Custody & Placement FAQs
How does the court decide who gets custody and physical placement of a child?
The term custody refers to the right to make legal decisions regarding a child, such as school choice, religious training, medical care, and so on. The court must presume that joint legal custody is in the child’s best interests – that is, both parents have decision-making authority – unless there is evidence of interspousal battery or domestic abuse.
The term physical placement refers to how much time a child spends with each parent. You often hear of “visitation,”
but physical placement is now the correct legal term. Many couples manage to work out their own agreement on child custody and physical placement. This is the best solution for all concerned. The two of you will no longer be spouses after divorce, but you still are parents of your children. By agreeing on custody and placement, you will be better able to communicate with each other for years to come. And your children are less likely to be caught in the middle of parental disputes, one of the worst after-effects of divorce.
When couples have trouble agreeing on custody or placement, the judge or family court commissioner refers them to family court counseling. If the spouses still fail to work out their differences, the judge decides on custody and placement based on the child’s best interests. To make this decision, the judge weighs several factors. The court may appoint a guardian ad litem, an attorney who represents the child’s interests. To learn more, see the State Bar’s pamphlets, “Answering Your Legal Questions About Custody and Placement” and “Answering Your Legal Questions About Guardians Ad Litem in Family Court.”
How does the court determine child support payments?
If a parent has physical placement with the child less than 25 percent of the time, the court usually bases child support on a percentage of that parent’s gross (pre tax) income. The standard support percentages are: 17 percent for one child, 25 percent for two children, 29 percent for three children, 31 percent for four children, and 34 percent for five or more children. However, these percentages may be reduced for higher income levels. In addition, the court may adjust the standard support percentages upward or downward, if it determines that applying the standard percentages would be unfair in a particular case. If each parent has at least 25 percent physical placement with the child, which is known as shared placement, each parent’s gross income is considered in setting child support. Though the standard support percentages discussed above are part of the equation, the calculation is much more complex because it also considers the amount of physical placement each parent has with the child. In addition to the child support amount set by this calculation, shared placement parents also are responsible for the child’s variable costs (such as child care, tuition, and special needs) typically in proportion to the time that the parent has physical placement with the child. Sometimes one or both parents are paying child support already due to a previous divorce or paternity judgment. Under those circumstances, the court may reduce that parent’s gross income available for child support in this new case before applying the standard support percentages and calculations discussed above. If the court believes that either parent is shirking his or her obligation, the court may use the shirking parent’s earning capacity, instead of actual earnings, as the income from which to set child support. Even if the parent who receives child support fails to follow the physical placement schedule, the parent paying child support may not legally reduce or stop payments, unless that modification is specifically approved and ordered by the court. Doing so only hurts the child.
What can I do if my former spouse disobeys a court order regarding custody, physical placement, child support, maintenance, or debt payments?
You must petition the court to enforce its order. This is known as a contempt motion. After receiving the court papers, your former spouse must appear in court to report whether he or she has followed the court’s orders and to explain any lapses. After hearing the facts, the court decides whether your former spouse willfully disobeyed. The court may find your former spouse in contempt and grant him or her an opportunity to correct the contempt. Failure to do so can result in as much as six months in jail. The court also may issue other orders as necessary to remedy the contempt. If the other parent denies or substantially interferes with one or more periods of physical placement, you may bring a petition for enforcement of physical placement order.