are being guided by competent attorneys who are each implementing a case strategy they have developed with their respective client.  If their case is like a majority of cases, I will be reading the terms of a settlement agreement at my next trip to the grocery store.

 

Note: This is Part 3 of a series of articles focusing on the Bristol Palin/Levi Johnston custody battle. Click here to read Part 1 and click here to read Part 2.

 


[1] In Troxel v. Granville, the US Supreme Court held that a Washington law which allowed any person to petition a state court for child visitation at any time, and authorized the court to order visitation rights for any person when visitation might serve the best interest of the child was unconstitutional as applied when the grandparents did not allege that the mother was an unfit parent and the mother never sought to cut off visitation entirely. 530 U.S. 57 (2000) 


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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