balance.pngWhat does “fairness” have to do with child custody and child support?  

For anyone who has been through a contested custody or support matter, the short answer is probably “nothing.”  Anytime a custody or support case can not be worked out between the parents, at least one parent, usually the father, is going to feel shorted, perhaps because of a miscarriage of justice or perhaps due to unreasonable expectations.

The major premise in child custody and support cases is that the welfare of the child is primary.  The law presumes that parents will act in the best interests of their child and when the parents share the same parenting philosophy, custody and support should be easily resolved by agreement. 


Unfortunately, the breakdown of the marriage often results in, or may have been caused by, a divergence in parenting philosophies.   Even worse, the child may become the “trophy” in the divorce to vindicate one or both parents position as to who precipitated the dissolution of the marriage.   When the parents are at odds over what is best for the child, the law steps in to resolve the dispute.


While dissatisfied fathers may feel the attorneys or judge are to blame for a stilted outcome, and they may share responsibility for it, the base criteria on custody and support issues are usually set by statutes enacted by state legislatures.  As political decisions, these statutes may or may not appear reasonable, or even rational.   However, the judges and attorneys are bound by these statutes and can only pursue whatever options the legislature has provided.  The time and effort required to pursue changes in the laws is generally beyond the resources of an individual, requiring fathers who have issues with the laws to join together in an effort to obtain changes in the laws.  There are groups which pursue the legislative issues of father’s rights and fathers who have been adversely impacted by the statutory assumption need to access the political process to effectuate change.


Within the discretion that the court may have, the judge is constrained by how the appellate courts have applied the laws in various situations.  While a trial judge may have some latitude, the judge generally is not going to venture out beyond what has been determined “correct” by higher courts.  In those instances where the statute allows leeway and the higher courts have not ruled on  a situation, the judge is going to consider the arguments and evidence of the parties, but also draw upon the judge’s own experience and perspectives.   


In order to seek fairness in contested custody and support issues, it is critical to know the prior rulings, experience, and perspectives of the judge assigned to the case.  If the assigned judge is known to have a perspective adverse to your goals, a change of judge may be available.  Many states allow a party to have the case reassigned from the judge simply because a party would rather not have that judge hear the case.  The timing and process of a change of judge varies by state and is very specific, such that a change of judge as a matter of right must be pursued promptly and properly.  A party may also take a change of judge if there is actual bias or conflict with the individuals, but that is a different consideration.  If custody and/or support are critical issues in your case and there is a concern that the assigned judge doesn’t share your perspective on those issues, than taking advantage of an option to obtain a different judge may be warranted.  While you can not “pick” the judge who will get the case, your attorney can evaluate from the remaining judges what might happen if the case is assigned to specific judge and whether a change of judge is going to assist in having your custody and support concerns being given a fair consideration.


The abilities and attention to the case of the attorneys are not to be over-looked in assessing whether the outcomes of the custody and support issues were fair.  The extent that your attorney  knows the attitudes and history of the judge and the opposing attorney can affect the outcome.  However, being represented by an attorney who knows your case and gives your case all the necessary attention is critical.


Finally, you, the client, have a significant role in the outcome of your case as well.  Providing your attorney every piece of information and every document, whether you find it important or not, will assist in allowing your attorney to pursue your goals for a fair outcome.   Your attorney must be your confidential advisor, especially in custody and support cases.  Without full disclosure of both positive and negative information, your attorney is limited in how to approach the case and advise you on how to proceed both in court and with your family.  Even with full disclosure, failure to heed your attorney’s advice may also frustrate obtaining a fair resolution of a contest custody or support case.


However, some issues are fairly “cut and dried” as to the “usual” custody and support cases. Unless the parties have substantial six figure incomes or there other extraordinary considerations, the “usual” child support will normally be imposed.   The actual “costs” of the child are not usually under consideration for the average wage earning father unless the children have extra medical or educational expenses.  How the mother spends the “usual” child support amount on the children (or not) is also not a consideration provided the children are adequately feed, clothed and housed.  The statutes have determined what the amount should be in most cases and the courts are not going to review every child expense to determine the “necessity” of the child support amount.  If the mother is not properly providing for the children from the child support, then the father has the burden of showing the court her failures.  Again, the law presumes the parents are acting in the best interests of the child until proven otherwise.


As psychologists have traditionally asserted that school age children need a stable school-year environment to be most successful in school, the every other weekend visitation arrangement has become standard so that the child is in the same home with the same schedule every school night.  Absent significant evidence to the contrary, most courts accept this premise as the standard.   When both parents work Monday through Friday during the day, the weekends are the only block of time to engage in special activities with the child and the court will alternate the weekends between the parents.  However, if one parent or both parents have a work schedule that permits time with the child during weekdays, other custody schedules can be accepted by courts as reasonable even in contested cases.


Even most proponents of making “shared custody” mandatory are quick to back track when shared time with the child is proposed.  Most “shared custody” proposals only address making the major parenting decisions, not time with the child.   Further, almost by definition, if the parties cannot agree on parenting issues such that the court has to decide custody, “shared custody” is probably not going to work.   While “shared custody” may appear to be clearly the “fairest” resolution of the custody issue, it may be “fair” in name only if the parties will not work at implementation or the physical custody schedule remains skewed.  


The support and custody  considerations are different in the initial divorce as to post-divorce proceedings.  The allocation of the debts or disparities in earning potential  in the initial divorce may allow for deviations from the usual support to be fair.  The emotions of the initial divorce proceeding may be recognized by the court as a phase that the parties can get past to impose shared custody on a reluctant mother in fairness to the father.  Conversely, post-divorce decisions to go into debt, change jobs, or a new family often are not considered making the initial divorce decisions now “unfair”, as these changes were pursued in light of the known divorce custody and support conditions.  


There are many factors in whether the result of a contested custody or support case was fair. Every contested case has its own issues and you should not compare your outcome to anyone else’s to fully appreciate whether the results were fair, but look at the total circumstances of your case to decide if the results were fair and, if not, consider your next options of appeal or further proceedings.

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2 comments on “Fairness

    I must take exception to the author’s assertion that psychologists agree regarding residential stability and standard visitation. Current research in this area reveals a very different picture. For example, prominent researcher and scholar, Dr. Joan B. Kelly, in a private correspondence with the Children’s Rights Council of Illinois said, “There is no data suggesting that children cannot go to school from two homes. More importantly, when fathers have their children ovenight during the week, they becomes more involved in school, which has been found to be advantageous to their children’s functioning and academic performance” (June 5, 2007).

    I would hope that prestigious firms like Cordell & Cordell would at least be familiar with the current research.

    Very interesting. I note that in all instances here, the father is trying to get more time with his children. Why not the other way around? Why is father always separated from his children? See my interview on Dad,s Divorce from August 5th with Ric Ortiz/ Angelene. The ‘norm’ of removing Dad from the home is not right, it’s gender discrimination. MC

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